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01 January 11, 2017 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, January 11, 2017 LOCATION: BOARD ROOM County of Riverside Administrative Center 4080 Lemon Street, First Floor, Riverside  COMMISSIONERS  Chair – John F. Tavaglione Vice Chair – Dana Reed Second Vice Chair – Chuck Washington Kevin Jeffries, County of Riverside John F. Tavaglione, County of Riverside Chuck Washington, County of Riverside To Be Appointed, County of Riverside Marion Ashley, County of Riverside Deborah Franklin / Art Welch, City of Banning Nancy Carroll / Lloyd White, City of Beaumont Joseph DeConinck / Tim Wade, City of Blythe Jim Hyatt / Jeff Hewitt, 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 Brian Berkson / Verne Lauritzen, City of Jurupa Valley Robert Radi / To Be Appointed, City of La Quinta Bob Magee / Natasha Johnson, City of Lake Elsinore Neil Winter / 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 To Be Appointed / 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 / To Be Appointed, City of Temecula Ben Benoit / Timothy Walker, City of Wildomar John Bulinski, Director, Governor’s Appointee Caltrans District 8 COMM-COMM-00064 Tara Byerly From: Tara Byerly Sent: Monday, January 09, 2017 11:08 AM To: Tara Byerly Cc: Jennifer Harmon; Anne Mayer; STANDIFO Subject: REVISED: RCTC CONFLICT OF INTEREST MEMO FOR THE JANUARY COMMISSION MEETING - 01.11.2017 Importance: High Good morning Commissioners, a Conflict of Interest Memo R... I have attached a revised conflict of interest (C01) memo to include S2 Engineering, Inc., which was inadverently omitted from the prior COI memo that was included in your agenda packet or in the email for the iPad users. Let me know if you have any questions or concerns. Thank you. Respectfully, 1111111 R 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 REVISED COI MEMO riverside County Transportation Commission TO: Riverside County Transportation Commission FROM: Jennifer Harmon, Clerk of the Board DATE: January 9, 2017 SUBJECT: Possible Conflicts of Interest — Riverside County Transportation Commission Agenda of January 11, 2017 The January 11, 2017 agenda of the Riverside County Transportation Commission includes items that may raise possible conflicts of interest. A Commissioner may not participate in any discussion or action concerning a contract or amendment if a campaign contribution of more than $250 is received in the past 12 months or 3 months following the conclusion from any entity or individual listed. Agenda Item No. 6D — Agreement for Railroad Right of Wav Property Maintenance Services Consultant(s): Joshua Grading & Excavating Thomas R. Craft, Owner P.O. Box 292329 Phelan, CA 92329 Agenda Item No. 6E — Agreements for Closed Circuit Television Maintenance and Repairs and Capital Improvements Consultant(s): Fibertronics Inc. Anthony S. Ababat, CEO 1449 Linville Lane Colton, CA 92324 Agenda Item No. 6F — Agreement with S2 Engineering for Construction Management Services for the Construction of the La Sierra Parking Lot Expansion Project Consultant(s): S2 Engineering, Inc. Sagar Pandey, Principal Engineer 8608 Utica Avenue Suite 100 Rancho Cucamonga, CA 91730 Tara Byerly From: Tara Byerly Sent: Thursday, January 05, 2017 7:00 AM To: Tara Byerly Cc: Jennifer Harmon; Anne Mayer; STANDIFO Subject: RCTC: January Commission Agenda - 01.11.2017 Importance: High Good morning Commissioners: The January Agenda for the Commission meeting scheduled for Wednesday, January 11, 2017 @ 9:30 a.m. is available. Please copy the link: http://www.rctc.org/uploads/media items/la nuary-11-2017.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, MO`r 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 Tara Byerly From: Tara Byerly Sent: Thursday, January 05, 2017 7:02 AM To: Tara Byerly Subject: RCTC: January Commission Agenda - 01.11.2017 Importance: High Good morning Commission Alternates, The January Agenda for the Commission meeting scheduled for Wednesday, January 11, 2017 @ 9:30 a.m. is available. Please copy the link: http://www.rctc.org/uploads/media items/ianuary-11-2017.original.pdf Respectfully, MIN r 111 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 www.rctc.org AGENDA* *Actions may be taken on any item listed on the agenda 9:30 a.m. Wednesday, January 11, 2017 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 – DECEMBER 14, 2016 Riverside County Transportation Commission Agenda January 11, 2017 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. FISCAL YEAR 2016/17 MID-YEAR REVENUE PROJECTIONS Page 1 Overview This item is for the Commission to: 1) Approve the mid-year Fiscal Year 2016/17 revenue projections of $173 million for Measure A revenues, $85 million for Local Transportation Fund (LTF) revenues, and $18.5 million for Transportation Uniform Mitigation Fee (TUMF) revenues; and 2) Approve the budget increase adjustments to LTF transfers in of $279,000, and expenditures and transfers out of $348,700 to reflect the revised LTF projections. 6B. FISCAL YEAR 2017/18 REVENUE PROJECTIONS Page 5 Overview This item is for the Commission to: 1) Approve the projections for Measure A revenues of $176 million for Fiscal Year 2017/18; 2) Approve the projections of the Local Transportation Fund (LTF) apportionment of $88 million for the Western Riverside County, Coachella Valley, and Palo Verde Valley areas for FY 2017/18; and 3) Approve the projections for Transportation Uniform Mitigation Fee (TUMF) revenues of $20 million for FY 2017/18. Riverside County Transportation Commission Agenda January 11, 2017 Page 3 6C. AMENDMENT TO THE 91 EXPRESS LANES OPERATOR AGREEMENT Page 11 Overview This item is for the Commission to: 1) Approve Agreement No. 13-31-105-02, Amendment No. 2 to the 91 Express Lanes Operator Agreement No. 13-31-105-00 (commonly referred to as the ORCOA), among the Orange County Transportation Authority (OCTA), the Commission, and Cofiroute USA, LLC (Cofiroute) to incorporate the final joint software license, escrow, and maintenance agreements; reduce the monthly cost allocated for the software license and maintenance agreements under the ORCOA; and revise Exhibit C to the ORCOA for extended pre-operation costs; and 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the amendment and the joint software agreements on behalf of the Commission. 6D. AGREEMENT FOR RAILROAD RIGHT OF WAY PROPERTY MAINTENANCE SERVICES Page 66 Overview This item is for the Commission to: 1) Award Agreement No. 17-33-028-00 to Joshua Grading & Excavating, Inc. (Joshua Grading) for railroad right of way (ROW) property maintenance services for a three-year term, and two one-year options to extend the agreement, in an amount of $2,750,000, plus a contingency amount of $250,000, for a total amount not to exceed $3 million; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement, including option years, on behalf of the Commission; 3) Authorize the Executive Director or designee to execute task orders awarded to the contractor under the terms of the agreements; and 4) Authorize the Executive Director or designee to approve the use of the contingency amount as may be required for these services. Riverside County Transportation Commission Agenda January 11, 2017 Page 4 6E. AGREEMENTS FOR CLOSED CIRCUIT TELEVISION MAINTENANCE AND REPAIRS AND CAPITAL IMPROVEMENTS Page 91 Overview This item is for the Commission to: 1) Approve Amendment No. 4, to Agreement No. 13-24-066-00 with Fibertronics, Inc. (Fibertronics) for closed circuit television (CCTV) security system capital improvements for an additional amount of $318,000, plus a contingency amount of $31,800, for a total additional amount of $349,800, and a total contract amount not to exceed $1,643,405; 2) Authorize the procurement of CCTV equipment through the use of the California Multiple Award Schedules (CMAS) pursuant to the Public Contract Code Section 10299(a) and the Commission’s Procurement Policy Manual in the amount of $667,000.00, plus a contingency amount of $66,700, for a total amount not to exceed $733,700; 3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 4) Authorize the Executive Director or designee to execute task orders awarded under the terms of the agreements; and 5) Authorize the Executive Director or designee to approve the use of the contingency amount as may be required for the CCTV maintenance, repairs, and capital improvements. 6F. AGREEMENT WITH S2 ENGINEERING FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE CONSTRUCTION OF THE LA SIERRA PARKING LOT EXPANSION PROJECT Page 97 Overview This item is for the Commission to: 1) Award Agreement No. 16-24-080-00 to S2 Engineering, Inc. (S2) to provide construction management (CM), materials testing, and construction surveying services for the La Sierra Parking Lot Expansion project, in the amount of $544,000, plus a contingency amount of $54,400, for a total amount not to exceed $598,400; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Authorize the Executive Director or designee to approve the use of the contingency amount as may be required for the project. Riverside County Transportation Commission Agenda January 11, 2017 Page 5 6G. SUBRECIPIENT AGREEMENT FOR RIVERSIDE TRANSIT AGENCY FOR PERRIS VALLEY LINE SHUTTLES Page 138 Overview This item is for the Commission to: 1) Approve Agreement No. 17-25-017-00 with the Riverside Transit Agency (RTA) for the Commission’s funding commitment related to the Perris Valley Line (PVL) shuttle services for a total amount not to exceed $6 million for a term of five years; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Authorize the Executive Director to approve and execute amendments to the agreement related to revised compensation amounts in subsequent years. 6H. FISCAL YEAR 2016/17 COMMUTER RAIL SHORT RANGE TRANSPORTATION PLAN AND BUDGET AMENDMENT Page 152 Overview This item is for the Commission to: 1) Approve an amendment of $20 million in federal Congestion Mitigation Air Quality (CMAQ) revenues to the Fiscal Year 2016/17 Commuter Rail Short Range Transit Plan (SRTP); and 2) Approve an increase to the FY 2016/17 budget of $4.7 million for CMAQ grant revenues and corresponding rail operations and shuttle service expenditures. 6I. RESOLUTION TO OBTAIN PROPOSITION 1B GRANT FUNDING Page 154 Overview This item is for the Commission to adopt Resolution No. 17-001, “Resolution of the Riverside County Transportation Commission Approving the Authorization for the Execution of the Certifications and Assurances for the Public Transportation Modernization, Improvement, and Service Enhancement Account Bond Program”. Riverside County Transportation Commission Agenda January 11, 2017 Page 6 6J. OPERATION OF THE FREEWAY SERVICE PATROL PROGRAM IN RIVERSIDE COUNTY Page 158 Overview This item is for the Commission to: 1) Approve Agreement No. 17-45-057-00 with the California Department of Transportation (Caltrans) for the operation of the Riverside County Freeway Service Patrol (FSP) program in an amount not to exceed $1,648,178 in state funding for Fiscal Year 2016/17; and 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. 7. PRESENTATION: 40TH ANNIVERSARY SPOTLIGHT – EXPANSION OF LEGISLATION 8. CALIFORNIA TRANSPORTATION COMMISSION’S ACTIVE TRANSPORTATION PROGRAM CYCLE 3 FOR FISCAL YEARS 2019/20 – 2020/21 Page 167 Overview This item is for the Commission to: 1) Approve the Riverside County Active Transportation Program (ATP) projects for inclusion in the Metropolitan Planning Organization (MPO) ATP Regional Program Cycle 3 consisting of the highest scoring implementation projects (85.5 to 87 pts) in the total amount of $6,627,537; 2) Submit the recommended projects to the Southern California Association of Governments (SCAG) for inclusion in the MPO ATP Regional Program and subsequent submittal to the California Transportation Commission (CTC) for final approval in March 2017; 3) Submit the MPO ATP regional projects to SCAG for inclusion in the Federal Transportation Improvement Program (FTIP) programming; and 4) Direct staff to coordinate with the MPO ATP Regional Program project sponsors regarding timely funding allocations, obligations, and project delivery. 9. LOCAL TRANSPORTATION FUND LOAN TO SUNLINE TRANSIT AGENCY Page 174 Overview This item is for the Commission to approve an advance of Local Transportation Fund (LTF) funds in the amount of $3 million to SunLine Transit Agency (SunLine). Riverside County Transportation Commission Agenda January 11, 2017 Page 7 10. 2017 STATE AND FEDERAL LEGISLATIVE PLATFORM Page 176 Overview This item is for the Commission to adopt the Commission’s 2017 State and Federal Legislative Platform. 11. ITEM(S) PULLED FROM CONSENT CALENDAR AGENDA 12. 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. 13. CLOSED SESSION 13A. CONFERENCE WITH LEGAL COUNSEL: EXISTING LITIGATION Pursuant to Government Code Section 54956.9(d)(1) Case No.(s) RIC 10016058 14. ADJOURNMENT The next meeting of the Commission is scheduled to be held on Thursday and Friday, January 26-27, 2017, Hyatt Palm Springs, 285 N. Palm Canyon Drive, Palm Springs, CA 92262. DETACH AND SUBMIT TO THE CLERK OF THE BOARD DATE: CHECK IF SUBJECT OF PUBLIC COMMENTS: O PUBLIC COMMENTS: AGENDA ITEM NO.: SUBJECT OF (AS LISTED ON THE AGENDA) NAME: AGENDA ITEM: PT-1° "VD IA 1,0 ei.C. PHONE NO.: ADDRESS: STREET Cil414 CITY ZIP CODE V PI - REPRESENTING: V NAME OF AGENCY / O IZATION / GROUP PHONE NO.: BUSINESS ADDRESS: STREET CITY ZIP CODE DATE: I ( ( PUBLIC COMMENTS: ` CHECK SUBJECT OF � COMMENTS: � PUBLIC COMMENTS: i nA "` 190 T e aide- Verome4A24 � �j AGENDA ITEM NO.: ' SSUBJECT OF J (AS LJSTED ON THE AGENDA) AGENDA ITEM: NAME: DETACH AND SUBMIT TO THE CLERK OF THE BOARD MaritA MR30..- cn- PHONE NO .:760 )(21C/-177.4 ADDRESS: STREET CITY ZIP CODE REPRESENTING: (xuder4. Cty.0 nSt,( 4401u a 1ndaGca-444` G'�� PHONE NO.: NAME OF AGENCY / ORGANIZATION / GROUP BUSINESS ADDRESS: STREET ZIP CODE January 10, 2017 Susan Bransen, Executive Director California Transportation Commission 1120 N St, MS-52 Sacramento, CA 95814 Anne Mayer, Executive Director Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Hasan Ikhrata, Executive Director Southern California Association of Governments (SCAG) 818 W. 7th Street, 12th Floor Los Angeles, CA 90017 VIA E-MAIL Re: Urgent Request to Reconsider Eligibility of CV Link Application Dear Ms. Bransen, Mr. Ikhrata, and Ms. Mayer: Our organizations are writing you to follow up with additional information that impacts the rescoring of the CV Link - Multi -Modal Transportation Corridor application. A number of our organizations submitted a request to rescore this application on November 28, 2016 based on missing Census tract information related to Narrative Question #1--Disadvantaged Communities (enclosed). CTC staff subsequently rescored the application resulting in the project's removal from the staff recommendations list that was approved by the Commission at the December 7, 2016 meeting. Since that time, additional information has come to light regarding this project application that warrants reconsideration of the project's eligibility in the Southern California Association of Government's (SCAG) competition for the Metropolitan Planning Organization (MPO) portion of Active Transportation Program funds. On December 28, 2016, Council Member G. Dana Hobart of the City of Rancho Mirage submitted a letter to CTC staff regarding additional inaccuracies and misrepresentations within the CV Link application. According to Mr. Hobart, the project sponsors failed to disclose within the application that the cities of Rancho Mirage and Indian Wells have withdrawn from the CV Link project, resulting in substantial gaps in the proposed 50-mile project. These two gaps constitute 10% of the project's length and greatly impact the stated benefits to disadvantaged community residents --in terms of access to services and jobs --as well as the claimed benefits to improved active transportation mobility. The 2017 Active Transportation Program Guidelines (Section 111.9, Page 5) state that "A project applicant found to have purposefully misrepresented information that could affect a project's score may result in the applicant being excluded from the program for the current cycle and the next cycle." Accordingly, we write to request that the California Transportation Commission exclude this project application from the current cycle and the next cycle in alignment with the adopted Program Guidelines. If the Commission chooses to not exclude this project application, then we request that SCAG and the Riverside County Transportation Commission rescore this application in light of a drastically different scope that would impact the project's score for Narrative Question #2--Potential for Increasing Walking and Bicycling. We thank the Commission for working with all stakeholders to ensure the success and integrity of the Active Transportation Program. Sincerely, Tony Dang, Executive Director California Walks Mariela Magafia, Policy Advocate Leadership Counsel for Justice & Accountability Encl. Jeanie Ward -Waller, Policy Director California Bicycle Coalition cc: Tom Kirk, Executive Director, Coachella Valley Association of Governments, tkirke.cvaa.orq Sarah Jepson, Manager, Active Transportation & Special Programs, Southern California Association of Governments (SCAG), Jepsonescag.ca.gov Stephen Patchan, Senior Planner, Southern California Association of Governments (SCAG), patchanscag.ca.gov Mitchell Weiss, Deputy Director, California Transportation Commission, mitchell.weiss(a.dot.ca.gov Laurie Waters, Associate Deputy Director, California Transportation Commission, laurie.waters(a�dot.ca.gov November 28, 2016 California Transportation Commission 1120 N St, MS-52 Sacramento, CA 95814 Re: Urgent Request to Reevaluate CV Link Application Dear Commissioners and CTC staff: In the interest of ensuring the success of the Active Transportation Program and all projects awarded ATP funds, especially with regard to assured benefits to disadvantaged communities, our organizations have carefully reviewed the successful project applications that have received staff recommendation for Cycle 3 awards. We discovered an issue in the CV Link - Multi -Modal Transportation Corridor application in the response to Narrative Question #1 - Disadvantaged Communities, that warrants additional review and possible rescoring of the application. The instructions for Narrative Question #1 state that the applicant "must provide information for all Census Tract/Block Group/Place # that the project affects" (emphasis added). This should include Census tracts that qualify as disadvantaged, as well as those that do not qualify as disadvantaged. A median of household incomes for all the affected Census tracts --both low- and high -income --adjacent to the project is then used to calculate a "severity" subscore which indicates the depth of disadvantage of the whole area affected by the project and is worth up to 4 points in the application. In the case of the CV Link project, there are dozens of Census tracts in the vicinity of the 50-mile project, some of which are very low-income but also many that are high -income. Unfortunately, the applicant agency only provided data for the Census tracts that meet the criteria for low-income (below 80% of median household income) in their response to Narrative Question #1 and failed to list the adjacent census tracts that are not low-income. Therefore, the median of all household incomes for all affected census tracts appears very low because only the low-income affected census tracts were used in the calculation, ultimately resulting in a higher severity subscore for the whole area adjacent to CV Link than should have been awarded. We write to you in earnest with the understanding that the Commission aims to adopt the staff recommendation at the December 7 meeting and that any changes to the staff recommended project list could have implications for funding a number of other projects on the list. Sincerely, Jeanie Ward -Waller, Policy Director California Bicycle Coalition Mariela Magana-Ceballos, Policy Advocate Leadership Counsel for Justice and Accountability Wendy Alfsen, Executive Director California Walks Bill Sadler, Senior CA Policy Manager Safe Routes to School National Partnership Kim Chen, Government Affairs Manager Laura Cohen, Western Region Director CA Pan -Ethnic Health Network Rails -to -Trails Conservancy Tamika Butler, Executive Director Angela Glover Blackwell, CEO Los Angeles County Bicycle Coalition PolicyLink RIVERSIDE COUNTY TRANSPORTATION COMMISSION ROLL CALL JANUARY 11, 2017 Present Absent County of Riverside, District I % 0 County of Riverside, District II RI 0 County of Riverside, District III ,A� 0 County of Riverside, District IV 0 X County of Riverside, District V �` 0 City of Banning ,� 0 City of Beaumont ,� 0 City of Blythe ,S 0 City of Calimesa ,1� 0 City of Canyon Lake ,0 0 City of Cathedral City � 0 City of Coachella ,� 0 City of Corona ,OJ 0 City of Desert Hot Springs ZIT0 City of Eastvale ,O 0 City of Hemet 2 0 City of Indian Wells ,r 0 City of Indio �' 0 City of Jurupa Valley ,o 0 City of La Qu i nta ,, 0 City of Lake Elsinore � 0 City of Menifee O ,� City of Moreno Valley 0 City of Murrieta / 0 City of Norco f�' 0 City of Palm Desert ,� 0 City of Palm Springs j:. ,�City of Perris 0 City of Rancho Mirage 0 City of Riverside ,2 0 City of San Jacinto � 0 City of Temecula � 0 City of Wildomar 0 Governor's Appointee, Caltrans District 8 � 0 AGENDA ITEM 4 MINUTES  RIVERSIDE COUNTY TRANSPORTATION COMMISSION    MINUTES  Wednesday, December 14, 2016    1. CALL TO ORDER / ROLL CALL    The Riverside County Transportation Commission was called to order by  Chair Scott Matas at 9:31 a.m. in the Board Room at the County of Riverside  Administrative Center, 4080 Lemon Street, First Floor, Riverside, California, 92501.    2. PLEDGE OF ALLEGIANCE    Commissioner Kevin Jeffries led the Commission in a flag salute.    Commissioners/Alternates Present Commissioners Absent    Marion Ashley Linda Krupa John J. Benoit  Rusty Bailey Bob Magee Ginny Foat  Ben Benoit Scott Matas Yxstian Gutierrez  John J. Benoit** Robert Radi Greg Pettis  David Brecker Dana Reed Michael Naggar  Joseph DeConinck Adam Rush* City of Perris  Deborah Franklin Karen Spiegel   Rick Gibbs John F. Tavaglione   Dawn Haggerty Chuck Washington   Steven Hernandez Ted Weill   Berwin Hanna Lloyd White   Jan Harnik Michael Wilson   Kevin Jeffries Neil Winter   Frank Johnston Ella Zanowic   Andrew Kotyuk         *Arrived after the meeting was called to order  **Commissioner John Tavaglione assigned his proxy vote to Commissioner John Benoit.  A letter was filed      with the Clerk of the Board.    3. PUBLIC COMMENTS    At this time, Chair Matas and Executive Director Anne Mayer presented Commissioners  Frank Johnston and Ella Zanowic with plaques to commemorate their tenure for serving  on the Commission.    Riverside County Transportation Commission Minutes  December 14, 2016  Page 2  Commissioner Zanowic expressed her gratitude for serving on the Commission and  shared her plans for retirement.    Commissioner Johnston expressed his gratitude for the opportunity to be elected to the  first city council for Jurupa Valley and serve on the Commission.      4. APPROVAL OF MINUTES – NOVEMBER 9, 2016    At this time, Commissioner John Tavaglione stated he has the proxy vote for  Commissioner John Benoit.    M/S/C (Radi/Hanna) to approve the November 9, 2016 minutes as submitted.    5. ADDITIONS / REVISIONS    There were no additions or revisions to the agenda.    6. CONSENT CALENDAR    M/S/C (Ashley/M.Wilson) to approve the following Consent Calendar items.    6A. PROPOSED 2017 COMMISSION/COMMITTEE MEETING SCHEDULE    Adopt its 2017 Commission/Committee Meeting Schedule.    6B. RESOLUTION TO AMEND THE APPENDIX OF THE CONFLICT OF INTEREST CODE    Adopt Resolution No. 16‐016, “Resolution of the Riverside County Transportation  Commission Amending the Appendix of the Conflict of Interest Code Pursuant to  the Political Reform Act of 1974”.    6C. QUARTERLY FINANCIAL STATEMENTS    Receive and file the Quarterly Financial Statements for the period ended  September 30, 2016.    6D. QUARTERLY SALES TAX ANALYSIS    Receive and file the sales tax analysis for Quarter 2, 2016 (2Q 2016).       Riverside County Transportation Commission Minutes  December 14, 2016  Page 3  6E. QUARTERLY INVESTMENT REPORT    Receive and file the Quarterly Investment Report for the quarter ended  September 30, 2016.    6F. AMENDMENT TO 91 EXPRESS LANES RCTC‐OCTA FACILITY AGREEMENT    1) Approve Agreement No. 16‐31‐025‐02, Amendment No. 2 to Agreement   No. 16‐31‐025‐00, with the Orange County Transportation Authority  (OCTA) for joint operating costs of the toll operations center in the amount  of $2,536,500, plus a contingency amount of $126,825, for a total amount  not to exceed $2,663,325;  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.    6G. DEPARTMENT OF CALIFORNIA HIGHWAY PATROL AGREEMENT FOR RCTC 91  EXPRESS LANES TOLL ENFORCEMENT    1) Approve Agreement No. 17‐31‐044‐00 to the Department of California  Highway Patrol (CHP) for toll enforcement on the RCTC 91 Express Lanes  for a three‐year term in the amount of $1,443,310, plus a contingency  amount of $56,690, for a total amount not to exceed $1.5 million;  2) Authorize the Chair or Executive Director, pursuant to legal counsel review,  to execute the agreement on behalf of the Commission; and  3) Authorize the Executive Director, or designee, to approve contingency  work as may be required for the agreement.    6H. RCTC 91 EXPRESS LANES CHANGEABLE MESSAGE SIGNS MAINTENANCE  AGREEMENT AND SOFTWARE PURCHASE    1) Award Agreement No. 17‐31‐045‐00 to Daktronics, Inc. (Daktronics) for the  maintenance and repair of the changeable message signs (CMS) for the   91 Express Lanes for a four‐year term, in the amount of $115,690, plus a  contingency amount of $11,569, for a total amount not to exceed  $127,259;  2) Award Agreement No. 17‐31‐046‐00 to Daktronics for CMS software for  the RCTC 91 Express Lanes, in the amount of $16,200, plus a contingency  amount of $1,620, for a total amount not to exceed $17,820;  3) Authorize the Chair or Executive Director, pursuant to legal counsel review,  to execute the agreements on behalf of the Commission; and  Riverside County Transportation Commission Minutes  December 14, 2016  Page 4  4) Authorize the Executive Director or designee to approve the use of the  contingency amount as may be required for the agreements.    6I. AGREEMENT FOR LANDSCAPE MAINTENANCE SERVICES    1) Award Agreement No. 17‐24‐023‐00 to Tropical Plaza Nursery, Inc.  (Tropical) for the provision of landscape maintenance services for a three‐ year term, and two, two‐year options to extend the agreement, in an  amount of $3,267,100, plus a contingency amount of $326,710, for a total  amount not to exceed $3,593,810;  2) Authorize the Chair or Executive Director, pursuant to legal counsel review,  to execute the agreement, including option years, 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 these services.    7. PRESENTATION:  40TH ANNIVERSARY SPOTLIGHT – COMMITMENT TO TRANSIT    John Standiford, Deputy Executive Director, presented an overview of public transit,  highlighting the following areas:     Original responsibilities: 1) coordinate state highway planning; 2) adopt Short  Range Transit Plans (SRTP); 3) coordinate transit service; 4) identify projects for  state and federal funding; and 5) coordinate county plans with state and regional  agencies;   RCTC’s current transit role – provide financial oversight role for seven bus  operators and rail;   SRTP process;   Southern California Regional Rail Authority (SCRRA) – Joint Powers Authority;  Comprised of five county transportation agencies; 536‐mile network; seven  service lines; and 63 stations;   RCTC’s Metrolink Budget for operating, rehabilitation, and capital; and   RCTC’s responsibility of owning nine commuter rail stations.    8. 2016 COORDINATED PUBLIC TRANSIT – HUMAN SERVICES TRANSPORTATION PLAN    Robert Yates, Multimodal Services Director, presented the Public Transit‐Human Services  Coordinated Transportation 2016 update (Coordinated Plan), highlighting the following  areas:     Coordinated Plan purposes;   Hard to serve target populations – Seniors and people with disabilities, people of  low income, and Military Veterans;  Riverside County Transportation Commission Minutes  December 14, 2016  Page 5   Extensive countywide outreach;   Findings in 10 themes identified – 1) expanded transit service area needs;   2) improved connectivity; 3) expanded hours and days of service; 4) regional  medical trip needs; 5) safe and comfortable rides; 6) safe pedestrian and bicyclist;  7) transit affordability; 8) information and mobility management; 9) coordination;  and 10) securing funding;   Five identified goals – 1) grow mobility options; 2) connect and coordinate  services; 3) promote safety and comfort; 4) improve health access; and 5) promote  and improve communication; and   Next steps – Call for Projects process commences fall 2017.    At Commissioner Karen Spiegel’s request, Robert Yates clarified the disabilities  categories, the funding for services, and the need for specialized transportation.    M/S/C (Radi/Gibbs) to approve the 2016 Coordinated Public Transit‐Human  Services Transportation Plan (2016 Coordinated Plan).    At this time, Commissioner Adam Rush joined the meeting.    9. ELECTION OF RIVERSIDE COUNTY TRANSPORTATION COMMISSION OFFICERS AND  APPOINTMENT OF EXECUTIVE COMMITTEE MEMBERS    At this time, Jennifer Harmon, Clerk of the Board, reviewed the election process from the  Commission’s Administrative Code.    Chair Matas, seconded by Commissioner Dana Reed, nominated Commissioner   John Tavaglione for Chair for 2017.  No other nominations were received.     Abstain:  Tavaglione    Commissioner Mike Wilson, seconded by Commissioner Marion Ashley, nominated  Commissioner Dana Reed for Vice Chair.  No other nominations were received.     Abstain:  Reed    Commissioner Tavaglione, seconded by Commissioner Frank Johnston, nominated  Commissioner Chuck Washington for Second Vice Chair.  No other nominations were  received.    Chair Matas closed the nominations.  John Tavaglione was elected as the Commission’s  Chair, Dana Reed as Vice Chair, and Chuck Washington as Second Vice Chair for 2017.       Riverside County Transportation Commission Minutes  December 14, 2016  Page 6  Appointment of Executive Committee Representatives    At this time, Chair Matas called for a recess for the representatives of the following groups  to meet and determine their respective representatives to the Executive Committee as  follows: 1) the cities of Corona, Moreno Valley, Murrieta, Riverside, and Temecula to  appoint two representatives; 2) the cities of Banning, Beaumont, Calimesa, Canyon Lake,  Eastvale, Hemet, Jurupa Valley, Lake Elsinore, Menifee, Norco, Perris, San Jacinto, and  Wildomar to appoint one representative; and 3) the cities of Blythe, Cathedral City,  Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs,  and Rancho Mirage to appoint one representative to the Executive Committee.    The Commission reconvened and Chair Matas called for the groups to announce their  representatives to the Executive Committee.    Commissioner Rusty Bailey announced the reappointments of Commissioner Spiegel and  Commissioner Gibbs to the Executive Committee to represent the cities of Corona,  Moreno Valley, Murrieta, Riverside, and Temecula.    Commissioner Ben Benoit announced his reappointment to the Executive Committee to  represent the cities Banning, Beaumont, Calimesa, Canyon Lake, Eastvale, Hemet, Jurupa  Valley, Lake Elsinore, Menifee, Norco, Perris, San Jacinto, and Wildomar.    Commissioner Jan Harnik announced the appointment of Commissioner  Mike Wilson to the Executive Committee to represent the cities of Blythe, Cathedral City,  Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs,  and Rancho Mirage.    At this time, Ms. Harmon reminded the Executive Committee members the appointment  to the Executive Committee is for a two‐year term.  Also, with the election of Supervisor  Washington as an officer, there is one vacant supervisor appointment on the Executive  Committee, which will be filled by Supervisor Jeffries by default as he is the only remaining  supervisor that is not currently a member.    In response to Commissioner Jeffries’ suggestion for Supervisor Marion Ashley to fill the  vacancy, Ms. Harmon explained Supervisor Ashley is currently a member of the Executive  Committee filling one of the three supervisor appointments.  Supervisor Benoit is also a  member.  Therefore, with Supervisors Tavaglione and Washington serving as officers on  the Executive Committee, the remaining three supervisors fill the supervisor  appointments for 2017.    At this time, Chair Matas expressed appreciation to the Commissioners for their service.       Riverside County Transportation Commission Minutes  December 14, 2016  Page 7  10. ITEM(S) PULLED FROM CONSENT CALENDAR FOR DISCUSSION    There were no items pulled from the Consent Calendar.    11. COMMISSIONERS/EXECUTIVE DIRECTOR’S REPORT    11A. Anne Mayer announced:   On December 7, the California Transportation Commission (CTC) held its  meeting in Riverside at the County Administrative Center Board Room,  followed by a well‐attended reception.  She expressed appreciation to the  County Information Technology staff that assisted with the meeting and  reception;   On December 8, Transportation Secretary Brian Kelly joined staff for a  helicopter tour of key projects in the Inland Empire, including 91 Project  and the I‐15 Express Lanes project;   The special trains for the Festival of Lights at the Mission Inn in Riverside.   Flyers will be distributed to the Commissioners; and   Reminded the Commissioners there will be no December committee  meetings due to the Christmas Day holiday.    11B. Jennifer Harmon reminded the Commissioners to return the dinner and lodging  form for the annual Commission Workshop on January 26 and 27, and the  reappointment request form.    11C. Chair Matas expressed it has been an honor to serve as Chair for 2016, and also to  serve on the Executive Committee.  He wished everyone Happy Holidays and a  safe New Year.    12. ADJOURNMENT    There being no further business for consideration by the Riverside County Transportation  Commission, Chair Matas adjourned the meeting at 10:15 a.m.  The next Commission  meeting is scheduled to be held at 9:30 a.m., Wednesday, January 11, 2017, 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: January 11, 2017 TO: Riverside County Transportation Commission FROM: Theresia Trevino, Chief Financial Officer Michele Cisneros, Deputy Director of Finance THROUGH: Anne Mayer, Executive Director SUBJECT: Fiscal Year 2016/17 Mid-Year Revenue Projections STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve the mid-year Fiscal Year 2016/17 revenue projections of $173 million for Measure A revenues, $85 million for Local Transportation Fund (LTF) revenues, and $18.5 million for Transportation Uniform Mitigation Fee (TUMF) revenues; and 2) Approve the budget increase adjustments to LTF transfers in of $279,000, and expenditures and transfers out of $348,700 to reflect the revised LTF projections. BACKGROUND INFORMATION: Prior to the beginning of FY 2016/17, staff made projections regarding the revenues to be received from Measure A, LTF, and TUMF funds for budget purposes. Staff tracks the Measure A, LTF, and TUMF revenues on a monthly basis. Current trends indicate Measure A and LTF receipts are about 9.6 percent and 13.7 percent higher, respectively, for the six months ended December 31, 2016, compared to the same period last year. The overall upward yet slowing trend in receipts over the past six months reflects some improvement in sales tax revenues compared to the actual receipts during the same period in FY 2015/16. For comparison purposes, the FY 2015/16 actual revenues reflected an increase of 2.8 percent and 3 percent in Measure A and LTF revenues, respectively, from the FY 2014/15 levels. FY 2016/17 TUMF receipts to date are lower than the FY 2015/16 trend; however, monthly TUMF receipts tend to fluctuate significantly – making it difficult to identify and project any trend. FY 2015/16 TUMF revenues were 14 percent higher than FY 2014/15 and at the highest level since FY 2006/07. Sales tax revenues have rebounded from the economic downturn’s low point in 2010. The unemployment rate continues to decrease and new jobs are being added, primarily in the construction and administrative support service industries. Home sale transactions continue to rise. These indicators support an expanding economy. Nonetheless, staff will continue to take a conservative approach to this year’s mid-year projection analysis based on the revenue trend 1 Agenda Item 6A noted through December 2016. Staff recommends the Commission maintain the current year revenue projections for Measure A, LTF, and TUMF revenues projections as follows: Revenue Projections Original (January 2016) FY 2016/17 Budget Revised for Mid- Year Adjustment Increase (Decrease) from Budget Measure A $ 177,000,000 $ 173,000,000 $ 173,000,000 $ 0 LTF 85,000,000 85,000,000 85,000,000 0 TUMF 18,500,000 18,500,000 18,500,000 0 For reference purposes, audited revenues for FY 2015/16 were approximately $167,630,000 (Measure A), $83,776,000 (LTF), and $19,789,000 (TUMF). The Measure A and LTF revenue projections for FY 2016/17 are 3.2 percent and 1.5 percent higher than the FY 2015/16 actual revenues, respectively. The TUMF revenue projection reflects the prior fiscal year’s actual revenue with a 7 percent decrease due to the staff’s conservative approach and the fluctuating trends. Any change in Measure A revenue projections has a direct effect on the distributions to the geographic areas and related local streets and roads (LSR) programs. Since there is no change in the Measure A revenue projections, no adjustments are required for LSR expenditures and Coachella Valley highways and regional arterials. Since there is no change in Measure A revenues, there is no change in the 1 percent statutory limitation on administrative salaries and benefits. Based on preliminary analysis through December 31, 2016, it appears that this limitation will not be exceeded. Additionally, the original Measure A administrative allocation $3,250,000 is sufficient to cover FY 2016/17 administrative costs. This allocation does not exceed the 4 percent limitation on administration costs adopted by the Commission in the prior year. The LTF audit was completed and financial statements were issued in October 2016. Staff revised the original LTF projections to include the carryover that is available to the local governments and transit agencies amount to approximately $9,299,000. Staff recommends the LTF administrative allocation to the Commission remain unchanged at $1 million. Expenditure adjustments are required for Commission and Southern California Association of Governments planning of approximately $279,000 and $69,700, respectively. Since the Commission administrative and planning allocations may be transferred to the General fund, similar adjustments to transfer in and out are also needed. The increase for SB 821 bicycle and pedestrian projects of approximately $179,000 does not require a budget adjustment, as this amount will be included in the amount available for the next call for projects. The increase in the LTF balance available for apportionments for transit operators of approximately $7,894,000 also does not require a budget adjustment as this amount will be available for any transit allocation adjustments based on amendments to transit operator Short Range Transit Plans. 2 Agenda Item 6A Upon Commission approval, staff will provide this updated information to the necessary local governments and transit operators. Additionally, staff will continue to monitor FY 2016/17 revenues to determine if any adjustments to the revenue projections or Measure A and LTF administration are necessary. Financial Information In Fiscal Year Budget: No Year: FY 2016/17 Amount: $279,000 sources $348,700 uses Source of Funds: LTF Budget Adjustment: Yes GL/Project Accounting No.: $ 279,000 106 65 59001 279,000 601 62 97001 69,700 601 62 86205 Fiscal Procedures Approved: Date: 12/15/2016 Attachment: Riverside County LTF FY 2015/16 Apportionment 3 Revised Original Projection Projection (Decrease) (1/11/2017)(04/25/16)Increase Estimated Carryover (Unapportioned)9,299,411$ -$ 9,299,411$ Est. Receipts 85,000,000 85,000,000 - TOTAL 94,299,411 85,000,000 9,299,411 Less: County Auditor-Controller Administration 12,000 12,000 - Less: RCTC Administration 1,000,000 1,000,000 - Less: RCTC Planning (3% of revenues)2,828,982 2,550,000 278,982 Less: SCAG Planning (3/4 of 1% of revenues)707,246 637,500 69,746 BALANCE 89,751,183 80,800,500 8,950,683 Less: SB 821 (2% of balance)1,795,024 1,616,010 179,014 BALANCE AVAILABLE BEFORE RESERVES 87,956,159 79,184,490 8,771,669 Less: 10% Transit Reserves 8,795,616 7,918,449 877,167 BALANCE AVAILABLE FOR APPORTIONMENT 79,160,543$ 71,266,041$ 7,894,502$ Population FY 2016/17 Revised FY 2016/17 Original (Decrease) APPORTIONMENT Population % of Total Apportionment Apportionment Increase Western:1,835,439 79.51% 62,940,452.31$ 56,663,542.92$ 6,276,909$ Rail 22%13,846,900 12,465,979 1,380,920 Transit 78%49,093,553 44,197,563 4,895,989 Coachella Valley 448,413 19.42%15,376,895 13,843,392 1,533,503 Palo Verde Valley 24,589 1.07%843,196 759,106 84,090 2,308,441 100.00%79,160,543$ 71,266,041$ 7,894,502$ ALLOCATION OF TRANSIT RESERVES (in accordance with Reserve Policy adopted January 12, 2005): Western: Rail 1,538,544$ Transit: RTA 4,540,416$ Banning 169,633 Beaumont 230,513 Corona 208,200 Riverside 306,077 Subtotal Transit 5,454,839$ 5,454,839 Subtotal Western 6,993,384 Coachella Valley 1,708,544 Palo Verde Valley 93,688 Total Reserves 8,795,616$ NOTES: Estimate for Planning Purposes, subject to change and rounding differences Population Source: California Department of Finance, Demographic Research Unit as of January 1, 2015 Allocation of Reserves: FY 2014/15 SRTP Funding Allocations Approved 7/9/14 RIVERSIDE COUNTY LOCAL TRANSPORTATION FUND FY 2016/17 APPORTIONMENT (Revised) N:\LTF\2016-2017 Apportionments Mid-Yr_1.11.17.xlsx 12/12/201612:57 PM 4 AGENDA ITEM 6B Agenda Item 6B RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: January 11, 2017 TO: Riverside County Transportation Commission FROM: Theresia Trevino, Chief Financial Officer Michele Cisneros, Deputy Director of Finance THROUGH: Anne Mayer, Executive Director SUBJECT: Fiscal Year 2017/18 Revenue Projections STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve the projections for Measure A revenues of $176 million for Fiscal Year 2017/18; 2) Approve the projections of the Local Transportation Fund (LTF) apportionment of $88 million for the Western Riverside County, Coachella Valley, and Palo Verde Valley areas for FY 2017/18; and 3) Approve the projections for Transportation Uniform Mitigation Fee (TUMF) revenues of $20 million for FY 2017/18. BACKGROUND INFORMATION: Prior to the commencement of the annual budget process, the Chief Financial Officer presents to the Commission the projections for Measure A, LTF, and TUMF revenues related to the next fiscal year. These revenue projections include consideration of historical and current trends of receipts and economic data collected from various sources. The source of data is the quarterly sales tax forecast of Measure A revenues prepared by MuniServices, LLC. Measure A The Measure A projection consists of revenues generated from the local half-cent transactions and use tax approved by voters in November 2002. The Measure A funds are principally used to fund highway, regional arterial, local streets and roads, new corridors, economic development, bond financing, bus transit, commuter rail, commuter assistance, and specialized transportation projects in the three geographic areas of Riverside County, as defined in the Measure A Expenditure Plan. The percentage of Measure A revenues allocated to each of these geographic areas is based on return to source of the sales tax revenues generated. FY 2017/18 represents the ninth year of the 30-year term of the 2009 Measure A. The Measure A projection for FY 2017/18 is $176 million. The estimate is based on the mid-year projection for FY 2016/17 and a 1.7 percent increase over the FY 2016/17 estimate. 5 Agenda Item 6B This increase is conservative and represents cautious optimism based on current economic forecast information and recent fiscal year trends. This projection will become the basis for the preparation of the FY 2017/18 budget. The budget process typically commences in January of each year following the development of the Measure A revenue projections. Additionally, the amounts for the local streets and roads programs are usually provided to the local jurisdictions for planning purposes. After the deduction for administration of $3.4 million, which is approximately 1.9 percent of Measure A revenues, the amount available for distribution to the three geographic areas is $172.6 million, which is allocated as follows: Geographic Area Amount Western Riverside County $ 133,414,000 Coachella Valley 38,171,000 Palo Verde Valley 1,015,000 Total $ 172,600,000 Local Transportation Fund The LTF projection consists of revenues generated from a quarter cent of the statewide sales tax. These LTF funds are principally used to fund transit requirements within the county of Riverside (County). The Transportation Development Act (TDA) legislation that created LTF requires the County Auditor Controller to annually estimate the amount of revenues expected to be generated from the sales tax. The estimate then becomes the basis for geographic apportionment and for claimant allocation through the Short Range Transit Plan (SRTP) process, which commences in January for the next fiscal year. While the County is the taxing authority and maintains custodial responsibility over the LTF revenues, the Commission by statute is charged with administration of the LTF funding process. Therefore, the practice has been for staff to develop the revenue estimate and then submit it to the County Auditor Controller for concurrence. Once the Commission and the County agree on a revenue amount, staff prepares the statutorily required apportionment. Apportionment is the process that assigns revenues to the three major geographic areas as defined by TDA law within the County: Western Riverside County, Coachella Valley, and Palo Verde Valley. The revenues are divided based on the respective populations for each area. The apportionment occurs after off-the-top allocations for administration to the County and Commission and set asides for Southern California Association of Governments planning (3/4 of 1 percent), local planning activities (3 percent), and bicycle and pedestrian projects (2 percent). Attached is the FY 2017/18 LTF apportionment based on a revenue estimate of $88 million. The estimate will be submitted to the County for its concurrence. The estimate is based on the mid-year projection for FY 2016/17 and assumes a 3.5 percent increase over the FY 2016/17 estimate. This increase is conservative and represents cautious optimism based on current 6 Agenda Item 6B economic forecast information. After the deductions for administration of $1,050,000 and set-asides of approximately $4,985,000, the amount available for apportionment before reserves is approximately $81,965,000. The balance available for apportionment before reserves is as follows: Geographic Area Amount Western Riverside County $ 65,228,000 Coachella Valley 15,852,000 Palo Verde Valley 885,000 Total $ 81,965,000 In accordance with Reserve Policy adopted by the Commission at its January 12, 2005 meeting, a reserve of 10 percent for each apportionment area will be established and set aside for FY 2017/18, for unforeseen cost increases or other emergency. For the Western Riverside County apportionment area, a portion of the reserve will be allocated to each of the transit operators. For public bus transit operators, the allocation of the reserve is based on each operator’s proportionate share of FY 2015/16 LTF operating allocations. Operators may access reserve funds by amending their SRTPs through the established amendment and Commission approval process. Transportation Uniform Mitigation Fee The TUMF projection consists of revenues generated from fees charged to new development to ensure it pays for the new transportation facilities needed to accommodate growth. As a result of a memorandum of understanding executed in 2008 between the Commission and the Western Riverside Council of Governments, the administrator of the TUMF program, the Commission receives 48.7 percent of the TUMF revenues, after an administrative allocation for the Commission’s regional arterial program. The revenue estimate for FY 2017/18 is $20 million. The estimate is based on the projection for FY 2016/17, and assumes an 8.1 percent increase. Next Steps Upon Commission approval, staff will provide this information to the local jurisdictions and transit operators for planning purposes. Staff will continue to monitor FY 2016/17 revenues during the development of the FY 2017/18 budget to determine if any adjustments to the revenue projections are necessary. 7 Agenda Item 6B Financial Information In Fiscal Year Budget: N/A Year: FY 2017/18 Amount: $176,000,000 Measure A; $88,000,000 LTF; $20,000,000 TUMF Source of Funds: Measure A, LTF, and TUMF Budget Adjustment: N/A GL/Project Accounting No.: Measure A $ 3,400,000 001001 401 40101 101 1X 40101 40,501,000 623999 401 40101 262 31 40101 14,691,000 613999 401 40101 261 31 40101 8,100,000 654199 401 40101 265 33 40101 2,025,000 269 62 40101 2,531,000 260 26 40101 844,000 270 26 40101 1,985,000 632199 401 40101 263 41 40101 11,913,000 266 72 40101 38,515,000 267 71 40101 10,721,000 264 19 40101 1,588,000 683999 401 40101 268 31 40101 19,085,000 563999 401 40101 256 31 40101 13,360,000 257 71 40101 5,726,000 258 26 40101 1,015,000 234 71 40101 LTF 88,000,000 601 62 40102 TUMF 10,000,000 725000 416 41607 210 72 42110 10,000,000 735000 416 41607 210 73 42110 Fiscal Procedures Approved: Date: 12/15/2016 Attachments: 1) Measure A Program Allocation FY 2017/18 2) Riverside County LTF FY 2017/18 Apportionment 8 Revenues 176,000,000$ Less: Administration 3,400,000 APPORTIONMENT TO PROGRAMS 172,600,000$ Western County Highway Improvements 40,501,000$ New Corridors 14,691,000 Public Transit Commuter Rail 8,100,000 Intercity Bus 2,025,000 Specialized Transit-Operations 2,531,000 Specialized Transit-CTSA 844,000 Commuter Services 1,985,000 Regional Arterial 11,913,000 Local Streets & Roads 38,515,000 BANNING 552,000$ BEAUMONT - CALIMESA 155,000 CANYON LAKE 174,000 CORONA 3,950,000 EASTVALE 1,255,000 HEMET 1,656,000 JURUPA VALLEY 1,896,000 LAKE ELSINORE 1,280,000 MENIFEE 1,624,000 MORENO VALLEY 3,829,000 MURRIETA 2,299,000 NORCO 643,000 PERRIS 1,476,000 RIVERSIDE 7,280,000 SAN JACINTO 836,000 TEMECULA 2,929,000 WILDOMAR 604,000 RIVERSIDE COUNTY 5,211,000 RCTC Regional Arterial 866,000 Bond Financing 10,721,000 Economic Development Projects 1,588,000 SUBTOTAL―Western County 133,414,000 Coachella Valley Highways & Regional Arterials 19,085,000 Local Street & Roads 13,360,000 CATHEDRAL CITY 1,461,000$ COACHELLA 602,000 DESERT HOT SPRINGS 466,000 INDIAN WELLS 232,000 INDIO 1,866,000 LA QUINTA 1,449,000 PALM DESERT 2,660,000 PALM SPRINGS 2,007,000 RANCHO MIRAGE 874,000 RIVERSIDE COUNTY 1,743,000 Specialized & Public Transit 5,726,000 SUBTOTAL―Coachella Valley 38,171,000 Palo Verde Valley Local Street & Roads 1,015,000 BLYTHE 826,000$ RIVERSIDE COUNTY 189,000 SUBTOTAL―Palo Verde Valley 1,015,000 TOTAL 172,600,000$ Note: Estimate for Planning Purposes, subject to change and rounding differences. RIVERSIDE COUNTY TRANSPORTATION COMMISSION MEASURE A PROGRAM ALLOCATION (PROJECTION) FY 2017/18 ATTACHMENT 1 9 Original Projection (1/11/2017) Estimated Carryover (Unapportioned)-$ Est. Receipts 88,000,000 TOTAL 88,000,000 Less: County Auditor-Controller Administration 12,000 Less: RCTC Administration 1,050,000 Less: RCTC Planning (3% of revenues)2,640,000 Less: SCAG Planning (3/4 of 1% of revenues)660,000 BALANCE 83,638,000 Less: SB 821 (2% of balance)1,672,760 BALANCE AVAILABLE BEFORE RESERVES 81,965,240 Less: 10% Transit Reserves 8,196,524 BALANCE AVAILABLE FOR APPORTIONMENT 73,768,716$ Population FY 2017/18 Original APPORTIONMENT Population % of Total Apportionment Western: 1,868,306 79.58% 58,702,142$ Rail 22%12,914,471 Transit 78%45,787,671 Coachella Valley 454,097 19.34%14,267,722 Palo Verde Valley 25,425 1.08%798,852 2,347,828 100.00%73,768,716$ ALLOCATION OF TRANSIT RESERVES (in accordance with Reserve Policy adopted January 12, 2005): Western: Rail 1,434,941$ Transit: RTA 4,218,202$ Banning 157,640 Beaumont 218,739 Corona 201,565 Riverside 291,373 Subtotal Transit 5,087,519$ 5,087,519 Subtotal Western 6,522,461 Coachella Valley 1,585,302 Palo Verde Valley 88,761 Total Reserves 8,196,524$ NOTES: Estimate for Planning Purposes, subject to change and rounding differences Population Source: California Department of Finance, Demographic Research Unit as of January 1, 2016 Allocation of Reserves: FY 2015/16 SRTP Funding Allocations Approved 7/8/15 RIVERSIDE COUNTY LOCAL TRANSPORTATION FUND FY 2017/18 APPORTIONMENT (Original) N:\LTF\2017-2018 Apportionments 1.11.17.xlsx 12/12/201612:57 PM ATTACHMENT 2 10 AGENDA ITEM 6C Agenda Item 6C RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: January 11, 2017 TO: Riverside County Transportation Commission FROM: Jennifer Crosson, Toll Operations Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Amendment to the 91 Express Lanes Operator Agreement STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve Agreement No. 13-31-105-02, Amendment No. 2 to the 91 Express Lanes Operator Agreement No. 13-31-105-00 (commonly referred to as the ORCOA), among the Orange County Transportation Authority (OCTA), the Commission, and Cofiroute USA, LLC (Cofiroute) to incorporate the final joint software license, escrow, and maintenance agreements; reduce the monthly cost allocated for the software license and maintenance agreements under the ORCOA; and revise Exhibit C to the ORCOA for extended pre-operation costs; and 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the amendment and the joint software agreements 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 through the use of the existing contractor, Cofiroute. In November 2016, the Commission approved an amendment to the ORCOA to reflect a reduction in total costs due to a reduction in the annual escalation rate and the removal of the customer assistance patrol from the scope of work. Staff is requesting an additional amendment to the ORCOA to incorporate the final joint agreements related to the use and maintenance of the Revenue and Account Management Systems (RAMS) software with Cofiroute, to reduce the monthly costs under the ORCOA for the software license and maintenance agreements and to reallocate funds originally anticipated for the Commission’s share of joint operating costs to extended pre-operations costs. The ORCOA includes three items related to the RAMS software that required further negotiation upon completion of the software updates to incorporate the Commission’s extension of the 91 Express Lanes: • RAMS Software License Agreement (License Agreement), • Software Escrow Agreement (Escrow Agreement), and • Software Maintenance Agreement (Maintenance Agreement). 11 Agenda Item 6C Updates to the RAMS software have been completed for the inclusion of the Commission’s extension of the 91 Express Lanes. Commission and OCTA staff worked with Cofiroute to finalize the terms of the License Agreement, Escrow Agreement, and Maintenance Agreement. All three agreements have been negotiated as joint agreements with OCTA, and the costs will be shared equally. The License Agreement grants the Commission and OCTA a joint non-exclusive license to use the RAMS software on the computer hardware and software that operates the 91 Express Lanes. The annual license fee was included in the ORCOA as an agency specific cost at an initial annual amount of $91,875 per year per agency. Commission and OCTA staff negotiated a lower initial year amount of $87,500 per agency by entering into a shared license agreement with OCTA. The monthly amount charged to each agency under the ORCOA for the license fee will be adjusted in the ORCOA to reflect the reduced cost. The Commission’s annual license fee may increase if the Commission or OCTA require additional upgrades to the RAMS software. The license fee is not subject to annual escalation due to other factors. The Escrow Agreement sets forth Cofiroute’s requirement to deposit a copy of the RAMS source code and certain related documentation related to the RAMS software into an escrow account. The Escrow Agreement also sets forth both the Commission and OCTA’s rights to retrieve such items from escrow. The escrow account will be shared equally by the Commission and OCTA and has been included in previous Commission authorization requests. The Maintenance Agreement sets forth Cofiroute’s responsibilities related to the on-going maintenance of the RAMS software. The estimated Maintenance Agreement cost was included in the ORCOA joint scope of work; however, both the form of the agreement and the annual cost was subject to negotiation. Staff worked with OCTA and Cofiroute to finalize the form of the Maintenance Agreement and to negotiate an annual shared maintenance cost of $687,435, which is subject to 2 percent annual escalation and is a reduction in the original amount of $731,315 included in the ORCOA. The pre-operation activities performed by Cofiroute in preparation for the Commission’s opening of the 91 Express Lanes extension are included in Exhibit C (the Commission’s scope of work) of the ORCOA. The pre-operation activities include the cost of staff hired in advance of revenue commencement to prepare for operations and to service customers. In accordance with the pre-operations plan, Cofiroute hired and trained staff in preparation for an estimated January opening. In order to keep the additional staff in place through the current anticipated opening date of early spring 2017, staff recommends that funding identified in the ORCOA for joint operating costs be reallocated to provide for extended pre-operations costs. The total contract authorized amount will not change. Staff requests approval of Amendment No. 2 to the ORCOA to incorporate the final License, Software and Maintenance Agreements related to the RAMS software, reflect the reduction in Software License and Maintenance Agreements, and reallocate funds from operations to pre-operations, as described in this staff report. These amendments do not result in an increase in costs to the Commission. 12 Agenda Item 6C Financial Information In Fiscal Year Budget: Yes Year: FY 2016/17+ Amount: $0 net increase Source of Funds: Toll Bonds Operations and Maintenance Reserve Funds and toll revenues Budget Adjustment: N/A GL/Project Accounting No.: 009199 73305 00000 0000 591 31 73302 Fiscal Procedures Approved: Date: 12/15/2016 Attachment: ORCOA Amendment No. 13-31-105-02 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 17336.02109\29406376.4 1 924805.1 AMENDMENT NO. 2 OCTA AGREEMENT NO. C-3-1529 RCTC AGREEMENT NO. 13-31-105-02 AMONG ORANGE COUNTY TRANSPORTATION AUTHORITY, RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND COFIROUTE USA, LLC. THIS AMENDMENT NO. 2 TO AGREEMENT is entered into this _______ day of ______________, 2017, (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 have entered into that certain Amendment No. 1 to the Operating Agreement for the purpose of making certain changes to the services to be completed by CONTRACTOR on behalf of the Agencies. 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 17336.02109\29406376.4 2 924805.1 WHEREAS, CONTRACTOR, on behalf of the Agencies, has developed and upgraded that certain Revenue and Account Management System (“RAMS” or the “Software”) to be used and maintained for operating the 91 Express Lanes. WHEREAS, as anticipated under the Operating Agreement, in order to further the joint operation of the 91 Express Lanes, the Parties have negotiated joint Software License, Maintenance and Escrow Agreements, all for the RAMS, the forms of which the Parties desire to incorporate into the Operating Agreement. WHEREAS, Section A-4.2.1 titled Back Office/Account Management System contained in the Joint Scope of Work included as Exhibit “A” to the Operating Agreement set forth an estimated annual cost for the joint Software Maintenance Agreement in the amount of $731,315 (based on 2012/2013 dollars), which amount was included in the calculation of the Monthly Lump Sum Price, as set forth in Article 7(K) of the Agreement. WHEREAS, Section A-4.2.1 of Exhibit “A” anticipated that, based on final negotiation of the price for the joint Software Maintenance Agreement, an amendment to the Operating Agreement would be required to account for any change to the estimated amount included as part of the Monthly Lump Sum Price. WHEREAS, the Parties now desire to decrease the Monthly Lump Sum Price to account for the final negotiated cost of the joint Software Maintenance Agreement. WHEREAS, the Operating Agreement provides for funding of the Software License Agreement under each Agencies’ separate Scope of Work included as part of Exhibit “B” and Exhibit “C” respectively, and the Parties now desire to reduce the monthly amount specified in each Agencies’ separate Scope of Work to account for the final negotiated price for the joint Software License Agreement. WHEREAS, the Parties now desire to amend the Operating Agreement as described above, and to include the forms of the joint Software License, Maintenance and Escrow Agreements as a new Exhibit “D” to the Operating Agreement. 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 17336.02109\29406376.4 3 924805.1 WHEREAS, COMMISSION also desires to amend the total amount allocated under the COMMISSION Statement of Work to include additional costs for Pre-Operations Services to address a new Projected Opening Date. NOW, THEREFORE, for valuable and adequate consideration, receipt of which is hereby acknowledged, it is mutually understood and agreed by AUTHORITY, COMMISSION and CONTRACTOR as follows: 1. Capitalized terms not otherwise defined in this Amendment No. 2 shall have the meanings ascribed to such terms in the Operating Agreement. 2. Section A-4.2.1 of the Joint Statement of Work contained in Exhibit “A” of the Operating Agreement is hereby amended to include the final negotiated cost of the joint Software Maintenance Agreement, in the annual sum of $687,435, calculated based on 2016/2017 dollars, and subject to 2% annual escalation. 3. 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-Six Thousand, Four Hundred Eighty-Four Dollars ($436,484). 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, Eighteen Dollars ($418,018). 4. Article 7, Payment, subsection J (1) shall be amended, in its entirety, to read as follows: 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 17336.02109\29406376.4 4 924805.1 J (1) Maximum Cumulative Payment Obligation for Joint Statement of Work. (a) AUTHORITY’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. (b) 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 Five Million, Eight Hundred Eighty-Three Thousand, Five Hundred Ninety Five Dollars ($25,883,595), (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. 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 17336.02109\29406376.4 5 924805.1 5. Article 7, Payment, subsection (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 Two Million, One Hundred Ninety Three Thousand, Nine Hundred Three Dollars ($2,193,903), in 2016/2017 dollars, 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. 6. The AUTHORITY Statement of Work contained in Exhibit “B” of the Operating Agreement is hereby amended to replace, in its entirety, Section 1 under the heading “RAMS SOFTWARE LICENSE FEE” to read as follows: 1. AUTHORITY's share of the fee due under the Software Installation and License Agreement amongst COMMISSION, AUTHORITY and CONTRACTOR (“Three Party Software Installation and License Agreement”). The annual fee due under the Three Party Software Installation and License Agreement shall be divided into twelve monthly lump sum payments of Seven Thousand Two Hundred Ninety- Two Dollars ($7,292). An amount equal to one-half of the foregoing specified monthly lump sum payment shall be invoiced to AUTHORITY in accordance with Article 7(C)(1)(b), as applicable, of the Agreement. Notwithstanding any other provision of the Agreement, the monthly lump sum payment for the Three Party Software Installation and License Agreement, as set forth herein, shall not be subject to escalation. 18 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 17336.02109\29406376.4 6 924805.1 7. The COMMISSION Statement of Work contained in Exhibit “C” of the Operating Agreement is hereby amended to replace, in its entirety, Section 1 under the heading “RAMS SOFTWARE LICENSE FEE” to read as follows: 1. COMMISSION's share of the fee due under the Software Installation and License Agreement amongst COMMISSION, AUTHORITY and CONTRACTOR (“Three Party Software Installation and License Agreement”). The annual fee due under the Three Party Software Installation and License Agreement shall be divided into twelve monthly lump sum payments of Seven Thousand Two Hundred Ninety - Two Dollars ($7,292). An amount equal to one-half of the foregoing specified monthly lump sum payment shall be invoiced to COMMISSION in accordance with Article 7(C)(2)(b), as applicable, of the Agreement. Notwithstanding any other provision of the Agreement, the monthly lump sum payment for the Three Party Software Installation and License Agreement, as set forth herein, shall not be subject to escalation. 8. Exhibit “C”, the COMMISSION Statement of Work, shall be amended to increase the total compensation for Pre-Operations Services by Five Hundred Seventy - Five Thousand Seven Hundred Seventy Dollars ($575,717), in 2016/2017 dollars. The new total compensation amount for Pre-Operations Services shall not exceed One Million Eight Hundred Thousand One Hundred Fifty - Three Dollars ($1,800,153) in 2016/2017 dollars. Funding for the increased Pre- Operations Services shall be reallocated from funding previously anticipated to be used by COMMISSION, commencing on January 1, 2016, to fund the Joint Scope of Work. 9. A new Exhibit “D” shall be added to the Operating Agreement to include the joint Software License, Maintenance and Escrow Agreements, in the forms attached hereto as Exhibit “D” and incorporated herein by reference. The attached forms of agreements are hereby approved by the Parties as part of approval of this Amendment No. 2. AUTHORITY’s Chief 19 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 17336.02109\29406376.4 7 924805.1 Executive Officer and COMMISSION’s Executive Director are authorized to execute the attached agreements on behalf of their respective Agency. 10. This instrument may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 11. This Amendment No. 2 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. Except as amended by this Amendment No. 2, all provisions of the Operating Agreement, as previously amended, 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. 2. [Signatures on following page] 20 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 17336.02109\29406376.4 8 924805.1 SIGNATURE PAGE TO AMENDMENT NO. 2 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 21 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 17336.02109\29406376.4 D-Attachment 1 1 924805.1 EXHIBIT “D” JOINT SOFTWARE ESCROW, MAINTENANCE AND LICENSE AGREEMENT FORMS [attached behind this page] 22 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 17336.02109\29406376.4 D-Attachment 1 1 924805.1 SOFTWARE ESCROW AGREEMENT This Software Escrow Agreement (this “Escrow Agreement”) is made as of ________________, 2017 by and among Cofiroute USA, LLC, a Delaware limited liability company (“Cofiroute”); Riverside County Transportation Commission, a California public entity (“RCTC”); Orange County Transportation Authority, a California public entity (“OCTA”); and Escrow Tech (“Escrow Agent”). RCTC and OCTA are sometimes referred to herein, individually, as “Agency” and collectively as “Agencies”. RECITALS A. Cofiroute has been authorized by Agencies to design, develop, install, deliver, test and license to Agencies a new, upgraded back office revenue and account management system (the “Software”) tailored to the unique requirements of the 91 Express Lanes. B. Cofiroute and Agencies are parties to that certain three party agreement for the operation and maintenance of the 91 Express Lanes for and on behalf of Agencies (OCTA Agreement No. C-3-1529; RCTC Agreement No. 13-31-105-00), dated May 24, 2013 (the “Operating Agreement”); to that certain license agreement dated as of ________ (the “License Agreement”) pursuant to which Cofiroute will license the Software to Agencies and Agencies will pay Cofiroute a fee therefor; and that certain maintenance agreement dated as of _____ 2017 (the “Maintenance Agreement”), pursuant to which Cofiroute will provide maintenance, technical support, and modification/enhancement services of the Software for Agencies. D. Cofiroute and Agencies now desire to provide for the delivery of the source code and certain related documentation for the Software into an escrow, and for the disposition of such items from such escrow, all as set forth herein. E. Escrow Agent represents and warrants that it is, and shall remain throughout the term of this Agreement, duly organized and in good standing in its state of incorporation. NOW, THEREFORE, for valuable and adequate consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. Delivery. Within ten (10) days after execution of this Escrow Agreement, Cofiroute shall deliver to Escrow Agent two (2) sealed packages each containing magnetic tapes, disks, disk packs, or other forms of media, in machine readable form, containing: (a) a copy of the Software; (b) all computer source code required to permit Agencies to implement, operate and maintain the Software; and (c) the written documentation (including media indexes) prepared in connection therewith, all as identified in Exhibit 1 hereto (the “Deposit Materials”). Escrow Agent shall hold the Deposit Materials in accordance with the terms hereof. Escrow Agent shall have no obligation to verify the completeness or accuracy of the Deposit Materials. 23 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 17336.02109\29406376.4 D-Attachment 1 2 924805.1 2. Storage; Duplication; Updates. (a) Escrow Agent shall take such actions as may be reasonably necessary to preserve the Deposit Materials and all Additional Deposits (defined below) against damage, loss, or decay, whether by natural causes or otherwise. (b) Escrow Agent may duplicate the Deposit Materials by any means in order to comply with the terms and provisions of this Escrow Agreement; and Cofiroute shall bear the reasonable expense of such duplication. Alternatively, Escrow Agent, by written notice to Cofiroute, may require Cofiroute to reasonably promptly duplicate the Deposit Materials. (c) Cofiroute shall deposit with Escrow Agent two (2) copies of any modifications, updates, new releases or additional documentation related to the Deposit Materials (an “Additional Deposit”) as soon as practicable after the same shall have been developed by Cofiroute. Escrow Agent shall hold all Additional Deposits in accordance with the terms hereof. Escrow Agent shall have no obligation to verify the accuracy or completeness of any Additional Deposit. 3. Notification of Deposits. Simultaneously with the delivery to Escrow Agent of the Deposit Materials or any Additional Deposit, as the case may be, Cofiroute shall deliver to Escrow Agent and Agencies a written statement specifically identifying all items deposited and stating that the Deposit Materials or any Additional Deposit, as the case may be, so deposited have been inspected by Cofiroute and are complete and accurate. 4. Delivery to Agencies. (a) RCTC and OCTA may independently obtain the Deposit Material or copies thereof and all Additional Deposits or copies thereof from Escrow Agent as set forth in this Section 4. Such right shall apply to either or both Agencies if the Agency has terminated the Maintenance Agreement by reason of Cofiroute’s default thereunder. The terminating Agency is referred to below as “Applicable Agency”. (i) If Applicable Agency shall have terminated the Maintenance Agreement by reason of Cofiroute’s default thereunder, then concurrently with such termination, then Applicable Agency may deliver to Escrow Agent, all of the following: (A) Written notification and certification that Applicable Agency is entitled to access as a result of the termination of the Maintenance Agreement by reason of Cofiroute's breach thereof (a “Release Notice”); provided, that the said Notice shall specify the specific Section of the Maintenance Agreement under which Applicable Agency is entitled to access; (B) Evidence satisfactory to Escrow Agent that Applicable Agency has previously served a copy of the Release Notice on Cofiroute; 24 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 17336.02109\29406376.4 D-Attachment 1 3 924805.1 (C) A written demand that the Deposit Materials and all Additional Deposits be released and delivered to Applicable Agency; (D) A written undertaking from Applicable Agency that the Deposit Materials and Additional Deposits being delivered to Applicable Agency will be used only by Applicable Agency and only as permitted under terms of the License Agreement; (E) Specific instructions from Applicable Agency regarding the address for this delivery; and (ii) Cofiroute shall have thirty (30) days from the date of service of the Release Notice on it (the “Objection Period”) to notify Escrow Agent and Applicable Agency, in writing of its objection to the release of the Deposit Materials and the Additional Deposits to Applicable Agency (an “Objection”). (iii) If Cofiroute shall have timely served an Objection on Escrow Agent and Applicable Agency, then Escrow Agent shall not release the Deposit Materials or any Additional Deposits to Applicable Agency unless and until Applicable Agency shall have served on Escrow Agent, either (A) a certified copy of an award from an arbitral panel, issued in accordance with Section 7 hereof and directing the release of the Deposit Materials and any Additional Materials to Applicable Agency; or (B) a writing executed by both Applicable Agency and Cofiroute, directing the release of the Deposit Materials and any Additional Materials to Applicable Agency. (iv) If Cofiroute shall have failed, on or before the expiration of the Objection Period, to serve an Objection on Escrow Agent and Applicable Agency as set forth above, then Escrow Agent shall, within a reasonable period after the expiration of the Objection Period, deliver the Deposit Materials and all Additional Deposits to Applicable Agency. Escrow Agent shall have no further liability under this Escrow Agreement following such delivery. (b) Agencies’ rights to retain the Deposit Materials and all Additional Deposits shall be subject to the provisions of the License Agreement; including without limitation, Sections 1.4 (“Copies”), 2.2 (“Nondisclosure; Security”) and 2.3 (“Copyrights and Other Marks”). As among Cofiroute, RCTC, and OCTA, and notwithstanding the provisions of Section 23 of the Operating Agreement, title to the Deposit Materials and all Additional Deposits shall at all times remain with Cofiroute. 5. Delivery to Cofiroute. At such time as the License Agreement shall have been terminated, Cofiroute may notify Escrow Agent and Agencies, in writing, of such termination; and within a reasonable period after Escrow Agent's receipt of such notice, Escrow Agent shall deliver the Deposit Materials and all Additional Deposits to Cofiroute. Escrow Agent shall have no further liability under this Escrow Agreement following such delivery. Escrow Agent may rely on that notification. 25 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 17336.02109\29406376.4 D-Attachment 1 4 924805.1 6. Indemnity. (a) Agencies and Cofiroute shall, jointly and severally, indemnify and hold harmless Escrow Agent and each of its directors, officers, agents, employees and stockholders (“Escrow Agent Indemnitees”) absolutely and forever, from and against any and all claims, actions, damages, suits, liabilities, obligations, costs, fees, charges, and any other expenses whatsoever, including reasonable attorneys’ fees and costs, that may be asserted against Escrow Agent Indemnitee in connection with the lawful performance by any Escrow Agent Indemnitee of Escrow Agent's duties hereunder. (b) Escrow Agent shall indemnify and hold harmless Agencies and Cofiroute and each of their respective directors, officers, agents, employees and members, absolutely and forever, from and against any and all claims, actions, damages, suits, liabilities, obligations, costs, fees, charges and any other expenses whatsoever, including reasonable attorney's fees and costs, that are caused by the negligent acts or omissions of or a breach of any contractual duty by Escrow Agent, its employees, agents or sub-contractors; provided, that (i) Escrow Agent's total liability with regard to all claims arising under or by virtue of this Escrow Agreement or in connection with the performance or contemplated performance of this Escrow Agreement, shall not exceed the limitations and exclusions of liability set forth below; (ii) Escrow Agent shall not be liable for any special, indirect, incidental or consequential damages whatsoever; (iii) Escrow Agent shall not be responsible in any manner whatsoever for any failure or inability of Agencies or Cofiroute to perform or comply with any provision of this Escrow Agreement; (iv) Escrow Agent shall not be liable in any way to Agencies or Cofiroute for acting in accordance with the terms of this Escrow Agreement and specifically (without limitation) for acting upon any notice, written request, waiver, consent, receipt, statutory declaration or any other document furnished to it pursuant to and in accordance with this Escrow Agreement; and (v) Escrow Agent shall not be required to make any investigation into and shall be entitled in good faith without incurring any liability to Agencies or Cofiroute to assume (without requesting evidence thereof) the validity, authenticity, veracity and due and authorized execution of any documents, written requests, waivers, consents, receipts, statutory declarations or notices received by it in respect of this Escrow Agreement. 7. Disputes and Interpleader. (a) If Cofiroute shall have timely served an Objection Notice on Escrow Agent and Agencies, then the dispute shall be submitted to, and settled by arbitration by, a panel of three (3) 26 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 17336.02109\29406376.4 D-Attachment 1 5 924805.1 arbitrators chosen by the American Arbitration Association. The arbitrators shall apply California law. At least one (1) arbitrator shall be reasonably familiar with the computer software industry. The decision of the arbitrators shall be binding and conclusive on all parties involved, and judgment upon their decision may be entered into a court of competent jurisdiction. All costs of the arbitration incurred by Escrow Agent, including reasonable attorneys' fees and costs, shall be paid by the party (i.e., Cofiroute or the Applicable Agency) which does not prevail in the arbitration; provided, that if the arbitration is settled prior to a decision by the arbitrators, then such costs shall be shared as follows: (1) Agencies shall, collectively, pay one half the cost, and (2) Cofiroute shall pay the other half. (b) In the event of any dispute between any of Escrow Agent, Agencies and/or Cofiroute relating to delivery of the Deposit Materials by Escrow Agent other than as set forth in Section 6(a) above, then any party hereto may submit the matter to any court of competent jurisdiction in an interpleader or similar action. Any and all costs incurred by Escrow Agent in connection therewith, including reasonable attorneys' fees and costs, shall be shared as follows: (1) Agencies shall, collectively, pay one half the cost, and (2) Cofiroute shall pay the other half. (c) Escrow Agent shall perform any acts ordered by any court or arbitrator without any liability or obligation to any party hereunder by reason of such act. 8. Terms; Renewal and Termination. (a) The initial term of this Escrow Agreement shall commence on the date first set forth above and shall expire on June 30, 2021 (the “Initial Term”). This Escrow Agreement shall be automatically extended for an additional term of one year (an “Additional Term”) at the end of the Initial Term and at the end of each Additional Term hereunder unless, on or before ninety (90) days prior to the end of the Initial Term or an Additional Term, as the case may be, either (i) Escrow Agent notifies Agencies and Cofiroute that it wishes to terminate the Escrow Agreement at the end of such term, or (ii) Agencies and Cofiroute jointly notify Escrow Agent that they wish to terminate the Escrow Agreement at the end of such term. (b) In the event of termination of this Escrow Agreement in accordance with Section 8(a) hereof: (i) any fees due and incurred prior to the date of termination shall be shared as follows: (1) Agencies shall, collectively, pay one half the cost, and (2) Cofiroute shall pay the other half; (ii) Escrow Agent shall return to Cofiroute all copies of the Deposit Materials and Additional Deposits then in Escrow Agent's possession; and (iii) Agencies and Cofiroute shall, unless otherwise agreed upon by Agencies and Cofiroute, promptly enter into a mutually acceptable agreement with a substitute escrow agent for the escrow of the Deposit Materials and all Additional Deposits. (c) Termination of the Operating Agreement shall not result in the termination of this Escrow Agreement. (d) Agencies and Cofiroute may, upon mutual agreement, terminate this Escrow Agreement for any or no reason upon providing written notice, signed by Agencies and Cofiroute, 27 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 17336.02109\29406376.4 D-Attachment 1 6 924805.1 of such termination and the effective date thereof. Upon such termination, the provisions of Section 8(b) above shall apply. (e) RCTC and OCTA may jointly or individually terminate this Escrow Agreement for any or no reason upon providing written notice signed by either or both RCTC and OCTA, as applicable. In the case of a termination by both Agencies, upon such termination, the provisions of Section 8b above shall apply. If termination is by RCTC or OCTA only, the terminating Agency shall pay any fees due from such Agency, and this Escrow Agreement shall continue in full force and effect as applies to the non-terminating parties. In addition, the terminating Agency may direct Cofiroute to enter into an acceptable agreement with a substitute escrow agent for the escrow of the Deposit Materials and all Additional Deposits for the benefit of the terminating Agency. 9. Fees. Applicable fees for the Escrow Agent’s services under this Escrow Agreement, as set forth in Exhibit 2, shall be shared as follows: (1) Agencies shall, collectively, pay one half the cost, and (2) Cofiroute shall pay the other half. Notwithstanding the foregoing, RCTC shall pay OCTA’s share of the Initial Fee. (a) Invoices. Escrow Agent shall issue an invoice to Agencies and Cofiroute following this execution of this Escrow Agreement (“Initial Invoice”), on the commencement of any Additional Term hereunder and in connection with the performance of any additional services hereunder. All fees and charges are exclusive of the payment of, all sales, use and like taxes, which, if applicable, shall be shared as follows: (1) Agencies shall, collectively, pay one half the cost, and (2) Cofiroute shall pay the other half. Escrow Agent shall have no obligations under this Escrow Agreement until the Initial Invoice has been paid in full. (b) Nonpayment. In the event of nonpayment of any fees or charges invoiced by Escrow Agent, Escrow Agent shall give notice of non-payment of any fee due and payable hereunder to Agencies and Cofiroute; and, in such an event, Agencies and Cofiroute shall all have the right to pay, within ten (10) days after receipt of such notice, the portion of the unpaid fee not paid by the other parties. Upon payment of the unpaid fee by Agencies or Cofiroute, as the case may be: (i) this Escrow Agreement shall continue in full force and effect until the end of the applicable term; and (ii) the non-paying party shall pay to the other parties, promptly on demand, all fees required hereunder to be borne by the non-paying parties but paid by the paying party. Failure to pay the unpaid fee under this Section 9(b) by both Agencies and Cofiroute shall result in termination of this Escrow Agreement. (c) Additional Services. If Escrow Agent is required to perform any additional or extraordinary services as a result of being an escrow agent under this Escrow Agreement, including intervention in any litigation or proceeding, then Escrow Agent shall receive reasonable compensation for such services and be reimbursed for all costs incurred, including reasonable attorney's fees. Agencies and Cofiroute each shall be responsible for the payment of such compensation and fees, which shall be shared as follows: (1) Agencies shall, collectively, pay one half the cost, and (2) Cofiroute shall pay the other half. 28 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 17336.02109\29406376.4 D-Attachment 1 7 924805.1 (d) Change in Fees. Escrow Agent shall be entitled to review and vary its standard fees and charges for its services under this Escrow Agreement from time to time upon forty-five (45) days written notice; provided, that no such change in any such fees and charges shall be effective at any time prior to July 1, 2021. (e) Payment. All invoices are payable within thirty (30) days from the date of invoice. Interest shall accrue at the lesser of 1.5% per month or the maximum amount permitted by applicable law for any fees that are undisputed by the paying party and remain unpaid for more than thirty (30) days past the due date of the applicable invoice. (f) Disputes. In the event of a dispute made in good faith as to the amount of fees, the party responsible for payment agrees to remit payment on any undisputed amount(s) in accordance with this Section 9. In such circumstances, the interest on the fees shall not accrue as to any disputed amounts unless not paid within thirty (30) days after such dispute has been resolved by the parties. 10. Ownership of Deposit Materials. Cofiroute, RCTC, OCTA, and Escrow Agent recognize and acknowledge that at all times during the term of this Escrow Agreement and after the expiration thereof, ownership of the Deposit Materials and all Additional Deposits shall remain with Cofiroute; irrespective of any delivery of the Deposit Materials or any Additional Deposits to Agencies. 11. Bankruptcy. Agencies and Cofiroute acknowledge that this Escrow Agreement is an agreement supplementary to the License Agreement as provided in the Bankruptcy Code. The parties acknowledge that if either party, acting in the capacity of a debtor in possession, or a trustee in Bankruptcy in a case under the Bankruptcy Code, shall rightfully disaffirms the License Agreement and/or this Escrow Agreement as provided in the Bankruptcy Code, then upon written request to the other party or the Bankruptcy Trustee, there shall not be any interference with the rights of the other party as provided in the License Agreement and this Escrow Agreement, including the right to obtain the Deposit Materials from Escrow Agent. 12. Miscellaneous. (a) Remedies. Except for breach of contract, actual fraud, gross negligence or intentional misconduct, Escrow Agent shall not be liable to Agencies or Cofiroute for any act, or failure to act, by Escrow Agent in connection with this Escrow Agreement. Any liability of Escrow Agent, regardless of the cause, shall be limited to the actual cost of the new blank magnetic media. Escrow Agent will not be liable for special, indirect, incidental or consequential damages hereunder. Escrow Agent’s aggregate liability will not exceed a cap equal to the total of all fees received by it under this Agreement. (b) Natural Degeneration; Updated Version. The parties acknowledge that as a result of the passage of time alone, the Deposit Materials are susceptible to loss of quality (“Natural Degeneration”). It is further acknowledged that Escrow Agent shall have no liability or responsibility to any person or entity for any Natural Degeneration. For the purpose of reducing 29 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 17336.02109\29406376.4 D-Attachment 1 8 924805.1 the risk of Natural Degeneration, Cofiroute shall deliver to Escrow Agent a new copy of the Deposit Materials and any Additional Deposits at least once every three (3) years. (c) Permitted Reliance and Abstention. Escrow Agent may rely and shall be fully protected in acting or refraining from acting upon any notice or other document believed by Escrow Agent reasonably and in good faith to be genuine and to have been signed or presented by the proper person or entity. Escrow Agent shall have no duties or responsibilities except those expressly set forth herein. (d) Independent Contractor. Escrow Agent is an independent contractor, and is not as employee or agent of RCTC, OCTA, or Cofiroute. (e) Amendments. This Escrow Agreement shall not be modified or amended except by a writing executed by the parties hereto. (f) Entire Agreement. This Escrow Agreement, including all exhibits hereto: supersedes all prior discussions, understandings and agreements between the parties with respect to the matters contained herein; and constitutes the entire agreement between the parties with respect to the matters contemplated herein. All exhibits attached hereto are by this reference made a part of this Escrow Agreement and are incorporated herein. (g) Counterparts. This Escrow Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Escrow Agreement. (h) Governing Law. This Escrow Agreement shall be constructed and enforced in accordance with the laws of the State of California, excluding its conflict of laws principles. In the event of litigation arising out of or relating to this Agreement, the parties consent to the exclusive jurisdiction and venue of the state courts of and federal courts in Riverside County, California, and to service of process by any means authorized by California law. (i) Confidentiality. Escrow Agent will hold and release the Deposit Materials and all Additional Deposits only in accordance with the terms and conditions hereof or an order by a court or arbitrator, and will maintain the confidentiality of the Deposit Materials and all Additional Deposits. (j) Notices. All notices, requests, demands or other communications required or permitted to be given or made under this Escrow Agreement shall be in writing and shall be delivered by hand or by commercial overnight delivery service which provides for evidence of receipt, or mailed by certified mail, return receipt requested, postage prepaid, and addressed as follows: 30 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 17336.02109\29406376.4 D-Attachment 1 9 924805.1 If to Cofiroute: Cofiroute USA, LLC Attn: _________________________ If to RCTC: Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Attn: Anne Mayer, Executive Director If to OCTA Orange County Transportation Authority 550 S. Main Street Orange, CA 92868 Attn: Kirk Avila, 91 Express Lanes General Manager If to Escrow Agent: EscrowTech International, Inc. Technology Law Center Building 3290 Mayflower Way Lehi, UT 84043 Attn: Legal Department If delivered personally, the date on which the notice, request, or instruction is delivered shall be the date on which the delivery is deemed to be made; and if delivered by mail or by commercial overnight delivery service, the date on which such notice, request, instruction or document is actually delivered to the recipient or its notice address by the applicable carrier,or when delivery is refused, as shown on the receipt of the applicable carrier or other person making the delivery. Any party may change its address for the purpose of this Escrow Agreement by notice is writing to the other party as provided herein. (k) Survival. Sections 4(b), 6, 7, 9, 10 and 11 hereof shall survive any termination of this Escrow Agreement. (l) No Waiver. No failure on the part of any party hereto to exercise, and no delay in exercising any right, power or single or partial exercise of any right, power or remedy by any party will preclude any other or further exercise thereof or the exercise of any other right, power or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Escrow Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof. 31 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 17336.02109\29406376.4 D-Attachment 1 10 924805.1 (m) Assignment. This Escrow Agreement shall bind and inure to the benefit of Cofiroute, RCTC, OCTA, and Escrow Agent, and their respective successors and assigns. Except where Escrow Agent merges, is acquired or has substantially all of its assets acquired and the new entity or acquirer agrees to assume all of Escrow Agent's obligations and liabilities under this Escrow Agreement, Escrow Agent shall not assign, transfer or subcontract this Escrow Agreement or any rights or obligations hereunder without the prior written consent of the other parties. Cofiroute, RCTC, and OCTA may not assign this Escrow Agreement or any part hereof without the prior written consent of the other parties. (n) Severability. If any part of this Escrow Agreement shall be finally adjudged by a court of competent jurisdiction to be void, invalid or unenforceable, then that part of this Escrow Agreement shall be deemed severed herefrom; and the remainder of this Escrow Agreement shall remain fully valid and enforceable as though the void, invalid, or unenforceable part of this Escrow Agreement were never a part hereof. IN WITNESS WHEREOF, each of the parties has caused its duly authorized officer to execute this Escrow Agreement as of the date and year first above written. 32 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 17336.02109\29406376.4 D-Attachment 1 11 924805.1 SIGNATURE PAGE TO SOFTWARE ESCROW AGREEMENT COFIROUTE USA, LLC, a Delaware limited liability company: By: Gary L. Hausdorfer Chief Executive Officer RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a California public entity: By: Anne Mayer Executive Director ORANGE COUNTY TRANSPORTATION AUTHORITY, a California public entity: By: ____ Daryl Johnson Chief Executive Officer ESCROW TECH By:______________________________ _______ XXXXX TITLE 33 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 17336.02109\29406376.4 D-Attachment 1 12 924805.1 34 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 17336.02109\29406376.4 D-Attachment 1 13 924805.1 EXHIBIT 1 TO ESCROW AGREEMENT DEPOSIT MATERIALS Product Name __________________________________________ Version # ____________________ Date: ____________ Description of Materials Deposited: __________________________________________ __________________________________________ Applications, languages and/or utilities required to access, compile, maintain and/or operate: __________________________________________ 35 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 17336.02109\29406376.4 D-Attachment 1 14 924805.1 EXHIBIT 2 TO ESCROW AGREEMENT FEE SCHEDULE Fees to be paid by Agencies shall be as follows: Initial Fee: $445 (One-time fee payable upon execution of agreement) Annual Fee: $837.50 (Payable once, yearly, for the course of the agreement) Fees to be paid by Cofiroute shall be as follows: Initial Fee: $445 (One-time fee payable upon execution of agreement) Annual Fee: $837.50 (Payable once, yearly, for the course of the agreement) 36 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 17336.02109\29406376.4 D-Attachment 2 1 924805.1 SOFTWARE MAINTENANCE AGREEMENT This Software Maintenance Agreement (“Maintenance Agreement”) is entered into as of __________, 2017, by and among Cofiroute USA, LLC, a Delaware limited liability company (“Cofiroute USA”); and Riverside County Transportation Commission (“RCTC”), and Orange County Transportation Authority, (“OCTA”) referred to collectively as “the Parties”. RCTC and OCTA are sometimes collectively referred to as "Agencies”" and singularly as "Agency." RECITALS A. Cofiroute USA and OCTA, entered into that certain Amendment No. 4, dated July 1, 2009 to Agreement No. C-5-0300 to design, develop, install, deliver, test and license to OCTA; a new, upgraded software back office revenue and account management system (the “RAMS”) tailored to the unique requirements of the then existing toll road commonly referred to as 91 Express Lanes. ("OCTA Agreement") B. Concurrent with the execution of the OCTA Agreement, Cofiroute USA and OCTA entered into a “Software Maintenance Agreement,” a “License Agreement,” and an “Escrow Agreement” pertaining to the RAMS. C. RCTC entered into a Design Build Contract with Atkinson/Walsh Joint Venture pertaining to meeting the operating requirements of OCTA and RCTC in support of joint operations of the extended 91 Express Lanes. The 91 Express Lanes extends into Riverside County for approximately eight (8) to ten (10) miles (“Extended 91 Express Lanes”). The 91 Express Lanes and the Extended 91 Express Lanes are sometimes collectively referred to as the Extended 91 Express Lanes. D. Cofiroute USA, RCTC, and OCTA entered into that certain joint operating agreement dated May 24, 2013 (the "ORCOA", OCTA Agreement No. C-3-1529; RCTC Agreement No. 13- 31-105-00) pertaining to the operation by Cofiroute USA of the Extended 91 Express Lanes. The ORCOA will supersede the OCTA Agreement as set forth in and pursuant to the terms of the ORCOA. E. Cofiroute USA and RCTC entered into that certain Electronic Toll and Traffic Management Systems Integration and Implementation Agreement, dated March 1, 2014 ("SIIC") whereby Cofiroute USA, among other things, agreed to modify the RAMS ("RAMS Derivative") to be used in connection with the Extended 91 Express Lanes. The RAMS and RAMS Derivative are sometimes collectively referred to as the RAMS Derivative. F. Pursuant to the terms of the ORCOA, RCTC, OCTA, and Cofiroute USA desire to enter into this Maintenance Agreement pertaining to the maintenance of the RAMS Derivative. G. The "ORCOA Agreement" contemplated that RAMS will include toll processing of lane system data (integrating both the OCTA and RCTC electronic toll collection systems), operational processing of data for fare and trip calculation, automated replenishment of customer accounts, transponder inventory, financial processes, reporting, system monitoring and operations 37 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 17336.02109\29406376.4 D-Attachment 2 2 924805.1 management, features supporting interoperability with other tolling authorities, violation processing based on images(s) captured, collections processing, and general accounting functions and reports. The Parties contemplate further that the customer service aspect of the RAMS include such items as account establishment, account maintenance, account payment, secure web interface for customer account self-management, walk-in center activities, and a secure IVR interface for customers. H. OCTA and RCTC desire that Cofiroute USA provide maintenance, technical support, and modification/enhancement services for the RAMS Derivative on the terms provided herein; but only insofar as the RAMS Derivative is used in connection with the Extended 91 Express Lanes as constituted on the date of this Maintenance Agreement. I. Upon Actual Opening Day, as defined in the ORCOA, of the 91 Express Lanes Extension, , the Software Maintenance Agreement will be superseded by the Maintenance Agreement and no longer in force or effect. J. Concurrent herewith, the Parties have entered into that certain Joint License Agreement pertaining to licensing the RAMS and RAMS Derivative. (“Joint License Agreement”) NOW, THEREFORE, for valuable and adequate consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. Term. Subject to the provisions of Section 9 hereof, the term of this Maintenance Agreement shall be as follows: (a) The term of this Maintenance Agreement shall commence on Actual Opening Date ; and shall continue through and including June 30, 2021 (the “Initial Term”). 2. Cofiroute USA’s Duties. (a) Cofiroute USA shall furnish such industry standard maintenance support services as set forth herein, to maintain, replace or otherwise preserve the functionality, reliability and operability of the RAMS Derivative so that the RAMS Derivative performs at all times in the accordance with the ORCOA Agreement. (b) Cofiroute USA may enter into subcontracts with third parties in connection with the performance of its duties under this Maintenance Agreement. 3. Maintenance Service. Cofiroute USA shall provide maintenance services which are regularly scheduled maintenance (“Preventive Maintenance”) and unscheduled maintenance (“Corrective Maintenance”) as follows: (a) Cofiroute USA shall perform Preventive Maintenance in accordance with a preventive maintenance schedule (“Preventive Maintenance Schedule”), which is attached hereto as Schedule A. (b) Cofiroute USA shall perform Corrective Maintenance in accordance with a cure time schedule ("Cure Time Schedule"), which is attached hereto as Schedule B. 38 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 17336.02109\29406376.4 D-Attachment 2 3 924805.1 4. Allocation of Expenses. (a) All costs associated with the repair and/or restoration of RAMS Derivative failures or outages caused by abuse, misuse, or unauthorized modification or repair by Agencies or its agents and third parties shall be at the Agency/Agencies’ sole expense. (b) All costs associated with the repair of RAMS Derivative caused by abuse, misuse, or unauthorized modification or repair by Cofiroute USA, its agents, its subcontractors, or its third parties shall be at Cofiroute USA’s expense. (c) If Agency or Agencies desire that Cofiroute USA make such repair and/or restoration of the RAMS Derivative in a time frame which cannot be achieved by Cofiroute USA’s personnel during scheduled work hours, then Cofiroute USA shall promptly advise Agency or Agencies of the estimated costs of such repair and/or restoration in writing; and upon Agency or Agencies’ written authorization (as the case may be), Cofiroute USA shall perform such repair and/or restoration and Agency or Agencies shall pay Cofiroute USA the incremental labor costs and expenses associated with the repair and/or restoration upon receipt of an invoice. Cofiroute USA will be under no obligation to begin the repair or restoration until it receives Agency or Agencies’ written authorization to proceed. 5. Repair and Restoration. Cofiroute USA shall use its best efforts to perform the necessary repairs and/or service restoration to return the RAMS Derivative to its normal operations at the earliest practical time. The Parties recognize that time is of the essence. 6. Fees. Agencies shall pay Cofiroute USA an aggregate annual maintenance fee of $687,434.75 (“Annual Fee”). The Annual Fee shall apply to Preventive Maintenance and Corrective Maintenance described in Sections 3(a) and 3(b) above. (a) The Annual Fee shall be payable in equal semi-monthly installments. Such Annual Fee shall commence and become due and payable upon Actual Opening Date and shall be prorated for partial years. Beginning on the first anniversary of this Maintenance Agreement, and continuing on each annual anniversary thereafter during the term of this Maintenance Agreement, the annual maintenance fee shall be adjusted in the same manner and by the same percentage as the ORCOA Agreement is escalated. In addition to the Annual Fee, an additional sum up to $300,000.00 per year has been budgeted and authorized by Agencies to pay for RAMS Derivative changes which are requested by Agencies (“Additional Fees”). All RAMS Derivative changes ("Work") are jointly to be requested and Additional Fees approved in writing by the Agencies. The cost for each such requested Work shall be based on Cofiroute USA’s estimated number of hours to perform, and shall be based on the rate schedule set forth in Schedule C to this Maintenance Agreement, and shall be agreed by the Parties before the Work commences. From and after such time as Agencies shall have paid the full amount of the said $300,000 Additional Fees to Cofiroute USA, Cofiroute USA shall have no obligation hereunder to develop, install, or implement any additional RAMS Derivative changes unless, for each such additional RAMS Derivative change, Cofiroute USA and Agencies shall have mutually executed and delivered a separate amendment to this Agreement. In the event only one Agency requests a change to the RAMS Derivative, which applies to only their portion of the Extended 91 Express Lanes, the requesting Agency shall 39 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 17336.02109\29406376.4 D-Attachment 2 4 924805.1 notify, in writing, the other Agency of its request, then only that Agency shall be responsible to pay Cofiroute USA (b) The Additional Fees shall be paid upon Cofiroute USA’s completion and Agencies’ acceptance of the Work. The Work and acceptance criteria shall be pre-defined before the Work is initiated. The Work shall be deemed accepted unless Agencies disagree that the Work has been satisfactorily completed. Agencies’ objections must be communication to Cofiroute USA within 30 days of Cofiroute USA providing written notice to the Agencies that Work is completed. If Agencies’ fail to object to Work within 30 days, the Work will be deemed satisfactorily completed and Cofiroute USA untitled to payment. 7. Personnel. (a) Cofiroute USA shall maintain a local maintenance force consisting of a sufficient number of qualified technicians to insure that, consistent with the terms hereof, Corrective Maintenance can be performed 24 hours a day, 365 days per year. (b) Cofiroute USA shall provide one (1) onsite technician, full time (i.e., eight (8) hours per day, Monday through Friday) and remote monitoring 24 hours a day, 7 days a week. (c) Cofiroute USA shall designate a senior maintenance technician as the lead for purposes of coordination with the Agencies. Designated maintenance personnel shall have adequate experience and/or training in servicing software similar in nature to that which is to be maintained in the RAMS Derivative. Personnel not experienced in a specific maintenance function shall be supervised by an experienced worker until a sufficient level of experience has been gained to allow unsupervised activity. 8. Manuals. (a) Cofiroute USA shall maintain an electronic database which shall also be made available to the Agencies. The (“Maintenance Guide”) shall: (1) provide complete detailed technical descriptions of maintenance operations, including, but not limited to: (i) preventive maintenance schedule; (ii) trouble-shooting techniques; (iii) corrective measures, both temporary and permanent; (iv) maintenance techniques; and (v) location and availability of related support services; (2) include a general description, theory of operation, operator instructions, installation, test and troubleshooting procedures for the RAMS Derivative. 9. Termination. (a) Notwithstanding anything in this Maintenance Agreement to the contrary, this Maintenance Agreement shall be deemed to have terminated automatically and without further notice upon the occurrence of any of the following: (i) Expiration of the Term in accordance with the terms of this Maintenance Agreement. (ii) Either party hereto shall be, or be deemed to be, in material breach of such party’s obligations arising under this Maintenance Agreement; provided, that the breaching party 40 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 17336.02109\29406376.4 D-Attachment 2 5 924805.1 shall have failed to cure the breach on or before the expiration of thirty (30) days after such party’s receipt of a written notice from the non-breaching party describing the alleged breach with reasonable certainty. (iii) OCTA shall have ceased to hold a franchise from the California Department of Transportation to operate the 91 Express Lanes or RCTC shall have exited from the California Department of Transportation Toll Facilities Agreement. (iv) The Joint License Agreement shall have been terminated for any reason. (b) Termination of the ORCOA shall not result in the termination of this Maintenance Agreement subject to renegotiation of the Annual Maintenance Fee. (c) If the Maintenance Agreement is still in effect at the expiration of the Operating Agreement, then the Joint License Agreement shall be renegotiated in accordance with provisions included in the Joint License Agreement, unless Agencies provide Cofiroute USA with written notice of termination of the Maintenance Agreement. 10. Agencies’ Responsibilities. During the Term of this agreement, Agencies will provide Cofiroute USA’s maintenance technicians with adequate facilities, furniture, and reasonable access to general office equipment. 11. Miscellaneous. (a) Recitals. The Recitals are incorporated herein and made a part hereof. (b) Notices. Unless otherwise provided in this Maintenance Agreement, any notice required or permitted by this Maintenance Agreement to be given to either party shall be deemed to have been duly given if in writing and delivered personally or mailed by first-class, registered, or certified mail, postage prepaid and addressed: To OCTA: Orange County Transportation Authority 550 S. Main Street Orange, CA 92868 Attn: Darrell Johnson, Chief Executive Officer To RCTC Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor P.O. Box 12008 Riverside, CA 92502-2208 Attn: Anne Mayer, Executive Director (c) Amendments. No amendment or modification of this Maintenance Agreement shall be effective unless the same shall be in a writing duly executed by all three Parties hereto. 41 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 17336.02109\29406376.4 D-Attachment 2 6 924805.1 (d) Nonwaiver. No failure to exercise, and no delay in exercising, a right, power, or privilege hereunder on the part of any Party shall operate as a waiver of any such right, power, or privilege. No single or partial exercise of any right, power, or privilege hereunder shall preclude its further exercise. (e) Attorneys’ Fees. If any Party hereto commences any legal action to enforce the terms of this Maintenance Agreement, then the prevailing Party(ies) therein shall be entitled to reasonable attorneys’ fees in addition to any other relief to which those Party(ies) may be entitled. (f) Severability. If any part of this Maintenance Agreement shall be finally adjudged by a court of competent jurisdiction to be void, invalid or unenforceable, then that part of this Maintenance Agreement shall be deemed severed herefrom; and the remainder of this Maintenance Agreement shall remain fully valid and enforceable as though the void, invalid or unenforceable part of this Maintenance Agreement were never a part hereof. (g) Governing Law. This Maintenance Agreement shall be deemed to have been made in, and shall be construed pursuant to, the internal laws of the State of California, without resort to principles of conflicts of choice of law. (h) Entire Agreement. This Maintenance Agreement is the final, complete and exclusive statement of the parties’ agreement concerning the maintenance of the RAMS Derivative; it supersedes and cancels all previous written and oral agreements, understandings, representations, undertakings and communications relating to the maintenance of the RAMS Derivative. 12. Dispute Resolution. (a) Administrative Dispute Resolution. Any dispute arising under the terms of this Maintenance Agreement which is not disposed of within a reasonable period of time by the Agencies’ officers and Cofiroute USA’s officers normally responsible for the administration of this Maintenance Agreement shall be brought to the attention of Agencies’ respective Chief Executive Officer or Executive Director and Cofiroute USA’s Chief Executive Officer for joint resolution. At the request of any party, Cofiroute USA shall provide a forum for discussion of the disputed item(s), at which time Agencies’ Chief Executive Officer or Executive Director and Cofiroute USA’s Chief Executive Officer shall use reasonable efforts to resolve such dispute. If resolution cannot be reached by such persons, then either party may seek resolution through the procedures provided below. (b) Arbitration. Any dispute arising under this Maintenance Agreement shall, if the same has not been satisfactorily resolved under Section 12(a) hereof, be resolved by binding arbitration in Orange County, California. Such arbitration shall be conducted in accordance with the then-current American Arbitration Association rules for commercial arbitration. Either party may demand such arbitration by giving written notice thereof to the other party; provided, that the party giving such notice shall name therein an Arbitrator. Within twenty (20) days thereafter, the other party shall by written notice to the original party appoint a second Arbitrator. The Arbitrators thus appointed shall, within fifteen (15) days after the appointment of the second 42 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 17336.02109\29406376.4 D-Attachment 2 7 924805.1 Arbitrator, appoint a third Arbitrator; and such three Arbitrators shall promptly attempt to resolve such dispute; provided, that: (i) If the second Arbitrator shall not have been appointed as aforesaid, then the first Arbitrator shall alone proceed to determine such matter. (ii) If the two Arbitrators appointed by the parties shall be unable to agree upon the selection of such third Arbitrator within fifteen (15) days after the appointment of the second Arbitrator, then they or either of them shall give written notice of such failure to the parties; and if the parties fail to agree upon the selection of such third Arbitrator within fifteen (15) days after the Arbitrators appointed by the parties give notice as aforesaid, then the third such Arbitrator shall be appointed by the American Arbitration Association; or on its failure, refusal or inability to act (for conflict of interest or any other reason), the parties may apply for such appointment to a court of competent jurisdiction. (iii) The Parties may present to the Arbitrators, in support of their respective positions, any evidence made admissible under the laws of the State of California. (iv) The Arbitrators may not: make any determination inconsistent with any of the terms of this Maintenance Agreement, or deprive any Party thereto of any right in this Maintenance Agreement, or decide any matter other than the specific issue referred to arbitration as herein provided, or make any award of punitive damages. (v) The determination of the majority of the Arbitrators, or a sole Arbitrator, (as the case may be) shall be conclusive upon the Parties. The Arbitrators, or the sole Arbitrator, (as the case may be) shall give written notice to the Parties stating their or his determination, and shall deliver to each Party a signed copy thereof. (vi) Each Party shall pay the fees and expenses of the Arbitrator appointed by such Party and one-third of the other expenses of the arbitration properly incurred hereunder. Judgment on the award may be entered in any court of competent jurisdiction. 13. Indemnification. Cofiroute USA shall indemnify, defend and hold harmless Licensees, its officers, employees and agents from and against any and all claims (including attorney’s fees and reasonable expenses for litigation and settlement) for any loss and damages, bodily injuries, including death, damage to or loss of property, arising out of or related to a breach by Cofiroute USA of this Maintenance Agreement. Cofiroute USA’s maximum aggregate monetary liability to Licensee(s) for any and all damages arising out of or related to any and all breaches by Cofiroute USA of this Maintenance Agreement or the License Agreement, and for indemnification of the Licensee(s) pursuant to this Section 13, including the Operating Agreement and all Exhibits, shall be as follows: (a) If, at the time a claim arises, the Operating Agreement, this Maintenance Agreement and the License Agreement are all in force, then the maximum aggregate monetary liability shall not exceed the sum of Five Million Dollars ($5,000,000.00). (b) If, at the time a claim arises, both this Maintenance Agreement and the License Agreement, but not the Operating Agreement, are in force then the maximum aggregate monetary liability shall not exceed the sum of Seven Hundred Thousand Dollars ($700,000.00). 43 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 17336.02109\29406376.4 D-Attachment 2 8 924805.1 WHEREFORE, the Parties hereto have executed and delivered this Maintenance Agreement as of the date first written above. COFIROUTE USA, LLC, a Delaware limited liability company By ___________________________________ Gary L. Hausdorfer Chief Executive Officer ORANGE COUNTY TRANSPORTATION AUTHORITY, a California public entity By ___________________________________ Anne Mayer Executive Director RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a California public entity By ___________________________________ Darrell Johnson Chief Executive Officer Schedule A (Preventive Maintenance) Schedule B Exhibit 1 to Schedule B (Cure Time Schedule) Schedule C Rate Schedule 44 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 17336.02109\29406376.4 D-Attachment 2 9 924805.1 Schedule A Preventative Maintenance Schedule The schedule for preventative system maintenance is as follows: Servers Receive Maintenance on a 30-Day Cycle System restarts ensure that memory is defragmented, all memory pools are reverted to a default state and systems can be restarted and returned to normal operating mode on a routine basis. The regular application of patches is also part of preventative maintenance. All patches are first applied to Staging and QA systems where the impact can be validated. For efficiency purposes, server resets/reboots are typically timed to coincide with patch application, so that the systems will restart and operate properly once patches have been applied. During maintenance activity automated processes – virus scanners, disk defragmentation, and index optimization are validated. System Checks System checks are performed daily to check that all systems are functioning properly. These checks include validation of website integration, IOP, and IVR integration. These checks proactively seek out possible system failures before they significantly impact on-going operations. SQL Maintenance On a monthly basis automated routines affecting index rebuilds, system statistics, and table growth are all reviewed. Tables that contain log data and are not essential to maintain system transactions are purged and pruned. Server Maintenance Schedule No maintenance is performed the first week of the month. System Checks are performed, but servers are not reset. The second week of the month, staging servers receive maintenance. The third week of the month QA servers receive maintenance and applications receive a brief validation. The last week of the month Production servers receive maintenance to satisfy the PCI requirement to apply vendor security patches within 30 days of release. Backups Disk backups are performed as routine part of normal operations. In addition, RAMS SQL Server backups are performed and maintained. The Production Servers support full recovery making use of full backups weekly, differential backups daily, and transaction logs hourly. Backups are routinely tested by restoring production backups for QA testing. Maintenance Schedule System and Security Patches (P) are released by Microsoft on the second Tuesday of each month for both servers and workstations. These updates are typically comprised of patches for the Operating System, Windows components and applications. Server Reboots (R) are typically required after patches are applied to a server or workstation and scheduled accordingly. 45 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 17336.02109\29406376.4 D-Attachment 2 10 924805.1 Reboots specific to the bimonthly Mailroom Toolkit Architect installation (M) are required on certain servers. QA/STG Servers IP Week 1 Week 2 Week 3 Week 4 vsvrSTG04 10.66.2.183 P/R M sramsDB2 10.66.2.31 P/R vsvrQ05rams 10.75.2.65 P/R M Production Servers IP Week 1 Week 2 Week 3 Week 4 sramZCS1 10.75.1.28 P/R sramZCS2 10.75.1.29 P/R vsvrRAMS3 10.75.2.75 P/R/M sramzcsDTC 10.75.1.62 P/R vsvrTRIPP3 10.75.3.175 P/R vramsENC 10.75.3.67 P/R vsvrPDF3 10.75.3.35 P/R vsvrDMV01 10.66.2.69 P/R vsvrREPOS3 10.75.3.105 P/R vsvrREPORT 10.75.3.99 P/R sramsAPP2 10.66.2.45 P/R vsvrREPOS 10.75.3.100 P/R 46 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 17336.02109\29406376.4 D-Attachment 2 11 924805.1 SCHEDULE B CORRECTIVE MAINTENANCE SCHEDULE Cofiroute USA shall perform the following Corrective Maintenance: (i) Provide the required levels of support in accordance with industry standards and practices to minimize any disruption to the operation of the RAMS. (ii) Initiate work on all problems requiring Corrective Maintenance within two (2) hours from detection of the problem. (iii) Use best efforts to restore all functionality which was lost and/or malfunctioning to service within 24 hours; provided, that Cofiroute USA shall make all repairs necessary to complete the Corrective Maintenance according to the Cure Time Schedule (Exhibit 1 to this Schedule B). 47 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 17336.02109\29406376.4 D-Attachment 2 12 924805.1 EXHIBIT 1 TO SCHEDULE B CURE TIME SCHEDULE Category Definition Target Action 1 Business Critical. Production use of the system is not possible and no workaround exists. Customer requires resolution urgently due to financial, legal and public risk exposure. Initial response within 2 hours. Resource assigned immediately and remains assigned until resolution. Target Resolution: 8 hours. 2 Production use of the system is possible, but a business function is disabled and no workaround exists. This category also applies to problems which severely impact the progress of an implementation project where no workaround exists. Initial response within 4 hours. Resource assigned within one day and remains assigned until resolution. Target Resolution: 48 hours. 3 Production use of the system is possible, but a workaround is unacceptable for more than a short period due to the frequency of the affected function’s usage and the criticality of the function. This category also applies to problems which severely impact implementation projects where there is an unacceptable long term workaround. Initial response within one working day. Resource assigned within a day. Target Resolution: 10 Business Days 4 All others. Production and/or implementation is not impacted severely for one of the following reasons: (c) an acceptable workaround exists; (d) the problem is resolved onsite; (e) the problem is not severe; or (f) the extent of the problem is limited. Resolved as time permits, and made available as part of a regularly scheduled maintenance release. 48 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 17336.02109\29406376.4 D-Attachment 2 13 924805.1 SCHEDULE C RATE SCHEDULE The fully burden rate is $180 USD per hour, no additional increase for benefits or overhead. Rate is for normal business hours and is exclusive of travel and living expense, and no overtime. This rate is valid for the first year of maintenance and is subject to escalation adjustment beginning on the first anniversary of this Maintenance Agreement, and continuing on each annual anniversary thereafter during the term of this Maintenance Agreement, the annual maintenance fee shall be adjusted in the same manner and by the same percentage as the ORCOA Agreement is escalated. 49 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 17336.02109\29406376.4 D-Attachment 3 1 924805.1 SOFTWARE LICENSE AGREEMENT This Software License Agreement (this “License Agreement”) is entered into and is effective as of _________, 2017 (“Effective Date”), by and amongst Cofiroute USA, LLC, a Delaware limited liability company (“Cofiroute”), Riverside County Transportation Commission, a California public entity (“RCTC”), and Orange County Transportation Authority, a California public entity (“OCTA”). RCTC and OCTA are sometimes referred to herein, collectively, as “Licensees”. R E C I T A L S A. Under the authority of California Streets and Highways Code Section 143, OCTA holds a franchise from the California Department of Transportation (“CalTrans”) to operate that portion of that certain private toll road located generally in the median of State Route 91 and situated in the County of Orange, State of California (the “OCTA 91 Express Lanes”). B. Under the authority of California Streets and Highways Code Section 143, RCTC has entered into a Toll Facilities Agreement Including Real Property Lease with CalTrans to operate that portion of that certain toll road located or to be located generally in the median of State Route 91 and situated in the County of Riverside, State of California (the “RCTC 91 Express Lanes”). C. The OCTA 91 Express Lanes and the RCTC 91 Express Lanes are referred to herein, collectively, as the “91 Express Lanes”. D. Cofiroute has entered into a three party agreement with Licensees for the operation and maintenance of the 91 Express Lanes for and on behalf of Licensees (OCTA Agreement No. C-3-1529; RCTC Agreement No. 13-31-105-00), dated May 24, 2013 (the “Operating Agreement”). E. Cofiroute has previously developed on behalf of OCTA and owns and/or has the right to license certain software generally described as a back-office revenue and account management system (“RAMS”) that was tailored to the unique requirements of the OCTA 91 Express Lanes. F. RCTC and Cofiroute have entered into that certain Electronic Toll and Traffic Management Systems Integration and Implementation Agreement (RCTC Agreement 14- 31-071-00), dated March 1, 2014, as amended (“ETTM Agreement”) pursuant to which Cofiroute is developing certain modifications to the RAMS required by the Licensees, as set forth in the ETTM Agreement and its Scope of Work. G. The existing RAMS software, as modified and accepted upon completion of final design review under the ETTM Agreement, and all future enhancements thereto, is referred to herein as the “Software” which Software will be used in connection with the operation of 50 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 17336.02109\29406376.4 D-Attachment 3 2 924805.1 the 91 Express Lanes. H. Concurrent with execution of this License Agreement, Licensees and Cofiroute will mutually execute and deliver a Software Maintenance Agreement pertaining to the Software (the “Maintenance Agreement”), and a Software Escrow Agreement pertaining to the Software (the “Escrow Agreement”), both in such form as agreed upon by the parties. I. Cofiroute desires to license the Software to Licensees on a nonexclusive basis, and Licensees desire to accept such license from Cofiroute, all subject to the provisions of this License Agreement. NOW, THEREFORE, for valuable and adequate consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. Grant of License; Limitations. 1.1. License. Subject to the provisions of this License Agreement, Cofiroute grants to Licensees, and Licensees hereby accept, a nontransferable, non-exclusive license to use the Software on the computer hardware and software described on Exhibit 1, attached hereto (collectively, the “Designated Hardware”) and located at: (a) Licensees’ facilities at 180 N. Riverview Drive, Suite 200, Anaheim, CA 92808; (b) the eastbound and westbound toll booths for the 91 Express Lanes; (c) Licensees’ Customer Service Center located in Corona, California (and any subsequent Customer Service Center for the 91 Express Lanes); (d) OCTA’s offices at 550 S. Main Street, Orange, CA 92868 and OCTA store; and (e) RCTC’s offices at 4080 Lemon Street, 3rd Floor Riverside, CA 92501 (collectively, the “Sites”) (the “License”). 1.2. Use. Licensees shall use the Software only at the Sites and only in conjunction with the Licensees’ or Cofiroute’s operation of the 91 Express Lanes. 1.3. Designated Hardware. 1.3.1. Except as expressly stated in this License Agreement, Licensees shall use the Software solely on the Designated Hardware. If, at any time during the term of the License, Licensees cannot use the Designated Hardware because of equipment, software, or other malfunction, then Licensees, or either of them, may temporarily install and use the Software on hardware purchased by Licensees other than the Designated Hardware; provided, that 1.3.1.1. The other hardware shall meet or exceed the specifications for the Designated Hardware as described on Exhibit 1 to this License Agreement; 51 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 17336.02109\29406376.4 D-Attachment 3 3 924805.1 1.3.1.2. Before installing or using the Software on such other hardware, Licensees (or either of them, as applicable) shall have obtained Cofiroute’s written consent to such installation and use; provided, that Cofiroute shall not unreasonably withhold such consent; 1.3.1.3. The validity of such consent shall be conditioned on Licensees’ continuing and diligent prosecution, during the term of such license, of the restoration of the Designated Hardware to operation; and 1.3.1.4. Immediately on the return of the Designated Hardware to operation, Licensees shall cease using the Software on, and shall remove the Software from, such other hardware; and Cofiroute’s consent to use the Software on such other hardware shall terminate and be of no further force or effect. 1.3.2. Licensees shall not install or use the Software on any hardware that has been selected as a replacement for the Designated Hardware without Cofiroute’s express prior written consent; provided, that Cofiroute shall not unreasonably withhold such consent if the replacement hardware shall meet or exceed the specifications set forth in Exhibit 1, attached hereto. 1.4. Copies. 1.4.1. Licensees shall not, without Cofiroute’s prior, written consent, copy any portion of the Software or any of the Documentation, as defined herein, delivered to Licensees pursuant to this License Agreement. Notwithstanding the foregoing, Licensees shall have the right to copy the Documentation solely to the extent required for independent valuation and verification testing efforts of Licensees. 1.4.2. Licensees shall not remove the Software or any Documentation (as defined herein) from the Sites. 1.5. Responsibility. Subject to the provisions of this License Agreement, Cofiroute shall be responsible for: (a) assuring proper configuration of the Designated Hardware and related equipment or devices to accommodate the Software; and (b) establishing adequate methods for operating and using the Software. 1.6. Term. Subject to the provisions of Section 6 hereof, the License’s Term shall be as follows: 1.6.1. The License shall commence as of the date first set forth above, and shall continue thereafter in full force and effect through and including June 30, 2021 (the “Initial Term”). 52 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 17336.02109\29406376.4 D-Attachment 3 4 924805.1 1.6.2 If the License is still in effect at the expiration of the Operating Agreement, then the License shall continue thereafter until Licensees (or either of them, in which case termination shall apply only to the terminating party) provide Cofiroute with written notice of termination. 1.6.3 The Initial Term and the subsequent term provided in Section 1.6 are collectively referred to herein as the “Term.” 2. Property Rights; Security. 2.1. Title. As between Cofiroute and Licensees title to the Software shall at all times remain with Cofiroute. 2.2. Nondisclosure; Security. 2.2.1. Licensees acknowledge that the Software and all Documentation is confidential in nature and constitute trade secrets belonging to Cofiroute. At all times during the Term and after the expiration thereof, Licensees shall: (a) hold in trust for Cofiroute’s benefit, the Software and all Documentation delivered to it; and (b) not, directly or indirectly, sell, rent, license, distribute, transfer, disclose or permit the sale, rental, licensing, distribution, transfer or disclosure of the Software, any Documentation and/or the contents of any of them to any other person or entity, except as required by law. 2.2.2. Licensees shall keep the Software and all Documentation delivered to it in a secure place at the Sites; and shall place and maintain the same under access and use restrictions that are both (a) sufficient to prevent disclosure of the same to unauthorized persons, and (b) not less strict than those applied by Licensees to other data designated by Licensees as confidential. 2.3. Copyrights and Other Marks. Licensees shall not remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the Software or any Documentation delivered to it. 3. Payment. 3.1. Fee Payment. For so long as Cofiroute is operating the 91 Express Lanes pursuant to the Operating Agreement, as may be amended from time to time, for each year during the Term, Licensees shall pay Cofiroute an annual aggregate fee of $175,000.00 (the “Annual Fee”) payable in twelve (12) equal monthly installments of $7,292.00 by each of the Agencies commencing on the Effective Date and on the same day each month thereafter during the Term or any extension thereof. RCTC and OCTA shall each pay one-half of the Annual Fee to Cofiroute in accordance with the foregoing 53 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 17336.02109\29406376.4 D-Attachment 3 5 924805.1 requirements. 3.1.1 Notwithstanding the foregoing, any fee previously paid by OCTA under its license agreement for the RAMS, entered into between OCTA and Cofiroute prior to the date hereof, shall be prorated and deducted from the initial Annual Fee payment owed by OCTA under this License Agreement. 3.1.2 In the case of a termination of this License Agreement as applies only to RCTC or OCTA, the Annual Fee shall be adjusted to provide for an Annual Fee of $100,000.00 for the party to which this License Agreement shall continue to apply, and of $100,000.00 should Section 3.2 apply to such party during the term. 3.2. Annual Fee Adjustment. If the Operating Agreement shall have been terminated for any reason, then the Annual Fee shall be increased to $200,000.00for each year thereafter (prorated for a fractional year) that the License Agreement remains in effect; which increased fee shall commence and be payable in the manner set forth in 3.1 above and continuing thereafter on the same day for each month thereafter and subject to 3.1.2. 4. Delivery, Installation. 4.1. Delivery. Delivery of the Software to the Sites together with user documentation (User Guide, Configuration Guide and Operations Guide) for the Software shall be prepared and completed in accordance with the requirements of the ETTM Agreement, and any additional requirements of OCTA, and provided in numbers that are reasonably sufficient to enable Cofiroute, as Licensees’ operator, to use the Software in the ordinary course of the operation of the 91 Express Lanes (the “Documentation”). Other than as expressly set forth in the ETTM Agreement, this License Agreement and/or the Escrow Agreement, Cofiroute shall have no obligation whatsoever to deliver to Licensees, and Licensees shall have no right to receive, any copies of the Software, or any source code or architecture of functional specifications therefor, or any Documentation. 4.2. Risk of Loss. If the Software or any Documentation is lost or damaged during initial shipment to the Sites, then Cofiroute shall replace it at no additional charge to Licensees. If the Software or any Documentation is lost or damaged while in Licensees’ possession, then Cofiroute shall replace it on payment by OCTA or RCTC, as appropriate, to Cofiroute of Cofiroute’s cost of reproduction. 4.3. Installation. 4.3.1. Cofiroute Duties. Cofiroute shall install the Software on the Designated Hardware pursuant to the terms of the ETTM Agreement and this License Agreement at the Sites and at such additional locations as Licensees may 54 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 17336.02109\29406376.4 D-Attachment 3 6 924805.1 reasonably request; subject, however, to the provisions of Section 1.2 of this License Agreement. 4.3.2. Licensees’ Duties. Licensees shall make available to Cofiroute, for installation of the Software pursuant to the ETTM Agreement, the Designated Hardware and such additional equipment and facilities, including the 91 Express Lanes Facilities owned by Licensees as may be reasonably necessary to achieve installation and cutover of the Software. Licensees shall take such commercially reasonable actions as Cofiroute may require in order to enable Cofiroute to achieve both migration of all data and cutover from the existing RAMS to the Software on or before the date or time period set forth in the Project Schedule included in the ETTM Agreement. 5. Warranty and Warranty Service. 5.1. Title. Subject to the provisions of Sections 5.1.3, Cofiroute warrants and represents to Licensees as follows: 5.1.1. Cofiroute has the right to license the Software to Licensees. 5.1.2. If the Software shall become, or in Cofiroute’s opinion is likely to become, the subject of a claim of infringement of a copyright or patent, then Cofiroute may obtain for Licensees the right to continue using the Software, or replace or modify the Software to render it noninfringing. 5.1.3. Cofiroute shall not be obligated to indemnify Licensees against claims or liability arising out of or related to either (a) Licensees’ modification or conversion of the Software and/or the subsequent use of any such modification or conversion, or (b) Licensees’ use or combination of the Software with programs or data not supplied or approved by Cofiroute, provided that if (a) or (b) of the foregoing applies only to OCTA or RCTC, and not both, Cofiroute shall still be required to indemnify the party that has not taken the actions described in (a) or (b). 5.2. Design, Workmanship and Materials. 5.2.1. Operating Warranties. For a period beginning on Effective Date and continuing for so long as both the Operating Agreement and the Maintenance Agreement shall remain in full force and effect (the “Warranty Period”), Cofiroute warrants as follows with respect to the operation of the Software (the “Operating Warranties”): 5.2.1.1. The Software shall conform to the Scope of Work in the Attachment B to the ETTM Agreement (“Scope of Work”). 55 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 17336.02109\29406376.4 D-Attachment 3 7 924805.1 5.2.1.2. The installation of the Software was performed in accordance with professional standards generally accepted in the industry. 5.2.1.3. The Software will be free of material defects or errors which substantially affect performance of the ETTM System. 5.2.2. Limitation. Provided that the Software conforms to the Scope of Work, Cofiroute does not warrant or represent that the Software is error free or bug free, or that Licensees will be able to use the Software without problems or interruptions; or that the Software and any equipment on which the Software is used will be free from vulnerability to attack on the network, including viruses and other techniques for attacking networks; provided, that nothing in this Section 5.2.2 shall in any way either (a) abate, diminish or extinguish, in whole or in part, Cofiroute’s duties herein; or (b) excuse any breach by Cofiroute of any of its obligations arising hereunder. 5.2.3. Applicability of Operating Warranties to Re-Done Work. The Operating Warranties shall apply to all portions of the Software corrected pursuant to this Section 5.2. 5.2.4. Exclusion. Cofiroute shall not be responsible for any damages caused by the abuse, misuse, or unauthorized modifications or repairs of the Software by Licensees (or either of them), their agents or third parties unrelated to Cofiroute. Any repairs necessitated by such abuse, misuse, unauthorized modifications or repairs shall be at OCTA’s or RCTC’s sole cost, as applicable. 5.2.5. Warranty Repairs. 5.2.5.1. Within twenty-four (24) hours of receipt by Cofiroute of notice from Licensees (or either of them) specifying a failure of the Software to satisfy any of the Operating Warranties, Licensees (or either of them) and Cofiroute shall mutually agree how and by when Cofiroute shall remedy such failure, using the Cure Time Schedule which is attached hereto as Exhibit 2; provided, that in cases of an emergency requiring immediate curative action, the parties hereto shall so agree immediately upon notice to or by Licensees (or either of them) of such emergency. 5.2.5.2. Cofiroute shall complete all warranty repair work under this Section 5.2 within the applicable time for such work on the Cure Time Schedule; provided, that if the parties hereto are unable, within the applicable time provided herein, to agree on the cure time applicable to any item of warranty repair work, then Cofiroute shall complete the said work within the cure time specified by Licensees (or either of them) (so long as Licensees shall have specified a cure time set forth in the Cure Time Schedule). 56 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 17336.02109\29406376.4 D-Attachment 3 8 924805.1 5.2.5.3. If Cofiroute shall have failed to complete such warranty repair work within the applicable time prescribed herein, then, subject to the provisions hereof and after notice to Cofiroute, Licensees may, at Cofiroute’s cost, perform such work or have it performed by reasonably qualified third parties. 5.2.5.4. If the parties are unable to resolve the following disputes by mutual agreement, then they shall do so under the provisions of Section 8: (a) Cofiroute’s liability, if any, for the cost of performance of warranty work by Licensees as provided herein; and (b) Cofiroute’s right, if any, to reimbursement of reasonable additional costs reasonably incurred by it in completing the warranty repair work within the time frame specified by Licensees. 6. Default and Termination. 6.1. Licensees. On the occurrence of any of the following, Licensees shall be deemed to be in material breach of this License Agreement, provided that if such occurrence is caused by RCTC or OCTA, individually, then only the party responsible for the occurrence shall be held responsible for such occurrence: 6.1.1. Licensees shall have failed or refused to pay when due, ten (10) days after written notice from Cofiroute of such failure, any sums of money coming due to Cofiroute from Licensees under the terms of this License Agreement. 6.1.2. Licensees shall have breached any of their obligations arising under Sections 1.4 and/or 2.2 of this License Agreement, and Cofiroute shall have provided Licensees with ten (10) days’ notice of such breach and opportunity to cure. 6.1.3. Licensees shall have failed or refused, within ten (10) days after written notice from Cofiroute, to perform or observe any of their obligations arising under this License Agreement other than pursuant to Sections 1.4 and/or 2.2 hereof, and not involving the payment of money to Cofiroute. 6.1.4. A receiver, trustee in bankruptcy, or similar officer shall have been appointed to take charge of all or any part of Licensees’ property. 6.1.5. Licensees shall have filed a petition for relief under the provisions of the Bankruptcy Code (11 U.S.C. §§ 101 et seq.), or such a petition shall have been filed against Licensee. 57 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 17336.02109\29406376.4 D-Attachment 3 9 924805.1 6.2. Termination. 6.2.1. The License shall be deemed to have terminated automatically and without further notice upon the occurrence of any of the following: 6.2.1.1. Expiration of the Term in accordance with the terms of this License Agreement. 6.2.1.2. As applies to RCTC only, RCTC shall be, or be deemed to be, in material breach of this License Agreement. 6.2.1.3. As applies to OCTA only, OCTA shall be, or be deemed to be, in material breach of this License Agreement. 6.2.1.4. As applies to RCTC only, RCTC’s right to operate the RCTC 91 Express Lanes under the Toll Facilities Agreement shall have terminated. 6.2.1.5. As applies to OCTA only, OCTA’s right to operate the OCTA 91 Express Lanes under its franchise shall have terminated. 6.2.2. Termination of the Operating Agreement shall not result in termination of this License Agreement. 6.2.3. Licensees, or either of them, in which case termination shall apply only to the terminating party, may terminate this License Agreement if Cofiroute shall be, or be deemed to be, in material breach of this License Agreement. The terminating party shall provide Cofiroute with written notice of termination setting forth the effective date thereof. 6.3. Effect of Termination. Immediately upon the termination of the License, Licensees shall: (a) remove the Software from the Designated Hardware; and (b) return the Software and all Deposit Materials and Additional Deposits (as those terms are defined in the Escrow Agreement) then in Licensee’s possession to Cofiroute together with (i) all Documentation in Licensee’s possession and related to the Software, and (ii) a written certification from Licensees’ Managing Director, under penalty of perjury, attesting to Licensees’ performance of their obligations under this Section 6.3. If termination of the License applies only to RCTC or OCTA, and not both parties, then the foregoing shall only apply to the party for which the License has terminated, and the License shall continue in effect as pertains to the other party. 6.4. Remedies. The rights and remedies of each party provided in this Section 6 are in addition to any other rights and remedies provided by law or under this License Agreement. 58 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 17336.02109\29406376.4 D-Attachment 3 10 924805.1 6.5. Indemnification. Cofiroute shall indemnify, defend and hold harmless Licensees, their officers, employees and agents from and against any and all claims (including attorney’s fees and reasonable expenses for litigation and settlement) for any loss or damages, bodily injuries, including death, damage to or loss of property, arising out of or related to a breach by Cofiroute of this License Agreement. Cofiroute’s maximum aggregate monetary liability to Licensees for any and all damages arising out of or related to any and all breaches by Cofiroute of this License Agreement or the Maintenance Agreement, and for indemnification of Licensees pursuant to this Section 6.5, including the Operating Agreement and all Exhibits, shall be as follows: 6.5.1 If, at the time a claim arises, either (a) the Operating Agreement, this License Agreement and the Maintenance Agreement are all in force; or (b) both the Operating Agreement and this License Agreement, but not the Maintenance Agreement, are in force; or (c) the Operating Agreement alone is in force; then the said maximum aggregate monetary liability, which shall apply separately to RCTC and OCTA, shall not exceed the sum of Five Million Dollars ($5,000,000.00) each. 6.5.2 If, at the time a claim arises, both this License Agreement and the Maintenance Agreement, but not the Operating Agreement, are in force, then the said maximum aggregate monetary liability, which shall apply separately to RCTC and OCTA, shall not exceed the sum of Seven Hundred Thousand Dollars ($700,000.00) each. 6.5.3 If, at the time a claim arises, this License Agreement alone is in force, then the said maximum aggregate monetary liability, which shall apply separately to RCTC and OCTA, shall not exceed the sum of Two Hundred Thousand Dollars ($200,000.00) each. 6.6. Cofiroute shall indemnify, defend and hold harmless Licensees, their officers, employees and agents from and against any and all claims (including attorney’s fees and reasonable expenses for litigation or settlement) for any loss or damages, bodily injuries, including death, damage to or loss of property, arising out of or related to a breach by Cofiroute of this License Agreement. Cofiroute’s maximum aggregate indemnification of Licensees, which shall apply separately to RCTC and OCTA, including the Operating Agreement and all Exhibits, shall be Five Million Dollars ($5,000,000) each, as provided in Paragraph D of Article 19 Indemnification of the Operating Agreement. 7. General Terms and Conditions. 7.1. Recitals. The Recitals are incorporated herein and made a part hereof. 7.2. Notices. Unless otherwise provided in this License Agreement, any notice required or permitted by this License Agreement to be given to any party hereunder shall be deemed to have been duly given if in writing and delivered personally or mailed by 59 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 17336.02109\29406376.4 D-Attachment 3 11 924805.1 first-class, registered, or certified mail, postage prepaid and addressed: To Cofiroute: To Licensee: Cofiroute USA, LLC 20 Pacifica, Suite 420 Irvine, CA 92618 Attn: Gary L. Hausdorfer, President and Chief Executive Officer Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Attn: Anne Mayer, Executive Director Orange County Transportation Authority 550 S Main St. Orange, CA 92868 Attn: Darrell Johnson, Chief Executive Officer 7.3. Assignment of Contract. Licensees shall not, without Cofiroute’s prior written consent, assign, delegate or otherwise transfer any of its rights or duties under this License Agreement; including without limitation, the License and the Software obtained pursuant to this License Agreement. Any attempted assignment, delegation or transfer by Licensee shall: (a) be null, void and of no force or effect whatsoever; and (b) constitute a material breach of this License Agreement by Licensees. 7.4. Amendments. No amendment or modification of this License Agreement shall be effective unless the same shall be in a writing duly executed by both parties hereto. 7.5. Nonwaiver. No failure to exercise, and no delay in exercising, a right, power, or privilege hereunder on the part of any party hereunder shall operate as a waiver of any such right, power, or privilege. No single or partial exercise of any right, power, or privilege hereunder shall preclude its further exercise. 7.6. Severability. If any part of this License Agreement shall be finally adjudged by a court of competent jurisdiction to be void, invalid or unenforceable, then that part of this License Agreement shall be deemed severed herefrom; and the remainder of this License Agreement shall remain fully valid and enforceable as though the void, invalid or unenforceable part of this License Agreement were never a part hereof. 7.7. Governing Law. This License Agreement shall be deemed to have been made in, and shall be construed pursuant to, the internal laws of the State of California, without resort to principles of conflicts of choice of law. 60 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 17336.02109\29406376.4 D-Attachment 3 12 924805.1 7.8. Entire Agreement. This License Agreement is the final, complete and exclusive statement of the parties’ agreement concerning the Software; and it supersedes and cancels all previous written and oral agreements, understandings, representations, undertakings and communications relating to the Software. 8. Dispute Resolution. 8.1. Administrative Dispute Resolution. Any dispute arising under the terms of this License Agreement which is not disposed of within a reasonable period of time by the Licensees' officers and Cofiroute’s officers normally responsible for the administration of this License Agreement shall be brought to the attention of RCTC’s Executive Director, OCTA’s Chief Executive Officer and Cofiroute’s President for joint resolution. At the request of any party hereunder, Cofiroute shall provide a forum for discussion of the disputed item(s), at which time RCTC’s Executive Director, OCTA’s Chief Executive Officer and Cofiroute’s President shall use reasonable efforts to resolve such dispute. If resolution cannot be reached by such persons, then either party may seek resolution through the procedures provided below. 8.2. Arbitration. Any dispute arising under this License Agreement shall, if the same has not been satisfactorily resolved under Section 8.1 hereof, be resolved by arbitration in Orange County, California. Such arbitration shall be conducted in accordance with the then-current American Arbitration Association rules for commercial arbitration. Licensees or Cofiroute may demand such arbitration by giving written notice thereof to the other party; provided, that Licensees or Cofiroute, whichever is the party giving such notice, shall name therein an Arbitrator. Within twenty (20) days thereafter, the other party (either Licensees or Cofiroute, as applicable) shall by written notice to the original party appoint a second Arbitrator. The Arbitrators thus appointed shall, within fifteen (15) days after the appointment of the second Arbitrator, appoint a third Arbitrator; and such three Arbitrators shall promptly attempt to resolve such dispute; provided, that: 8.2.1. If the second Arbitrator shall not have been appointed as aforesaid, then the first Arbitrator shall alone proceed to determine such matter. 8.2.2. If the two Arbitrators appointed by the parties shall be unable to agree upon the selection of such third Arbitrator within fifteen (15) days after the appointment of the second Arbitrator, then they or either of them shall give written notice of such failure to the parties; and if the parties fail to agree upon the selection of such third Arbitrator within fifteen (15) days after the Arbitrators appointed by the parties give notice as aforesaid, then the third such Arbitrator shall be appointed by the American Arbitration Association; or on its failure, refusal or inability to act (for conflict of interest or any other reason), the parties may apply for such appointment to a court of competent jurisdiction. 61 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 17336.02109\29406376.4 D-Attachment 3 13 924805.1 8.2.3. The parties may present to the Arbitrators, in support of their respective positions, any evidence made admissible under the laws of the State of California. 8.2.4. The Arbitrators may not: make any determination inconsistent with any of the terms of this License Agreement, or deprive any party hereto of any right in this License Agreement, or decide any matter other than the specific issue referred to arbitration as herein provided, or make any award of punitive damages. 8.2.5. The determination of the majority of the Arbitrators, or a sole Arbitrator, as the case may be, shall be conclusive upon the parties. The Arbitrators, or the sole Arbitrator, as the case may be, shall give written notice to the parties stating their or his determination, and shall deliver to each party a signed copy thereof. 8.2.6. Each party shall pay the fees and expenses of the Arbitrator appointed by such party and one-half of the other expenses of the arbitration properly incurred hereunder. Judgment on the award may be entered in any court of competent jurisdiction. 8.2.7. If the interests of OCTA and RCTC are adverse as relates to a dispute, the above process shall be modified such that OCTA and RCTC shall each have the right to appoint an Arbitrator, and Cofiroute shall have the right to appoint an Arbitrator. In such case, a third Arbitrator shall not be selected by the first two Arbitrators, as set forth in Section 8.2, or Section 8.2.2. WHEREFORE, the parties hereto have executed and delivered this License Agreement as of the date first written above. 62 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 17336.02109\29406376.4 D-Attachment 3 14 924805.1 SIGNATURE PAGE TO SOFTWARE LICENSE AGREEMENT COFIROUTE USA, LLC : By: Gary L. Hausdorfer Title: President and Chief Executive Officer RCTC: By: Anne Mayer, Executive Director OCTA: By: ___________________________________ Darrell Johnson, Chief Executive Officer EXHIBIT 1 – DESIGNATED HARDWARE EXHIBIT 2 – CURE TIME SCHEDULE 63 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 17336.02109\29406376.4 D-Attachment 3 15 924805.1 EXHIBIT 1 DESIGNATED HARDWARE Server Operating System: The operating system on all RAMS severs, including the database server, will be at least Microsoft Windows Server Standard 2008 x64 or latest version available. Workstation Operating System: The operating system on all workstations will be Windows 7 . Cofiroute will validate Workstation OS before it can be deployed. Third Party Software: At the time of implementation a complete suite of required software needed to support the application will be published at the current time: MS Internet Explorer, Mozilla Firefox, Adobe Acrobat Reader, etc. as required to enable all functions of RAMS and RAMS reporting. Database: The Relational Database Management System used by RAMS will be Microsoft SQL Server Enterprise 2008 x64 or latest version available. Hardware: All servers for the RAMS project will be HP based with Intel Xeon. The HP BladeSystem, HP Servers VMWARE ESX Enterprise will provide the server hardware standard for RAMS. 64 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 17336.02109\29406376.4 D-Attachment 3 16 924805.1 EXHIBIT 2 CURE TIME SCHEDULE Category Definition Target Action 1 Business Critical. Production use of the system is not possible and no workaround exists. Customer requires resolution urgently due to financial, legal and public risk exposure. Initial response within 2 hours. Resource assigned immediately and remains assigned until resolution. Target Resolution: 8 hours. 2 Production use of the system is possible, but a business function is disabled and no workaround exists. This category also applies to problems which severely impact the progress of an implementation project where no workaround exists. Initial response within 2 hours. Resource assigned within one day and remains assigned until resolution. Target Resolution: 48 hours. 3 Production use of the system is possible, but a workaround is unacceptable for more than a short period due to the frequency of the affected function’s usage and the criticality of the function. This category also applies to problems which severely impact implementation projects where there is an unacceptable long term workaround. Initial response within one working day. Resource assigned within a day. Target Resolution: 10 Business Days 4 All others. Production and/or implementation is not impacted severely for one of the following reasons: (g) an acceptable workaround exists; (h) the problem is resolved onsite; (i) the problem is not severe; or (j) the extent of the problem is limited. Resolved as time permits, and made available as part of a regularly scheduled maintenance release. 65 AGENDA ITEM 6D Agenda Item 6D RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: January 11, 2017 TO: Riverside County Transportation Commission FROM: Mark Lancaster, Right of Way Manager Ruby Arellano, Management Analyst THROUGH: Anne Mayer, Executive Director SUBJECT: Agreement for Railroad Right of Way Property Maintenance Services STAFF RECOMMENDATION: This item is for the Commission to: 1) Award Agreement No. 17-33-028-00 to Joshua Grading & Excavating, Inc. (Joshua Grading) for railroad right of way (ROW) property maintenance services for a three-year term, and two one-year options to extend the agreement, in an amount of $2,750,000, plus a contingency amount of $250,000, for a total amount not to exceed $3 million; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement, including option years, on behalf of the Commission; 3) Authorize the Executive Director or designee to execute task orders awarded to the contractor under the terms of the agreements; and 4) Authorize the Executive Director or designee to approve the use of the contingency amount as may be required for these services. BACKGROUND INFORMATION: The Commission owns and maintains approximately 24 miles of the operating railroad ROW within the county of Riverside. The Commission’s maintenance begins at a junction with the BNSF Railway (BNSF) line north of the city of Riverside and turns southeast along the San Jacinto Branch Line. The terminus of the line is in the city of Menifee west of Sherman Road. This corridor is operated by the Southern California Regional Rail Authority (SCRRA) for the Metrolink commuter trains and by BNSF for freight trains. To allow for the safe and efficient operation of passenger and freight trains, the ROW needs to comply with federal, state, and local regulations regarding weed abatement, fire prevention, and nuisance liability standards. Services required consist of weed abatement and vegetation control (fire hazard prevention), herbicide and pesticide applications, removal of debris and trash, fencing and barricade installation and/or repairs, drainage repairs, graffiti abatement and control, tree trimming and removals, installation/maintenance/repair of railroad signage, and abatement of illegal structures and shelters and related items, materials and substances 66 Agenda Item 6D associated with transient or homeless persons trespassing upon the ROW. The abatement of illegal structures and shelters will be carried out in coordination with applicable local law enforcement and in accordance with direction from the Commission and its legal counsel, which may require consultation and coordination with recognized service agencies and/or advocacy organizations serving the homeless population in appropriate cases. The removal of hazardous materials will be coordinated with a licensed hazardous materials consultant. Procurement Process Staff determined the weighted factor method of source selection to be the most appropriate for this procurement, as it allows the Commission to identify the most advantageous proposal with price and other factors considered. Non-price factors include elements such as qualifications of firm, personnel, and the ability to respond to the Commission’s needs for railroad ROW services as set forth under the terms of the request for proposals (RFP) No. 17-33-028-00. RFP No. 17-33-028-00 for railroad ROW property maintenance services was released on October 20, 2016. A public notice was advertised in the Press Enterprise, and the RFP was posted on the Commission’s PlanetBids website, which is accessible through the Commission’s website. Utilizing PlanetBids, emails were sent to 165 firms, 39 of which are located in Riverside County. Through the PlanetBids site, 27 firms downloaded the RFP; 1 of these firms is located in Riverside County. A pre-proposal conference was held on October 27, and attended by 3 firms; 1 firm is local to Riverside County. Staff responded to all questions submitted by potential proposers prior to the November 3 clarification deadline date. Two firms – DeAngelo Brothers, LLC (Riverside); and Joshua Grading (Phelan) – submitted proposals prior to the 2:00 p.m. submittal deadline on November 17. Both of the firms submitted responsive and responsible proposals. Utilizing the evaluation criteria set forth in the RFP, the two proposals were evaluated and scored by an evaluation committee comprised of Commission staff. As a result of the evaluation committee’s assessment of the written proposals, the evaluation committee recommends contract award to Joshua Grading to perform railroad ROW property maintenance services for a three-year term, with two, one-year options to extend the agreement, for an amount not to exceed $3 million, as this firm earned the highest total evaluation score. The overall evaluation ranking, based on highest to lowest total evaluation score, and the total price are presented in the following table. Firm Price Overall Ranking Joshua Grading $1,412,923 1 DeAngelo Brothers, LLC $2,107,591 2 The Commission’s model on-call and maintenance services agreement will be entered into with the consultant subject to any changes approved by the Executive Director and pursuant to legal counsel review. Staff oversight of the contract will maximize the effectiveness of the consultant and minimize costs to the Commission. 67 Agenda Item 6D Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18+ Amount: $ 300,000 $ 2,700,000 Source of Funds: 2009 Measure A Western County Rail funds Budget Adjustment: No N/A GL/Project Accounting No.: 003800 86105 221 33 86105 XXXXXX 86105 265 33 86105 (various projects) Fiscal Procedures Approved: Date: 12/19/2016 Attachment: Draft On-Call and Maintenance Services Agreement No. 17-33-028-00 68 17336.00603\29314783.1 1 Agreement No. 17-33-028-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION ROUTINE AND ON-CALL RAILROAD RIGHT OF WAY MAINTENANCE SERVICES AGREEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this [***INSERT DAY***] day of [***INSERT MONTH***], [***INSERT YEAR***] by and between the Riverside County Transportation Commission (“Commission”) and Joshua Grading & Excavating, Inc, a Corporation, with its principal place of business at PO Box 292329, Phelan, CA 92329 (“Contractor”). Commission and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement. 2. RECITALS. 2.1 Commission is the Transportation Commission for the County of Riverside and organized under the laws of the State of California with the power to contract for services necessary to achieve its purpose. 2.2 Commission owns and operates nine (9) commuter rail stations and one transit center serving Riverside County, the addresses and descriptions of which are set forth in Exhibit “A”, attached hereto and incorporated herein by reference (“Commuter Rail Stations”). 2.3 On or about _______________, Commission issued a Request for Proposals No. _______________ (“RFP”), pursuant to which Commission sought proposals from contractors to provide routine and on-call railroad right of way maintenance services. 2.4 Contractor desires to perform and assume responsibility for the provision of certain routine and on-call railroad right of way maintenance services required by Commission on the terms and conditions set forth in this Agreement and, for the on-call portions of the services, in the task order(s) to be issued pursuant to this Agreement and executed by the Commission and Contractor ("Task Order"). 2.5 The work generally includes railroad right-of-way property maintenance services. Contractor represents that it is a professional Contractor, experienced in providing routine and on-call railroad right of way maintenance services to public clients, and is familiar with the plans of Commission. 2.6 Commission desires to engage Contractor to render routine and on-call rail road right of way maintenance services for the Commission. Routine railroad right of way maintenance services shall be as set forth in Exhibit “A”, attached hereto and incorporated herein 69 17336.00603\29314783.1 2 by reference. On-call railroad right of way services shall be ordered by Task Order(s) to be issued pursuant to this Agreement for future projects as set forth herein. The routine services set forth in Exhibit “A” and each individual project ordered under a Task Order shall be referred to, herein, collectively, as the “Project”. 3. TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Contractor promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work, as necessary, to fully and adequately provide the routine railroad right of way maintenance services as set forth in Exhibit “A” and any on-call railroad right of way maintenance services required by Commission, as shall be set forth in a Task Order, collectively referred to herein as the "Services". On-call Services shall be more particularly described in the individual Task Orders issued by the Commission’s Executive Director or designee. No on-call Services shall be performed unless authorized by a fully executed Task Order in the form attached hereto as Exhibit "D". All Services shall be subject to, and performed in accordance with this Agreement, the relevant Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.1.2 Term. The term of this Agreement shall be from [***INSERT START DATE***] to January 31, 2020, unless earlier terminated as provided herein. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services. 3.2 Responsibilities of Contractor. 3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Commission retains Contractor on an independent contractor basis and not as an employee. Contractor 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 Contractor shall also not be employees of Commission and shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor 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, disability insurance, and workers’ compensation insurance. 3.2.2 Schedule of Services. Contractor shall perform the routine railroad right of way maintenance Services expeditiously, within the term of this Agreement, and in accordance with the schedule set forth in Exhibit “B” attached hereto and incorporated herein by reference. 70 17336.00603\29314783.1 3 Contractor shall perform any on-call Services in accordance with the schedule that shall be set forth in the Task Order (collectively, "Schedule of Services"). Contractor shall be required to commence work on a Task Order within five (5) days of receiving a fully executed Task Order. Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Contractor’s conformance with each Schedule, the Commission shall respond to Contractor’s submittals in a timely manner. Upon the Commission’s request, Contractor shall provide a more detailed schedule of anticipated performance to meet the relevant Schedule of Services. 3.2.3 Conformance to Applicable Requirements. All work prepared by Contractor shall be subject to the approval of Commission. 3.2.4 Commission’s Representative. The Commission hereby designates [***INSERT NAME OR TITLE***], 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 the Commission for all purposes under this Agreement. Contractor shall not accept direction or orders from any person other than the Commission’s Representative or his or her designee. 3.2.5 Contractor’s Representative. Contractor hereby designates [***INSERT NAME OR TITLE***], or his or her designee, to act as its representative for the performance of this Agreement (“Contractor’s Representative”). Contractor’s Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.6 Coordination of Services. Contractor 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. 3.2.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor 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. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the Commission, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the Commission to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the Commission, shall be promptly removed 71 17336.00603\29314783.1 4 from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.8 Period of Performance. Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor. Contractor agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such completion schedule or Project milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the Commission will suffer damage. 3.2.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Contractor may be required to do, or respecting the size of any payment to Contractor during the performance of this Contract, Contractor shall continue to perform the Work while said dispute is decided by the Commission. If Contractor disputes the Commission’s decision, Contractor shall have such remedies as may be provided by law. 3.2.10 Laws and Regulations; Employee/Labor Certifications. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Commission, Contractor shall be solely responsible for all costs arising therefrom. Commission is a public entity of the State of California subject to, among other rules and regulations, the Public Utilities Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a county transportation commissions are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours' labor shall constitute a legal day's work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Contractor shall defend, indemnify and hold Commission, its officials, 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. 3.2.10.1 Employment Eligibility; Contractor. By executing this Agreement, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Contractor. Contractor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Contractor shall avoid any violation of 72 17336.00603\29314783.1 5 any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Contractor shall maintain records of each such verification, and shall make them available to the Commission or its representatives for inspection and copy at any time during normal business hours. The Commission shall not be responsible for any costs or expenses related to Contractor’s compliance with the requirements provided for in Section 3.2.10 or any of its sub-sections. 3.2.10.2 Employment Eligibility; Subcontractors, Sub- subcontractors and consultants. To the same extent and under the same conditions as Contractor, Contractor shall require all of its subcontractors, sub-subcontractors and consultants performing any work relating to the Project or this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 3.2.10.1. 3.2.10.3 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the Commission to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub- subcontractors or consultants to meet any of the requirements provided for in Sections 3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Contractor under Section 3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements. 3.2.10.4 Labor Certification. By its signature hereunder, Contractor 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. 3.2.10.5 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, 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. Contractor shall also comply with all relevant provisions of Commission’s Disadvantaged Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.2.10.6 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Contractor shall specifically be aware of the CARB limits and requirements’ application to "portable equipment", which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify 73 17336.00603\29314783.1 6 Commission against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement. 3.2.10.7 Water Quality. (A) Management and Compliance. To the extent applicable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency and the State Water Resources Control Board; the Commission’s rules regarding discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. (B) Liability for Non-Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor or Commission to penalties, fines, or additional regulatory requirements. Contractor shall defend, indemnify and hold the Commission, its officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the Commission, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in this Agreement, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by Commission, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, Commission will provide Contractor with a list of training programs that meet the requirements of this paragraph. 3.2.11 Insurance. 3.2.11.1 Time for Compliance. Contractor 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, Contractor shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 74 17336.00603\29314783.1 7 3.2.11.2 Minimum Requirements. Contractor 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 Contractor, its agents, representatives, employees or subcontractors. Contractor 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. Contractor 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 Contractor 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. 3.2.11.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor 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 contractors 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. 75 17336.00603\29314783.1 8 (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 Contractor or for which the Contractor 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 Contractor’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 Contractor’s insurance and shall not be called upon to contribute with it in any way. (C) Workers’ Compensation and Employers Liability Coverage. (i) Contractor 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 Contractor. (D) Railroad Protective Liability. In addition to the above, Contractor shall, in connection with any performance of the Services or the Project within twenty-five (25) feet vertically or horizontally of the railroad tracks, either directly by Contractor or by its subconsultants, acquire and keep in force during such performance, railroad protective liability insurance with a combined single limit of two million dollars ($2,000,000) and a general aggregate of six million dollars ($6,000,000). 76 17336.00603\29314783.1 9 (E) 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) Contractor shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Contractor 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 Contractor 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. Contractor shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Contractor 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 Contractor, 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 Contractor pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. 77 17336.00603\29314783.1 10 (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 Contractor or Commission will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Contractor 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: 3.2.11.4 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, Contractor 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 Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.2.11.5 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. 3.2.11.6 Verification of Coverage. Contractor 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. 3.2.11.7 Subcontractor Insurance Requirements. Contractor shall not allow any subcontractors or subcontractors 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 subcontractors 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 Contractor, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subcontractors. 78 17336.00603\29314783.1 11 3.2.12 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.2.13 Accounting Records. Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Contractor 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. Contractor 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. 3.3 Fees and Payments; Labor Code Requirements. 3.3.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation to be provided under this Agreement, including all Task Orders issued pursuant to this Agreement shall not exceed [__INSERT DOLLAR AMOUNT__]. The total compensation per Task Order shall be set forth in the relevant Task Order, and shall not exceed said amount without the written approval of the Commissioner’s Executive Director. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Compensation. Contractor shall submit to Commission a monthly itemized statement which indicates work completed and hours of Services rendered by Contractor. 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. 3.3.3 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by Commission. 3.3.4 Extra Work. At any time during the term of this Agreement, Commission may request that Contractor 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. Contractor shall not perform, nor be compensated for, Extra Work without written authorization from Commission’s Representative. 79 17336.00603\29314783.1 12 3.3.5 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 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 “public works” and “maintenance” projects. Since the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Commission shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Contractor 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 Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify and hold the Commission, its officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.3.6 Payroll Records. In accordance with the requirements of California Labor Code Section 1776, Contractor shall keep accurate payroll records which are either on forms provided by the Division of Labor Standards Enforcement or which contain the same information required by such forms. Responsibility for compliance with California Labor Code Section 1776 shall rest solely with Contractor, and Contractor shall make all such records available for inspection at all reasonable hours. 3.3.7 Registration. Since 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 Contractor and all subcontractors must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractor. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. 3.3.8 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, Contractor 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 Contractor or any sub-contractor for the employment and training of apprentices. Upon issuance of this certificate, Contractor and any sub-contractor 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. 80 17336.00603\29314783.1 13 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 Contractor. 3.3.9 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 Contractor or the Services are not subject to the Eight-Hour Law. Contractor 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-contractor 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 Contractor or the Services are not subject to the Eight-Hour Law. 3.4 Termination of Agreement. 3.4.1 Grounds for Termination. Commission may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Contractor shall be compensated only for those services which have been adequately rendered to Commission, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause. 3.4.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Contractor to provide all finished or unfinished Documents and Data and other information of any kind prepared by Contractor in connection with the performance of Services under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request. 3.4.3 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. 3.5 General Provisions. 3.5.1 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: 81 17336.00603\29314783.1 14 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. 3.5.2 Indemnification. 3.5.2.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the Commission, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions of Contractor, its officials, officers, employees, subcontractors, contractors or agents in connection with the performance of the Services, the Project, this Agreement or any Task Order, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Contractor'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 Contractor. 3.5.2.2 Additional Indemnity Obligations. Contractor shall defend, with Counsel of Commission's choosing and at Contractor’s own cost, expense and risk, any and all claims, suits, actions or other proceedings of every kind covered by Section 3.5.2.1 that may be brought or instituted against Commission or its officials, officers, employees, volunteers and agents. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against Commission or its officials, officers, employees, volunteers and agents as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse Commission for the cost of any settlement paid by Commission or its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for Commission’s attorneys’ fees and costs, including expert witness fees. Contractor shall reimburse Commission and its 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. Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the Commission, its officials officers, employees, agents, or volunteers. 3.5.3 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. In 82 17336.00603\29314783.1 15 addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the Commission. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the Commission. 3.5.4 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.5 Commission’s Right to Employ Other Contractors. Commission reserves right to employ other contractors in connection with this Project. 3.5.6 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.7 Assignment or Transfer. Contractor 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. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 3.5.8 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to Commission include its officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement. 3.5.9 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.10 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise. 3.5.11 No Third Party Beneficiaries. Except to the extent expressly provided for in Section 3.5.7, there are no intended third party beneficiaries of any right or obligation assumed by the Parties. 83 17336.00603\29314783.1 16 3.5.12 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. 3.5.13 Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Contractor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the Commission’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, Commission shall have the right to rescind this Agreement without liability. 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. 3.5.14 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. 3.5.15 Authority to Enter Agreement. Contractor 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. 3.5.16 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.5.17 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 by a writing signed by both parties. 3.5.18 Federal Provisions. If funding for the Services is provided, in whole or in part, by the Federal Transportation Administration (“FTA”) Contractor shall also fully and adequately comply with the provisions included in Exhibit “F” (Federal Requirements) attached hereto and incorporated herein by reference (“Federal Requirements”). With respect to any conflict between such Federal Requirements and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control. [SIGNATURES ON NEXT PAGE] 84 17336.00603\29314783.1 17 SIGNATURE PAGE FOR ROUTINE AND ON-CALL RAILROAD RIGHT OF WAY MAINTENANCE SERVICES AGREEMENT BETWEEN THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND JOSHUA GRADING & EXCAVATING, INC. IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first set forth above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION John F. Tavaglione, Chair Approved as to form: Best Best & Krieger LLP General Counsel JOSHUA GRADING & EXCAVATING, INC. Signature Name Title ATTEST: Signature Name Title A corporation requires the signatures of two corporate officers. One signature shall be that of the chairman of board, the president or any vice president and the second signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or any assistant treasurer of such corporation. If the above referenced persons are not the intended signators, evidence of signature authority shall be provided to RCTC. 85 17336.00603\29314783.1 18 EXHIBIT “A” SCOPE OF SERVICES [***INSERT SCOPE***] 86 17336.00603\29314783.1 19 EXHIBIT “B” SCHEDULE OF SERVICES [***INSERT SCHEDULE***] 87 17336.00603\29314783.1 20 EXHIBIT “C” COMPENSATION [***INSERT RATES & AUTHORIZED REIMBURSABLE EXPENSES***] 88 17336.00603\29314783.1 21 EXHIBIT “D” SAMPLE TASK ORDER FORM RIVERSIDE COUNTY TRANSPORTATION COMMISSION TASK ORDER Task Order No. _____________ Agreement No. ______________ Contractor: _________________________ The Contractor is hereby authorized to perform the following work subject to the provisions of the Agreement identified above: List any attachments: (Please provide if any.) Dollar Amount of Task Order: Not to exceed $_____,_____.00 Completion Date: _____________, 201__ The undersigned Contractor hereby agrees that it will provide all equipment, furnish all materials, except as may be otherwise noted above, and perform all services for the work above specified in accordance with the Contract identified above and will accept as full payment therefore the amount shown above. Riverside County Transportation Commission Contractor Dated: _________________ Dated: _________________ By: ________________________ By: ____________________ Title: ________________________ Title: ____________________ 89 17336.00603\29314783.1 22 EXHIBIT “E” FEDERAL REQUIREMENTS [***TO BE INSERTED IF APPLICABLE***] 90 AGENDA ITEM 6E Agenda Item 6E RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: January 11, 2017 TO: Riverside County Transportation Commission FROM: Gary Ratliff, Facilities Administrator THROUGH: Anne Mayer, Executive Director SUBJECT: Agreements for Closed Circuit Television Maintenance and Repairs and Capital Improvements STAFF RECOMMENDATION: This item is for the Commission to: 1)Approve Amendment No. 4, to Agreement No. 13-24-066-00 with Fibertronics, Inc. (Fibertronics) for closed circuit television (CCTV) security system capital improvements for an additional amount of $318,000, plus a contingency amount of $31,800, for a total additional amount of $349,800, and a total contract amount not to exceed $1,643,405; 2)Authorize the procurement of CCTV equipment through the use of the California Multiple Award Schedules (CMAS) pursuant to the Public Contract Code Section 10299(a) and the Commission’s Procurement Policy Manual in the amount of $667,000.00, plus a contingency amount of $66,700, for a total amount not to exceed $733,700; 3)Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 4)Authorize the Executive Director or designee to execute task orders awarded under the terms of the agreements; and 5)Authorize the Executive Director or designee to approve the use of the contingency amount as may be required for the CCTV maintenance, repairs, and capital improvements. BACKGROUND INFORMATION: At its April 10, 2013 meeting, the Commission approved Agreement No. 13-24-066-00 with Fibertronics to provide CCTV security system maintenance, repairs, and capital improvements for the five commuter rail stations owned and operated by the Commission – Downtown Riverside, La Sierra, Pedley, North Main Corona, West Corona – and Perris Transit Center (classic stations) for a three-year term, and two one-year options to extend the agreement, in an amount not to exceed $614,570. As noted at that meeting, staff returned to the Commission and obtained approval for an amendment to the agreement for certain CCTV capital improvements in the amount of $679,035 for CCTV maintenance, repairs, and capital improvements at three new Perris Valley Line (PVL) stations. This brought the total authorization to $1,293,605. 91 Agenda Item 6E With the commencement of PVL operations in June 2016, the Commission now owns and operates nine commuter rail stations and an operations control center in Riverside County (County). As a result of the PVL operations, coordination with the Southern California Regional Rail Authority, city of Riverside, and the County, and fire/public safety services will continue to require ongoing partnership and communication in order to address the needs and safety of the County’s stakeholders, commuters, community, and residents. Since commencement of PVL operations, the Commission’s partners have raised several additional safety concerns including the PVL rail crossings at Poarch Road, Watkins Drive, Blaine Street, Spruce Street, and Mt. Vernon Avenue. To resolve these concerns with the stakeholder agencies in a timely manner, the Commission is currently using Fibertronics to place CCTV video surveillance at these locations along with an electronic operating gate system at Poarch Road for fire/safety personnel to utilize in the event of fire or other emergency events that require the opening of the closed crossing. As a result of these capital improvements required for the safety, preservation, and protection of the PVL route, staff expended a substantial portion of the Fibertronics agreement authority on the installation of crossing cameras, electronic command and control of access, video surveillance, and related software and hardware for operations at these locations. Also, now that the stations are complete and operating, the CCTV systems requirements, and therefore the costs to install those systems, will be higher than originally anticipated in 2015. As a result, CCTV upgrades at the classic stations and installation of new CCTV systems at the three new PVL stations cannot be completed without additional contract authorization. Staff estimates $318,000, plus a contingency of $31,800, for an additional amount of $349,800 is needed for Fibertronics to provide the labor and equipment to complete installation of the CCTV capital improvements at the classic and new stations. Additional equipment costs to complete these capital improvements are estimated at $667,000, plus a contingency of $66,700, for a total amount not to exceed $733,700, and staff recommends the procurement of the equipment through a CMAS Agreement pursuant to Public Contract Code Section 10299(a) and the Commission’s Procurement Policy Manual, to assure competitive pricing. All costs for capital improvements will be funded by Proposition 1B grant funds. CCTV maintenance and repairs as well as capital improvements are an essential part of the security operations. Installing and upgrading the system enhances public safety, reduces vandalism, prevents crime, and identifies criminal activity. The CCTV system has provided law enforcement the ability to identify fault, investigate accidents, and incarcerate offenders, while providing a sense of security and safety for the customers and protecting both the Commission and customers’ assets. 92 Agenda Item 6E Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18 Amount:$611,000 $472,500 Source of Funds: 2009 Measure A Western County Rail and Proposition 1B security funds Budget Adjustment: NO N/A GL/Project Accounting No.: 244XXX 73301/73315 00000 0000 103 24 73301 $1,083,500 Fiscal Procedures Approved: Date: 12/29/2016 Attachment: Draft Agreement No. 13-24-066-04 93 17336.00603\29131210.2 1 Agreement No. 13-24-066-04 AMENDMENT NO. 4 TO AGREEMENT FOR CLOSED CIRCUIT TELEVISION SYSTEMS MAINTENANCE SERVICES FOR METROLINK STATIONS WITH FIBERTRONICS, INC. 1. PARTIES AND DATE This Amendment No. 4 to the Agreement for Closed Circuit Television (“CCTV”) System Maintenance Services is made and entered into as of _____2017, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“Commission”) and FIBERTRONICS, INC., a ("Consultant"). 2. RECITALS 2.1 The Commission and the Consultant have entered into an agreement dated May 29, 2013 for the purpose of providing CCTV system maintenance services (the "Master Agreement"). 2.2 The Commission and the Consultant have entered into an Amendment No. 1 to the Master Agreement, dated June 17, 2015, for the purpose of revising the Scope of Services to include the Perris Valley Line stations and additional compensation. 2.3 The Commission and the Consultant have entered into an Amendment No. 2 to the Master Agreement, dated July 1, 2016, for the purpose of extending the term of the Master Agreement and for providing additional compensation for the continued provision of CCTV system maintenance services. 2.4 The Commission and the Consultant have entered into an Amendment No. 3 to the Master Agreement, dated July 1, 2016 for the purpose of including quarterly maintenance services cost for the new Perris Valley Line stations and for the continued provision of CCTV system maintenance services. 2.5 The parties now desire to amend the Master Agreement in order to provide additional compensation for the continued provision of CCTV system maintenance services. 94 17336.00603\29131210.2 2 3. TERMS 3.1 Compensation for Services provided under this Amendment No. 4 shall be at the rates set forth in the Master Agreement. 3.2 The maximum compensation to be provided under this Amendment No. 4 shall not exceed Three Hundred Eighteen Thousand Dollars ($318,000), without written authorization from the Commission’s Executive Director. The total not-to-exceed amount of the Master Agreement, including this Amendment No. 4, is One Million Six Hundred Eleven Thousand Six Hundred Five Dollars ($1,611,605). 3.4 Except as amended by this Amendment, all provisions of the Master Agreement, as amended by Amendment Nos. 1-3, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the parties under this Amendment. [Signatures on following page] 95 17336.00603\29131210.2 3 SIGNATURE PAGE TO AGREEMENT NO. 13-24-066-04 IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the date first herein above written. RIVERSIDE COUNTY FIBERTRONICS, INC. TRANSPORTATION COMMISSION By: _____________________________ By: _________________________ Anne Mayer, Executive Director Signature __________________________ Name __________________________ Title APPROVED AS TO FORM: Attest: By: _____________________________ By: ________________________ Best Best & Krieger LLP Counsel to the Riverside County Its: ________________________ Transportation Commission * A corporation requires the signatures of two corporate officers. One signature shall be that of the chairman of board, the president or any vice president and the second signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or any assistant treasurer of such corporation. If the above persons are not the intended signators, evidence of signature authority shall be provided to the Commission. 96 AGENDA ITEM 6F Agenda Item 6F RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: January 11, 2017 TO: Riverside County Transportation Commission FROM: Patti Castillo, Capital Projects Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Agreement with S2 Engineering for Construction Management Services for the Construction of the La Sierra Parking Lot Expansion Project STAFF RECOMMENDATION: This item is for the Commission to: 1)Award Agreement No. 16-24-080-00 to S2 Engineering, Inc. (S2) to provide construction management (CM), materials testing, and construction surveying services for the La Sierra Parking Lot Expansion project, in the amount of $544,000, plus a contingency amount of $54,400, for a total amount not to exceed $598,400; 2)Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3)Authorize the Executive Director or designee to approve the use of the contingency amount as may be required for the project. BACKGROUND INFORMATION: The La Sierra Station was constructed by five separate construction projects, starting in 1995 and finishing in 2003 with the completion of the existing parking lot. The existing parking consists of 1,055 parking spaces, which includes 25 Americans with Disabilities Act spaces, 25 Rideshare spaces, and one bus bay. On a daily basis during the work week, the parking lot reaches 95 percent capacity. As part of the State Route 91 Corridor Improvement Project’s (91 Project) efforts to obtain a Transportation Infrastructure Finance and Innovation Act (TIFIA) loan, the Commission made a multimodal commitment for express bus service as a part of the 91 Project. The Riverside Transit Agency (RTA) agreed to provide the new service, and the location identified for originating the route is the La Sierra Station, just east of the entry point to the RCTC 91 Express Lanes. In April 2009, the Commission approved an amendment to Agreement No. 02-33-029, with Engineering Resources of Southern California for design services for an expansion of the La Sierra parking lot to the adjacent 4.6-acre Commission-owned parcel. A preliminary design was then completed. 97 Agenda Item 6F In May 2016, the Commission adopted Resolution No. 16-009 certifying the La Sierra Parking Lot Expansion Project Initial Study/Mitigated Negative Declaration and approved the La Sierra Parking Lot Expansion project. With the completion of the environmental phase, staff moved forward with the project design. The project will expand the existing parking lot at the La Sierra Station for both regional and commuter rail and bus passengers by providing approximately 495 additional parking spaces, six bus bays for RTA service, a new signalized access/driveway onto Indiana Avenue, landscaping, and a small storage building and restroom facility for the transit operators and station security personnel. The total project construction cost is estimated at $3.2 million. The funding for this project is comprised of proceeds from the sale of two excess properties that were purchased using federal funds in 2003 as part of a larger parcel for the La Sierra Station. On May 8, 2015, the Federal Transit Administration concurred that the sale proceeds can be applied toward transit- related capital projects, specifically for the expansion of the La Sierra Station bus/park and ride parking lot. Accordingly, CM, materials testing, and construction surveying services are required prior to construction. The funding for CM services is comprised of Proposition 1B grant funds. Procurement Process Pursuant to Government Code 4525 et seq, selection of architectural, engineering, and related services, including construction management, 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 these services. Evaluation criteria included elements such as corporate qualifications of the offeror and team, CM organization and qualifications of key team personnel, project understanding and approach, and materials testing and construction surveying services. Request for Qualifications (RFQ) No. 16-24-080-00 for CM services was released by staff on May 12, 2016. A public notice was advertised in the Press Enterprise, and the RFQ was posted to the Commission’s PlanetBids website, which is accessible through the Commission’s website. Utilizing PlanetBids, emails were sent to 660 firms, 126 of which are located in Riverside County. Through the PlanetBids site, 89 firms downloaded the RFQ; 22 of these firms are located in Riverside County. A pre-submittal conference was held on May 26 and attended by 17 firms; 8 firms are local to Riverside County. Staff responded to all questions and requests for clarification submitted by potential proposers prior to the June 2 written question deadline. Six firms – Dynamic Engineering Services, Inc. (Corona); Falcon Engineering Services, Inc. (Corona); MARRS Services, Inc. (Fullerton); PreScience Corporation (Santa Ana); Psomas (Riverside); and S2 (Rancho Cucamonga) – submitted responsive statements of qualifications (SOQs) prior to the 98 Agenda Item 6F 2:00 p.m. submittal deadline on June 16. Based on the evaluation criteria set forth in the RFQ, the firms were evaluated and scored by an evaluation committee comprised of Commission, Bechtel, and Caltrans staff. Based on the evaluation committee’s assessment of the written SOQs and pursuant to the terms of the RFQ, the evaluation committee short listed and invited four firms – Falcon Engineering Services, Inc.; PreScience Corporation; Psomas; and S2 – to the interview phase of the evaluation and selection process. Interviews were conducted on July 19. Subsequently, the evaluation panel determined S2 to be the most qualified firm to provide CM, materials testing, and surveying services for the La Sierra Parking Lot Expansion project, as it earned the highest total evaluation score. The SOQ score counted for 40 percent of the overall combined score, and the interview counted for 60 percent. Negotiation of Contract Terms, Scope, Schedule, and Cost After the evaluation committee determined S2 to be the most qualified firm to perform the work outlined in the scope of services, staff began negotiations to finalize contract terms, scope, schedule, and cost to establish a fair and reasonable price. Staff Recommendation Staff recommends the Commission approve the consultant selection process and award Agreement No. 16-24-080-00 to S2 to provide CM, materials testing, and surveying services for the La Sierra Parking Lot Expansion project in the amount of $544,000, plus a contingency of $54,400, for a total amount not to exceed $598,400. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18+ Amount: $ 50,000 $548,400 Source of Funds: Proposition 1B PTIMSEA Budget Adjustment: No N/A GL/Project Accounting No.: 653826 81302 00000 0000 265 33 81301 Fiscal Procedures Approved: Date: 12/29/2016 Attachment: Draft Agreement No. 16-24-080-00 99 AGREEMENT NO. 16-24-080-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH S2 ENGINEERING INC. FOR CONSTRUCTION MANAGEMENT SERVICES, MATERIALS TESTING AND CONSTRUCTION SURVEYING SERVICES FOR THE LA SIERRA STATION PARKING LOT EXPANSION 1. PARTIES AND DATE. This Agreement is made and entered into this day of , 2017, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co- mmission") and S2 ENGINEERING, INC.. ("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 construction management 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 La Sierra Station Parking Lot Expansion 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. 100 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. 101 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. 102 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. 103 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. 104 (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. 105 (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 106 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 [_____Dollars ($ )_____] 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 107 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: CONSULTANT: COMMISSION: S2 Engineering, Inc. Riverside County 8608 Utica Avenue Transportation Commission Suite 100 4080 Lemon Street, 3rd Floor Rancho Cucamonga, CA 91730 Riverside, CA 92501 Attn: Sagar Pandey 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 108 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 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 109 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. 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. 110 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. 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. 111 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 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” 112 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. 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 113 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. 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. 114 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] 115 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH S2 ENGINEERING INC. FOR CONSTRUCTION MANAGEMENT SERVICES, MATERIALS TESTING AND CONSTRUCTION SURVEYING SERVICES FOR THE LA SIERRA STATION PARKING LOT EXPANSION IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY S2 ENGINEERING, INC. TRANSPORTATION COMMISSION By: _________________________ By: ____________________________ Signature John F. Tavaglione 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 116 SCOPE OF WORK Construction Management Services, Materials Testing, and Construction Surveying For the La Sierra Station Parking Lot Expansion Project 117 SCOPE OF WORK The Riverside County Transportation Commission (Commission) is seeking proposals from qualified professional engineering firms to provide Construction Management, Materials Testing, and Construction Surveying Services for construction of the La Sierra Metrolink Station Parking Lot Expansion Project. The proposed Project will double the size of the existing parking lot as shown in Figures 1, 2 & 3 (Regional Location, Project Location Map & Conceptual Site Plan). The Project will add approximately 500 parking spaces, 6 bus bays, modify the existing traffic signal at the Indiana Ave/La Sierra Avenue intersection, add a new signalized access/driveway onto Indiana Avenue, and construct a storage building (wood framed) on an approximately 4.69 acre site. Additional work/features include: • Utility relocations; • Site grading; • Storm drain facilities; • Hot Mixed Asphalt concrete (HMA) and Portland cement concrete (PCC) pavement • Curb and gutter; • Pavement stenciling, striping and signage • Concrete planter curbs; • Landscaping and landscape irrigation; • Wrought iron fencing; • Lighting, CCTV, and communications systems • Information kiosk; and, • Restroom facilities for use by RTA and site security personnel. Construction Schedule (Tentative) The anticipated construction schedule for the Project is shown below: Start Construction January 2017 Project Duration 160 Working Days Construction Cost (Tentative) The anticipated cost of the work is $2 Million Performance Requirements Construction Management: Offeror shall furnish a Project Manager/Resident Engineer to coordinate Offeror operations with Commission. The Project Manager shall be responsible for all matters related to Offeror’s personnel and operations. A Resident Engineer shall be assigned as a single point of contact to direct and coordinate construction activities under this agreement. Other Assistant Resident Engineers may be assigned to specific project responsibilities as needed. The Resident Engineer shall be a Civil Engineer, registered in the State of California, and shall be in responsible charge of construction activity within the Project. 118 The number of Offeror personnel assigned to the Project will vary throughout the duration of the agreement. Offeror personnel will be assigned, in varying levels of responsibility, as needed by the Offeror to meet the Project schedule and comply with Project requirements. Resumes of personnel shall be submitted to the Commission for review and approval prior to assignment to the Project. The Commission and Offeror will jointly determine the quality and quantity of services that are required by Offeror personnel. Personnel selected for assignment by Offeror shall be made available for personal interviews prior to acceptance by the Commission. If, in the opinion of Commission, an individual lacks adequate experience, the individual may be rejected or may be accepted on a trial basis until such time the individual's ability to perform the required services has been demonstrated. If, at any time, the performance of Offeror personnel is unsatisfactory to the Commission, the Commission may release him/her by written notice and may request another qualified person be assigned. If Offeror personnel are on leave of absence, the Project Manager shall provide approved, equally qualified replacement personnel until the assigned personnel returns to the Project. The typical workday includes all hours worked by the construction Contractor. If necessary, overtime for Offeror personnel may be required. The construction Contractor's operations may be restricted to specific hours during the week, which shall become the normal workday for Offeror personnel. The Project Manager, with concurrence from the Commission, shall have the authority to increase, decrease, or eliminate Offeror personnel work hours dependent on the schedule and requirements of the construction Contractor. All overtime required by Offeror personnel shall be approved and authorized by the Commission prior to each occurrence. Offeror personnel shall be knowledgeable of and comply with all applicable local, state, and federal regulations. Offeror personnel shall cooperate and consult with the Commission and city officials during the course of the Project. Offeror personnel shall perform duties as may be required to assure that construction is being performed in accordance with the Project plans and specifications. Offeror personnel shall keep accurate and timely records and document all work performed by the Contractor and Offeror. Offeror shall monitor for Contractor’s compliance with the labor standards provisions of the projects and the related wage determination decisions of the Secretary of Labor. Offeror personnel shall assist the Commission and local agencies in obtaining compliance with the safety and accident prevention provisions of the projects. Local agencies will retain jurisdictional control for traffic control. 119 All services required hereunder shall be performed in accordance with California Department of Transportation guidelines, regulations, policies, procedures, manuals, and standards, except as noted in the special provisions. Materials Testing: The number of field testing personnel assigned to the Project will vary throughout the duration of the construction Contract. Offeror personnel will be assigned as needed by the Resident Engineer to meet the schedule of the construction Contractor. The Resident Engineer shall coordinate materials testing and inspection with the Contractor to avoid delay. The Commission intends to maintain a consistency of material testing quality throughout each phase of each Project. Offeror is therefore encouraged to provide, where ever and whenever possible, the same field personnel for the duration of construction of the Project. Resumes of materials testing personnel shall be submitted to the Commission for review and approval prior to assignment to the Project. If, at any time, the level of performance of any testing personnel is below expectations, Commission may release that field person and request that another be assigned as needed. If a member of Offeror's personnel is on a leave of absence, Offeror's Project Manager will provide an equally qualified replacement employee until the original member returns to work. The replacement employee will meet all the requirements of a permanently assigned employee. All personnel shall be knowledgeable of, and comply with, all applicable local, Caltrans, and federal regulations; cooperate and consult with the Commission and local agency officials during the course of the agreement; and perform other duties as may be required to assure that the construction is being performed in accordance with the Project plans and specifications. Offeror’s personnel will keep records and document the work as directed by the Resident Engineer. Offeror personnel shall assist the Commission and local agencies in obtaining compliance with the safety and accident prevention provisions of the Project. Local agencies will retain jurisdictional control for traffic control. All services required hereunder will be performed in accordance with Caltrans regulations, policies, procedures, manuals, and standards. Construction Surveying: Offeror will furnish a surveying crew to perform construction surveys and final monumentation for the Project. The same survey crew will provide services throughout the duration of the construction contract. Offeror personnel will be assigned as needed by the Resident Engineer to meet the schedule of the construction contractor. 120 It is the intent of the Commission to maintain a consistency of construction survey quality throughout each phase of each project. Therefore, Offeror is encouraged to provide the same field personnel for the duration of construction. It is important that the Field Party Chief(s) assigned to a project be completely familiar with the survey requirements and the assignments for the Project. Resumes of Offeror personnel and certification must be submitted to the Commission for review. Offeror personnel must be approved by the Commission prior to assignment to a project. The Commission and Offeror will have the responsibility of determining the quality and quantity of work performed by Offeror personnel. If, at any time, the level of performance by Offeror personnel is below expectations, Commission may release the survey crew member and request that another be assigned. If Offeror’s survey crew personnel assigned to the Project is on a leave of absence, the Project Manager will provide an equally qualified replacement(s) until the original employee(s) returns to work. The replacement will be required to meet all the requirements of the permanently assigned employee. Offeror personnel will: • Be knowledgeable with and comply with applicable building codes and local, Caltrans, state, and federal regulations; • Cooperate and consult with Commission officials during the course of the agreement; • Perform duties as may be required to assure construction is performed in accordance with the Project plans and specifications; and • Keep records and document work as directed by the Resident Engineer. All services required hereunder will be performed in accordance with Caltrans regulations, policies, procedures, manuals, and standards except as directed otherwise by the Commission. Duties and Responsibilities 1. Pre-construction Services a. Plan Review Offeror shall review construction contract documents prior to construction. Tasks include review of plans, specifications, technical reports, Resident Engineer’s pending files, liaison with the city of Riverside (including Building Permit requirements), utility arrangements, operational arrangements with BNSF and/or RTA (as needed), and existing station operations in order to verify completeness and consistency of documents throughout the Project. At minimum, Offeror shall check for quantity discrepancies, potential conflicts, constructability, and consistency between plans, specifications and pay items. 121 b. Schedule Offeror shall review the proposed Project schedule, compare it to the Project plans and specifications, and provide recommendations to the Commission, as appropriate, to ensure efficiency of Contractor and Offeror operations and safe and expeditious completion of the Project. c. Budget Offeror shall review the Project estimate and provide recommendations to the Commission, as appropriate, to ensure efficient utilization of funds and control of project costs. 2. Bid Process a. Bid Documents Offeror shall assist the Commission, as requested, with the following tasks: 1) Review bid questions and draft responses; 2) Draft addenda to the bid documents; 3) Review of bidder’s documents; and 4) Prepare bid tabulation. b. Pre-construction Meetings Offeror shall assist the Commission in conducting one (1) or more, pre-construction meetings with all involved parties on the Project. Parties may include, but are not limited to, the Contractor, the Design Engineer, Caltrans, city of Riverside, and utility companies. c. Contract Award Offeror shall assist the Commission, as requested, with the following tasks: 1) Review bid for completeness and responsiveness. 2) Perform bid analysis. 3) Develop Contractor payment schedules, and other procedural items. 4) Check Contractor references, licenses, insurance, and sureties. 5) Coordinate with prospective Contractor for award of construction contract(s). All processes will be consistent with procedures outlined by the California Department of Transportation for Special Funded Programs and/or relevant COMMISSION procedures. 3. Project Administration 122 a. Offeror shall administer Project construction contract using Caltrans Construction Manual as a guideline. b. Offeror shall conduct regular Project coordination meetings with Contractor, Commission, local agencies, and Design Engineer, as appropriate. c. Offeror shall review and approve the Contractor’s Baseline Schedule and subsequent Updates and track weather or unsuitable site conditions on a weekly basis. Offeror shall prepare Contractor progress payments and maintain payment records and supporting documentation. All progress payments shall be reviewed by the Commission for approval. d. Offeror shall establish and maintain Project records. Project record keeping shall include, but are not limited to the following: correspondence, memoranda, contract documents, change orders, claims, Commission and engineer directives, meeting minutes, shop drawings, materials records, survey data, supplemental drawings, progress payments and requirements listed elsewhere. Offeror shall maintain a record of the names, addresses, and telephone and fax numbers of the Contractor, subcontractors, and principal material suppliers. e. Offeror shall establish and maintain a filing system for each Project using the Caltrans Construction Manual as a guideline. f. Offeror shall monitor Contractors’ construction schedules on an ongoing basis and alert the Commission to conditions that may lead to delays in completion of the Project. g. Offeror shall prepare and submit a Monthly Project Report (MPR). The MPR shall include construction activity, accomplishments, safety and traffic issues, and status of Requests for Information (RFIs), submittals, current issues, Contract Change Orders (CCOs) and current Project budget and schedule. The format and contents of the MPR will be determined by RCTC. Provision of an MPR acceptable to the Commission will be a condition precedent for payment of the CM’s invoices. h. Offeror shall review and ensure compliance with environmental requirements. i. Offeror shall ensure that the Project meets all provisions of the Caltrans Quality Assurance Program Manual. j. Offeror shall conduct labor interviews and review Contractors’ certified payroll records/fringe benefit statements, etc and maintain records to assist the Commission with labor compliance. 123 k. Offeror shall ensure that the Project meets all provisions of an approved Storm Water Pollution Prevention Plan (SWPPP) and coordinate with the State Water board by providing data to their SMARTS system. l. Offeror shall assure that the Project meets all applicable regulations of the Air Quality Management District (AQMD). 4. Construction Coordination a. Offeror shall provide a qualified Resident Engineer and other qualified assistant Resident Engineers, as needed to effectively manage the Project. b. Offeror Resident Engineer shall act as a single point of contact between Contractor, the Commission, Offeror’s construction surveyor, Offeror’s materials inspector, and utility companies. Offeror may, when requested by the Commission, act as point of contact between Design Engineers, Caltrans, city of Riverside, utilities, and the public. c. Offeror shall maintain regular contact with the Commission’s Construction Manager. d. Offeror shall review Project plans and special provisions for possible errors and deficiencies prior to construction of any specific element and report such findings to Commission. Should the Commission determine that changes are necessary, Offeror shall prepare Contract Change Orders (CCOs) and supporting transmittal memoranda in accordance with construction contract documents and Commission procedures. e. Offeror shall monitor, coordinate, and track construction progress to ensure the Project proceeds on schedule and according to the order of work required in the plans and special provisions. Offeror shall direct the Contractor, in conjunction with Commission, to expedite work, as required, to maintain schedule. f. Offeror shall coordinate review of shop drawings and Requests for Information (RFI) with the Construction Manager. Offeror shall log and track all submittals and RFIs. g. Offeror shall provide a qualified SWPPP coordinator who shall review Contractor-prepared Storm Water Pollution Prevention Plans (SWPPP) and coordinate approval with the city of Riverside and the Commission. Offeror shall cooperate with Caltrans and/or monitoring agencies during inspections and field reviews. h. Offeror shall coordinate the implementation of any changes with the Construction Manager and the Design Engineer. i. Offeror shall review and approve Traffic Control Plans and forward to 124 Commission as necessary. j. Offeror shall coordinate all Project construction activities with other on-going projects within and adjacent to the Project limits. k. Offeror shall coordinate all Project construction activities with existing La Sierra Station operations. 5. Construction Inspection a. Offeror shall coordinate all required inspections necessary for the Project. Offeror shall ensure that appropriate city and local agency are notified and present as required throughout the Project. Offeror hall notify the Commission immediately regarding any directives, recommendations, notices, etc. received from agencies other than Commission. b. Offeror shall perform and document daily on-site inspections of the progress and quality of construction to determine if the work being performed is in general conformance with the contract documents, all applicable laws, codes, and ordinances. c. Offeror shall exercise reasonable care and diligence to discover and promptly replace, correct, and/or mitigate all defects or deficiencies in the materials or workmanship used in the Project. Any such deficiencies and their resolution shall be reported to the Commission. d. Offeror personnel assigned to the Project shall be thoroughly familiar with Caltrans Special Provisions, Standard Specifications and Caltrans Standard Plans as they apply to this Project. Offeror shall be thoroughly familiar with the plans and technical provisions provided by the project’s designer as well as the Commission’s General Conditions. Offeror personnel shall have the ability to read and interpret construction plans and specifications. Offeror personnel shall also have knowledge of State of California Construction Safety Orders (CalOSHA) and traffic control practices as specified in the Work Area Traffic Control Handbook (WATCH). In addition, Offeror personnel shall be familiar with the construction requirements of the Caltrans Storm Water Pollution Prevention Program. e. Assignments to be performed by Offeror personnel shall include, but are not limited to, the following: 1) Inspection of dry and wet utilities, inspection and testing of subgrade, aggregate base and paving, inspection of signage, pavement markings , and traffic striping, inspection of building foundation and wood frame building construction, inspection of retaining wall construction, landscaping and landscape irrigation, signals, electrical and systems installation and related construction activities. Work shall include checking grade and alignment, construction traffic 125 control, and any other duties that may be required to determine that construction of the Project is being performed in accordance with the contract documents; 2) Identifying actual and potential problems associated with the Project and recommending sound engineering solutions; 3) Maintaining awareness of safety and health requirements. Monitoring Contractors’ compliance with applicable regulations and construction contract provisions for the protection of the public and Project personnel; 4) Preparing complete and accurate daily reports, engineering calculations, Project records, payment quantity documents, reports, and correspondence related to Project activities. Documents shall be sufficient to provide actual cost of force account work (time and materials payment); 5) Preparing construction sketches, drawings, and cross-sections, as necessary; 6) Keep contemporaneous records of all additions or deviations from the approved plans for preparation of as-built plans; 7) Providing inspections for environmental compliance; 8) Arranging for lane closures in accordance with city of Riverside’s procedures and coordinate any work with the California Highway Patrol and/or city of Riverside Public Works Department; 9) Maintaining awareness of water discharge requirements. Monitoring Contractors’ compliance with applicable regulations and construction contract provisions; 10) Monitoring Contractors’ compliance with applicable regulations required by AQMD; and 11) Other duties as may be required or reasonably requested. 6. Project Support a. Construction Surveys Offeror shall perform construction surveying services, field calculations, and home office calculations to support construction of the Project. Offeror may be requested to review available survey data, construction plans, and right-of-way plans to confirm compatibility and to identify discrepancies prior to and during construction. The Resident Engineer shall review survey requests from the Contractor and arrange for the work, as appropriate. Requests may include, but not be limited to, the following types of surveys and related services: 1) Construction Surveys Offeror shall assist the Resident Engineer in all phases of construction staking and calculations as needed. Survey calculations and adjustments shall be performed with established and computed coordinates based on the California Coordinate System. 126 Cross-section data collection shall be performed by conventional and terrain line interpolation survey methods. Survey data will include topography, cross-section, and other survey data in computer formats compatible with the Caltrans computer survey and design systems. Prepare and maintain survey documents. Survey documents include survey field notes, maps, drawings, and other survey documents. Perform construction staking, including (where required) but not limited to: • Utility locations (new and as-built); • Clearing limits; • Slope staking; • Rough grade; • Finish grade; • Building layout; • Storm drain, sanitary sewer, and irrigation systems; and • Curbs, gutters, and sidewalk. Monitor for settlement, if required. Global Positioning Satellite (GPS) equipment shall be utilized if required by the Commission. 2) Right of Way Lines Existing right of way will be established from Commission record information and existing monumentation. • Perpetuate existing monumentation. Includes restoring, renewing, referencing, and resetting existing boundary related monumentation and bench marks. In addition, stake areas where construction disturbs the existing right of way, preparing and filing required maps and records. • Final monumentation. Includes setting of centerline points of control upon completion of construction and documenting control bench marks. 3) Special Design – Data Surveys Includes drainage, utility, and surveys that might be required for special field studies. b. Materials Testing and Geotechnical Services 127 Offeror shall provide experienced personnel, equipment, and facilities to perform various construction materials sampling and testing. Laboratory and field materials testing shall be used to ensure that construction work conforms to the applicable city of Riverside or Caltrans standards, specifications, and the Design Engineer’s technical provisions for material quality and workmanship. All field and laboratory testing shall be performed in accordance with California Test Methods or test methods specified by the Design Engineer in the technical provisions of the Contract. Offeror shall be responsible for the accuracy and completeness of all test data compilation and results. All material test results shall be provided in accordance with the applicable Standard Specifications and Special Provisions, and California Test methods or procedures set forth by the Design Engineer or the city of Riverside. Failing tests will be immediately reported internally to the Resident Engineer. All test results will be recorded on the appropriate forms. The test documents will be legible and show the identity of the tester where appropriate. A summary sheet containing all results of a particular regime of tests shall be developed and kept current. All test results and inspection reports shall be available to the Commission during construction and proved at the conclusion of construction. c. Permits Offeror shall review the Project for permit compliance and coordinate with Commission and the Design Engineer to ensure that necessary permits are obtained. Offeror shall assist Commission in the coordination, timely processing and verification of approval for all permits. Offeror shall maintain permits and permit documentation on site. 7. Cost and Schedule a. Offeror shall monitor and track the following: 1) Contract pay item quantities and payments; 2) Contract Change Orders; 3) Supplemental work items; 4) Agency and/or State furnished materials; 5) Materials-on-hand but not installed; 6) Anticipated extra work balance; 7) Contingency balance; and 8) Project budget. b. Offeror shall review and monitor Contractor’s schedule and inform Commission of any significant changes or deviations in the schedule. 128 c. Offeror shall provide and maintain a Project staffing plan of field office personnel. In cooperation with Commission, the staffing plan shall be periodically updated to reflect Project progress and needs. 8. Contract Change Orders and Claims a. Offeror shall receive and evaluate requests for changes and/or substitutions by the Contractor. Offeror shall coordinate proposed changes with the Commission’s Construction Manager and shall prepare and submit Contract Change Orders to the Commission for approval accompanied by Offeror’s Transmittal Memo describing background information, reasons for the change and proposed method of payment and/or adjustment of contract time. b. Offeror shall attempt to avoid all unnecessary Contract Change Orders. When a Contract Change Order is necessary, Offeror shall consult with the Commission prior to its preparation. Unless directed otherwise by Commission, the preferred method of payment for Contract Change Orders should be as follows: 1) Agreed Price; 2) Adjustment in compensation to a bid item; and 3) Time and materials or Force Account. c. Offeror shall identify and preemptively attempt to resolve all potential claims, track and monitor unresolved claims, and implement a claims avoidance process. d. Offeror shall assist Commission, as requested, in the identification, resolution, and final disposition of claims filed by the Contractor or third parties against Commission or the Project. 9. Safety In addition to the requirements specified elsewhere in this contract, the following shall also apply: a. Offeror shall implement and conduct a comprehensive safety program including regular tail-gate safety meetings for Offeror’s personnel; b. Offeror shall prepare an Illness and Injury Protection Plan; c. Offeror shall provide monthly safety status reports; d. Offeror shall comply with State of California Construction Safety Orders and provisions of the Caltrans Construction Manual as appropriate; 129 e. Offeror shall provide appropriate safety training for all Offeror field personnel; and f. Offeror shall provide all necessary safety equipment as required for Offeror personnel. 10. Project Close Out a. Offeror shall conduct a final walk-through with the Commission and Design Engineers. b. Offeror shall prepare a list of items to be completed and/or corrected by the Contractor [Punch List] for final completion of the Project. c Offeror shall review and verify completeness of as-built drawings. d. Offeror shall prepare final construction reports including the Project Completion Report. e Offeror shall prepare and deliver to the Commission all Project files in accordance with Commission’s and Caltrans policies. f. Offeror shall assist the Commission and Contractor in obtaining final release of all Project permits. DELIVERABLES a. Offeror ’s Illness and Injury Prevention Plan as described in the CalOSHA Construction Safety Orders. b. Correspondence to/from Contractor, Resident Engineers’ daily reports, Assistant Resident Engineers’ daily reports, and extra work diaries. c. Approved Project Baseline Schedule and Monthly Updates with analysis with Weekly Statements of Working Days. d. Monthly Project Reports. e. Listing of approved submittals with supporting information. f. RFI submittals and responses. g. Monthly Construction Contract progress payments, back-up documentation, and support information as requested. 130 h. Contractor final payment documents, delivered to Commission no later than ten (10) working days after acceptance by Commission of the completed construction Projects. i. Project Completion Report. j. All Project files, Project reports, correspondence, memoranda, shop drawings, Project logs, change order data, claims and claim reports, and Contractor payment records. k. Certified payrolls and fringe benefit statements for all employees, Offeror and Contractor, who are subject to the State and/or Federal prevailing wage rates. l. All materials test results and field testing and/or testing reports. Include reports required by the city’s building officials. m. Unless otherwise specified in the survey request, the deliverables shall conform to the following: 1) Survey points, lines, and monuments shall be established, marked, identified, and referenced as required by survey request and requirements herein; and 2) Survey notes, drawings, calculations, and other survey documents and information shall be completed as required by the survey request and the requirements herein. n. All original survey documents resulting from this agreement, including original field notes, adjustment calculations, final results, and appropriate intermediate documents, shall be delivered to the Resident Engineer and shall become the property of the Commission. A copy of all survey documents furnished by Commission shall be retained by Offeror for future reference. When the survey is performed with a total station survey system, the original field notes shall be a hard copy in a readable format of the data (observations) as originally collected and submitted by the survey party. The hard copy shall be signed by the Party Chief. If the Party Chief is not licensed, the person in “responsible charge” will be required to sign. o. Deliverables to the Resident Engineer shall follow the format specified below: • Horizontal Control; • Alpha numeric hard copy point listing with adjusted California Coordinate System northing and eastings and the appropriate descriptions; 131 • Vertical Control; • Alpha numeric hard copy benchmark listing with adjusted elevations compatible with the design datum; • Topography; and • Alpha-numeric hard copy listing, hard copy drawing, and computer aided drawing and design (CADD) digital drawing. The CADD drawing shall be compatible with the systems utilized by Caltrans. Data collection method used to collect cross-section data and the coding (feature description) of terrain data for cross-sections shall conform to the survey request requirements. Deliverables shall depend on the data collection method as follows: • Conventional Cross – Sections (each cross – section): For each cross - section and alpha numeric listing, a hard copy drawing, and a computer formatted file compatible with the systems utilized by Caltrans. • Terrain Line Interpolation Cross – Section Data (each terrain line interpolation survey): Terrain line interpolation cross – sections shall include an alpha numeric listing, a hard copy plan view drawing of the terrain lines, and a computer input file. The computer input file shall be provided in a format compatible with the systems utilized by Caltrans. p. Data Collector Data If specified in the survey request, the raw data from the data collector shall be provided in a format conforming to the survey request requirements. q. Other As specified in the survey request. Equipment and Materials to be provided by Offeror 1) Offeror will provide office space, telephones, desks, chairs, computers, and appropriate office equipment. One (1) office with a desk, chair, telephone, and computer will be reserved for the Commission. 2) Offeror shall provide all necessary equipment including software, materials, supplies, miscellaneous tools, and safety equipment required for its personnel to perform the services accurately, efficiently, and safely. Only those items listed in Attachment B, Offeror Cost Proposal, shall be reimbursed by the Commission. Offeror personnel shall be provided with a mobile radio, cellular phone, or 132 other means to assure full-time communication. If a radio system is to be used, Offeror shall provide a base station at the field office. 3) Offeror personnel shall be provided with all applicable standard plans, specifications, and other standards as appropriate (see item G below). 4) For Materials Testing, Offeror and its staff will be fully equipped at all times to perform the services required, including but not limited to the following: A laboratory in close proximity to the Project will be required. The type and location of the lab should be such that it can meet the needs of the Project in an efficient, time effective manner. The laboratory shall be fully staffed, equipped, and supplied to conduct all required soils, materials, and concrete breaking tests in a timely manner. Each vehicle shall be fully contained with all necessary equipment and supplies necessary to perform the field sampling and tests required. Field personnel shall be provided with all necessary safety equipment to permit work to be performed safely and efficiently within operating highway and construction zone environments. All laboratory and testing equipment shall be calibrated per Section 3-10 and 3-11 of Caltrans’ Quality Assurance Program Manual. 5) For construction surveying, Offeror and staff shall have adequate equipment and supplies to complete the required survey work. Equipment and supplies shall, include, but not be limited to: a. Survey vehicles Survey vehicles will be suitable to perform the required work encountered on the project. Vehicles shall be fully equipped with all necessary tools, instruments, supplies, and safety equipment required to perform the work accurately, efficiently, and safely. Vehicles shall be equipped with a flashing yellow beacon light. b. Data Processing Systems Data processing systems shall include hardware and software to: • Performing survey and staking calculations from the design plans and specifications; • Reduce survey data collected with conventional and total station survey systems; • Perform network adjustments for horizontal and vertical control surveys; and 133 • Format survey data to be compatible with the Caltrans computer survey and data system. c. Drafting equipment and supplies. d. Digital calculators. e. Hand tools as appropriate for the requested survey work. f. Traffic cones (minimum 25). Traffic cones shall be 28 inches in height (minimum). g. Traffic control devices as required to perform the requested survey work. Traffic control devices include signs, sign bases, flags, and hand held signs. h. Leveling instruments and equipment: • Self-leveling level. Precision: standard deviation in one mile of double run leveling 0.005 feet or less; and • Suitable level rods for the work to be performed. i. Distance measuring instruments and equipment: • Electronic distance measurer (EDM). Precision: standard deviation 3 mm plus 3 PPM, or less; Range: Minimum one mile under average atmospheric conditions; • Prisms, sufficient to perform the required work; and • Tapes; steel, cloth. j. Angle measuring instruments and equipment: • Theodolite for non-control surveys; Precision: direct circle reading to three seconds, or equivalent, horizontal and vertical; and • Targets as required to perform the work. k. When required for efficient survey operations, total station survey systems consisting of an electronic angle measuring instrument, EDM, and electronic data collector shall be provided. The angle measuring instruments and EDM shall conform to the requirements for the equipment previously listed. l. Radio or cellular communications equipment for communication between field office and field crews. m. Caltrans manuals, standards, forms, and other policies and procedures to be followed to perform the required work. n. Lighting may be required for nighttime survey work. 134 Materials to be Furnished by Commission 1) The Commission will provide copies of all Project construction documents including plans, special provisions, reports, designer prepared Resident Engineer files, and contracts. 2) The Commission will provide copies of all previously secured permits and Project authorizations. 3) Appropriate forms for recording test data in accordance with Caltrans practices and procedures outlined in the “Manual of Test”. Standards All construction inspection, surveys, materials sampling and testing, and contract administration shall be in accordance with the Project bid documents, special provisions, plans, and current Caltrans Manuals including: 1) Construction Manual and its revisions; 2) Quality Assurance Program Manual; 3) Manual of Traffic Controls for Construction and Maintenance Work Zones; 4) City of Riverside Standards and latest edition of the California Uniform Building Code; 5) Caltrans Standard Specifications and Standard Plans; 6) Caltrans Storm Water Pollution Prevention Plan (SWPPP) and Water Pollution Control Program (WPCP) Preparation Manual; 7) Manual of Test (3 volumes); and 8) Survey Manual supplemented by the Caltrans District 8 Standard Staking Procedures Manual for roadwork. Work not covered by the manuals shall be performed in accordance with accepted professional standards. Surveys performed by Offeror shall conform to the requirements of the Land Surveyor’s Act. In accordance with the Land Surveyor’s Act, “responsible charge” for the work shall reside with the Licensed Land Surveyor or a pre-January 1, 1982, Registered Professional Civil Engineer in the State of California. Unless otherwise specified in the survey request, control surveys shall conform to second order (modified) accuracy standards as specified in the Caltrans “Survey Manual”. Additional standards for specific survey work may be included in the applicable request for survey. Such standards supplement the standards specified herein. If additional standards conflict with the standards specified herein, the “Survey Request’s” standard shall govern. 135 The Commission will decide all questions which may arise as to the quality or acceptability of deliverables furnished and work performed for this agreement. Any Offeror employee who does not perform adequately will be replaced if directed by the Commission Construction Manager. Availability and Work Hours The typical workday includes all hours worked by the Commission’s construction Contractor. The construction Contractor’s operations may be restricted to specific hours during the week, which will become the normal workday for Offeror’s personnel. Unless otherwise directed by Commission, the normal work week will consist of 40 hours. From time to time, overtime may be required. However, overtime will be worked only when approved in writing by Commission. Limitations to Authority Offeror does not have the authority to: 1) Authorize deviations from the Contract documents; 2) Approve substitute materials or equipment; except as authorized in writing by Commission; 3) Conduct or participate in tests or third party inspections; except as authorized in writing by Commission; 4) Assume any of the responsibilities of the Contractors, Contractors’ Superintendent, or subcontractors; 5) Exercise control over or be responsible for construction means, methods, techniques, sequences, procedures, or safety precautions; 6) Communicate directly with subcontractors or material suppliers without the prior consent of the Contractor; 7) Verbally authorize or approve change orders or extra work for the Project; and 8) Offer or receive incentives, inducements, or other forms of enumeration to or from the Contractor to perform services or work outside the terms of any executed contracts for this Project. Third Party Relationships This Agreement is intended to provide unique services for a specific project. In the development of the Project, Commission has worked closely with city of Riverside and others in the preparation of the construction documents and other Project related materials. The Commission, however, is solely responsible for and will be the sole point of contact for all contractual matters related to the Project. Offeror shall take direction only from the Commission and shall regularly inform only Commission of Project progress, outstanding issues, and all Project related matters. 136 During the course of the Project, Offeror may find occasion to meet with city representatives, the Design Engineer, Project Offerors, or other third parties who have assisted with the Project. These entities may, from time to time, offer suggestions and/or recommendations regarding the Project or elements of the Project. While the Commission enjoys a close relationship with and has considerable confidence in the capabilities of these other parties, Offeror shall not act on any suggestions, solicited or unsolicited, without obtaining specific direction from the Commission. All oral and written communication with outside agencies or Offerors related to the Project shall be directed only to the Commission. Distribution of Project related communication and information shall be at the sole discretion of Commission representatives. Construction Site Safety In addition to the requirements specified elsewhere in this agreement, the following also will apply: 1) Offeror will conform to the safety provisions of the Caltrans Construction Manual; 2) Offeror’s field personnel will wear white hard hats with proper suspension, orange vests with reflective tape, sleeved shirt, long pants, and leather boots with ankle support and rubber soles with steel toe protection at all times while working in the field; 3) Offeror will provide appropriate safety training for all Offeror’s personnel including rail safety for BNSF or Metrolink, as appropriate; and 4) All safety equipment will be provided by Offeror. Basis for Survey and Monument Staking Survey shall be based upon existing horizontal and vertical control and existing pavement elevations. Monuments established by Offeror shall be marked by Offeror with furnished disks, plugs, tags. In addition, Offeror shall identify Offeror established monuments by tagging or stamping the monuments with the license or registration number of Offeror’s surveyor who is in “responsible charge” of the work. Personnel Qualifications and Responsibilities The quantity and qualifications of field personnel to be assigned will be determined by the scope of the Project and the degree of difficulty of required tasks to be performed. All personnel and personnel assignments shall be subject to approval by the Commission. 137 AGENDA ITEM 6G Agenda Item 6G RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: January 11, 2017 TO: Riverside County Transportation Commission FROM: Sheldon Peterson, Rail Manager Brenda Ramirez, Management Analyst THROUGH: Anne Mayer, Executive Director SUBJECT: Subrecipient Agreement for Riverside Transit Agency for Perris Valley Line Shuttles STAFF RECOMMENDATION: This item is for the Commission to: 1)Approve Agreement No. 17-25-017-00 with the Riverside Transit Agency (RTA) for the Commission’s funding commitment related to the Perris Valley Line (PVL) shuttle services for a total amount not to exceed $6 million for a term of five years; 2)Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3)Authorize the Executive Director to approve and execute amendments to the agreement related to revised compensation amounts in subsequent years. BACKGROUND INFORMATION: At its September 14, 2016 meeting, the Commission approved a partnership with RTA to establish a new Riverside Downtown/PVL shuttle service and the use of federal revenues to pay for the operating expenditures related to the shuttle. The Commission also approved the use of previously committed federal Congestion Management Air Quality (CMAQ) funds that were established for PVL startup operations and connections, such as the RTA shuttle. The fiscal impact is $1,059,345 of CMAQ funds in FY 2016/17 to be used for PVL shuttle costs for the first year and a total amount not to exceed $6 million over the five-year term of the agreement. On June 3, 2016, RTA launched Routes 26, 52, and 54 into service: •Route 26 provides direct service from the Moreno Valley/March Field Station to Orangecrest and Moreno Valley Mall; •Route 52 provides service from the Riverside Hunter Park/UCR Station to the University of California at Riverside’s Village Towers, Plaza Apartments and Riverside Sports Center; and •Route 54 provides service from the Riverside Downtown Station to the County Administration Center. 138 Agenda Item 6G The pass-through of federal funds requires the Commission to enter into a subrecipient funding agreement to define the respective responsibilities of the Commission and RTA regarding the use of federal funds. The attached draft agreement is being reviewed by RTA and will require Board of Directors approval. Staff recommends the Commission approve the draft agreement with RTA related to the FY 2016/17 operating budget and allow RTA to be reimbursed for costs incurred by the launch of all RTA shuttle services back to the start of the fiscal year on July 1, 2016. Additionally, staff recommends the Commission authorize the Executive Director, pursuant to legal counsel review, to execute the final agreement and subsequent year amendments. A budget adjustment for the additional CMAQ revenues and related shuttle costs is included in a related agenda item at this Commission meeting, as denoted by (*) in the Financial Information box. Financial Information In Fiscal Year Budget: Yes* Year: FY 2016/17 FY 2017/18 + Amount: FY 16/17 $1,059,345* FY 17/18+ $4,940,655 Source of Funds: CMAQ (Congestion Mitigation Air Quality) Budget Adjustment: No* GL/Project Accounting No.: 034198 414 41403 103 25 41401 $ 1,059,345 (revenues)* 034198 86101 103 25 86101 $1,059,345 (expenditures)* Fiscal Procedures Approved: Date: 12/19/2016 Attachment: Draft Agreement No. 17-25-017-00 139 CMAQ Subrecipient Agreement 1 17336.00600\29409308.2 Agreement No. 17-25-017-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION CMAQ SUBRECIPIENT AGREEMENT FOR RIVERSIDE TRANSIT AGENCY 1. Parties and Date. This Agreement is made and entered into as of June 1, 2016, by and between the Riverside County Transportation Commission, hereinafter referred to as "RCTC" and the Riverside Transit Agency, hereinafter referred to as "Subrecipient" or “RTA”. 2. Recitals. 2.1 RCTC desires to designate RTA as a subrecipient of federal Congestion Mitigation Air Quality (“CMAQ”) funds received by RCTC for specific transportation projects, including the Metrolink 91/Perris Valley Line. 2.2 Subrecipient desires to accept such designation, and proposes to provide bus transportation services to support use of and provide transit connectivitey with the Metrolink 91/Perris Valley Line, as further described in Exhibit “A” (the “Project”). 2.3 Funding for the Project shall be provided to Subrecipient pursuant to the terms contained in this Agreement in the form of CMAQ funds, as further specified herein, and in the amounts set forth in Exhibit “A”. 2.4 The CMAQ funds were provided to RCTC through the Federal Transit Administration (“FTA”), and FTA rules and regulations govern the use of the funds. 2.5 Subrecipient shall utilize the funding provided by RCTC under this Agreement for the Project, and for no other purpose. 3. Terms. 3.1 Use of Funds and Total Funding Allocation; Term of Agreement. A. Definitions. 1. Subrecipient – Shall refer to RTA. 3. Project – The transportation services to be provided by Subrecipient as described herein and in Exhibit "A". 4. Effective Date – The date first set forth above. 140 CMAQ Subrecipient Agreement 2 17336.00600\29409308.2 5. Days - As used in this Agreement, “days" shall be calendar days. B. General Scope of Grant. Subrecipient shall use the funds provided pursuant to this Agreement exclusively to implement, staff, manage, and operate the Project in accordance with the terms of this Agreement and the attached Exhibit “A”. Subrecipient shall be solely responsible for implementing, staffing, managing and operating the Project in the manner described herein. The funds provided pursuant to this Agreement are specifically for the Project and make up the entire amount which RCTC has allocated 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 Subrecipient, unless such amendments or additional services are approved in writing by RCTC prior to the provision of such amendments or additional services. C. Total Funding Amount. The total funding amount for the Project shall not exceed Five Million, Eight Hundred Fifty Three Thousand, Five Hundred Fifty Two Dollars ($5,853,552). Funding shall be provided for the Project as detailed in Exhibit “A”. No changes shall be made to the total funding amount unless authorized in a written amendment to this Agreement. D. Grant Requirements. Subrecipient understands and expressly agrees to comply with all applicable grant requirements and programmatic agreements related to the funding provided under this Agreement, including the FTA Master Agreement, the terms of which are incorporated herein by reference. Subrecipient shall also ensure compliance will all applicable federal, state, and local laws, regulations, executive orders and ordinances applicable to the use of CMAQ funding on the Project. Subrecipient shall keep informed of all updates to applicable laws, regulations and ordinances. Subrecipient shall indemnify, pursuant to the provisions of this Agreement, RCTC for any breach of the obligations under this provision. E. Approval by RCTC; Responsibility of Subrecipient for Project Compliance with Federal Rules and Regulations. Any use of funds granted 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 funds, Subrecipient shall be responsible and liable for compliance with all federal rules and regulations applicable to the funds. Approval by RCTC of the Project does not evidence any opinion of or representation by RCTC of the Project’s compliance with applicable federal rules and regulations regarding the use of the funds. If the FTA determines that any funds were not spent in accordance with applicable federal rules and regulations, Subrecipient shall be responsible for reimbursement of all such improperly expended funds and shall make such reimbursement in the manner specified in this Agreement. 141 CMAQ Subrecipient Agreement 3 17336.00600\29409308.2 F. Funding Reimbursement. Subrecipient shall be responsible for any violation(s) of applicable programmatic agreements, grant requirements, federal, state, and local laws, regulations, executive orders and ordinances applicable to the use of CMAQ funding on the Project, or any misuse of funds by a third party for which payments were made from funds received by Subrecipient under this Agreement. If it is determined pursuant to a Project audit that any funds granted pursuant to this Agreement have been improperly expended by Subrecipient or by a third party receiving funds from Subrecipient, Subrecipient shall, at the direction of RCTC, reimburse within thirty (30) days the full amount of such improperly expended funds, and shall pay any associated penalties and fees. G. Term. The term of this Agreement shall commence on June 1, 2016 and shall terminate on June 30, 2021, unless terminated at an earlier date as provided herein. H. Term Contingent on Funding. Notwithstanding the term as defined in subsection E above, the continuation of this Agreement into a second or subsequent year shall be contingent upon the appropriation of funds to the Project by RCTC. 3.2 Responsibilities of Subrecipient. A. Indemnification. Subrecipient shall defend, indemnify and hold RCTC, and its 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 Subrecipient or any of its agents, employees, volunteers, contractors or service providers arising out of or in connection with Subrecipient's performance of this Agreement, or the Project, including, without limitation, the payment of consequential damages and attorneys' fees. Further, Subrecipient shall defend, at its own expense, including the payment of attorneys' fees, RCTC and its officials, officers, employees, and agents in any legal action based upon such acts, omissions or willful misconduct. Subrecipient shall reimburse RCTC and its 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. Subrecipient shall implement the Project in a skillful and competent manner and in accordance with all applicable local, state, and federal laws, rules and regulations. Subrecipient shall be responsible to RCTC for any errors or omissions in its execution of this Agreement and the implementation of the Project. 2. Subrecipient shall meet or exceed the following performance standards for the Project. 142 CMAQ Subrecipient Agreement 4 17336.00600\29409308.2 a. Adhere to the timeline set forth in this Agreement or as subsequently directed by RCTC. b. Expend the funds specified herein entirely on the Project. c. Implement the Project in a manner consistent with Exhibit "A" and all provisions of this Agreement. d. Subrecipient shall provide Project reporting to Recipient in a manner consistent with and meeting the reporting requirements specified in Exhibit “B” of this Agreement, attached hereto and incorporated herein by reference. e. Comply with any requirements and restrictions imposed by the authorizing language in the FAST Act, MAP-21, SAFETEA-LU, the FTA, and/or RCTC on the use of the specified financial contributions provided for the Project. C. Insurance. Subrecipient shall obtain and require its subcontractors or sub-consultants to obtain insurance of the types and in the amounts described below and satisfactory to RCTC. 1. Commercial General Liability Insurance. Subrecipient shall maintain occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less than $2,000,000 per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two (2) times the occurrence limit. Such insurance shall be primary and non- contributory and shall: a. Name RCTC 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. b. Be primary with respect to any insurance or self- insurance programs covering RCTC and its directors, officials, officers, employees, agents, and consultants. c. Contain standard separation of insureds provisions. 2. Business Automobile Liability Insurance. If Subrecipient hires or owns any vehicle during the term of this Agreement, Subrecipient 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. If Subrecipient hires one or more employees during the term of this Agreement, Subrecipient shall maintain workers' 143 CMAQ Subrecipient Agreement 5 17336.00600\29409308.2 compensation insurance with statutory limits and employer's liability insurance with limits of not less than $1,000,000 per accident. 4. Certificates/Insurer Rating/Cancellation Notice. a. Subrecipient 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. Subrecipient 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. b. Subrecipient shall maintain such insurance during the entire term of this Agreement. c. Subrecipient shall place insurance with insurers having an A.M. Best Company rating of no less than A:VII (unless approved in writing by RCTC) and licensed to do business in California. d. Any deductibles or self-insured retentions must be declared to and approved by RCTC. If RCTC does not approve the deductibles or self- insured retentions as presented, Subrecipient shall guarantee that, at the option of RCTC, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects RCTC and its directors, officials, officers, employees and agents; or (2) Subrecipient shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative defense expenses. 4. RCTC Responsibilities Regarding Funds. 4.1 Disbursement of Funds. A. RCTC shall be responsibile for the administration of the CMAQ funds to be provided under this Agreement, and with timely information provided by Subrecipient in compliance reports, RCTC shall prepare and submit to the FTA and/or any applicable grantor agency all required periodic reports, milestone updates and final reports. B. RCTC shall create and manage the necessary Project records, reports and financial accounts to permit disbursement of allocated funds to Subrecipient for the performance of the Project. C. RCTC shall disburse funds monthly in arrears within thirty (30) days of Subrecipient’s submission and RCTC approval of required Monthly Project Invoice, in a form satisfactory to RCTC, and reporting as specified herein. 144 CMAQ Subrecipient Agreement 6 17336.00600\29409308.2 5. Accounting Records. 5.1. Retention of Records. Subrecipient shall establish fiscal controls and accounting procedures sufficient to assure proper accounting for all transactions, so that audits may be performed. Subrecipient shall use accounting and fiscal procedures conforming to generally accepted accounting principles (GAAP). Subrecipient shall maintain a complete set of accounting records in accordance with GAAP for RCTC subrecipient monitoring, FTA, and normal operations purposes. The original records shall be maintained within Subrecipient’s limits. Any indirect costs charged by Subrecipient or its contractors shall comply with applicable federal requirements. 5.2 Examination of Records. Subrecipient shall allow representatives of RCTC, the FTA, and other designated agencies during normal business hours to examine, audit, and make transcripts or copies of such records. Subrecipient 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 or until any on-going audit is completed whichever is longer, and shall allow inspection hereunder during such time. For purposes of audit, the date of completion of this Agreement shall be the date of RCTC’s payment of Subrecipient’s final billing (so noted on the invoice) under this Agreement. 5.4. Accounting of Funds by Subrecipient. When requested by RCTC, Subrecipient shall within ten (10) days provide RCTC with a full reporting and accounting of all funds received pursuant to this Agreement during its term. 6. Invoicing and Project Reports. 6.1 Monthly Invoicing: Within fifteen (15) working days following the close of each month during the term of this Agreement, Subrecipient shall prepare and submit to RCTC a monthly invoice containing all information and supporting documentatio required by RCTC, as detailed in Exhibit “B”. 6.2 Quarterly Reporting: Within ten (10) working days following the close of each quarter during the term of this Agreement, Subrecipient shall prepare and submit to RCTC a written report detailing the financial and operating performance of the Project, in accordance with all applicable requirements specified in Exhibit “B”, and any other requirements of FTA or RCTC. 6.3 Additional Reporting Requirements. In addition to any other provision herein, Subrecipient agrees to timely provide RCTC with all information necessary for RCTC to remain in compliance with all applicable programmatic agreements and/or grant requirements, including the Uniform Guidance, FTA requirements, and RCTC Subrecipient Guidelines, which requirements shall be available for review by Subrecipient upon request. 145 CMAQ Subrecipient Agreement 7 17336.00600\29409308.2 7. Annual Audit. 7.1. RCTC shall notify Subrecipient in writing if Subrecipient is required to conduct an annual financial audit of records pertaining to this Agreement or the Project. If an audit is required, it shall be completed and submitted to RCTC in a timely manner. 7.2. Subrecipient shall promptly resolve all audit matters to the satisfaction of RCTC. Subrecipient shall develop a corrective action plan for any findings or deficiencies within 60 days from the issuance of the review findings to address deficiencies or noncompliance issues. 7.3. If Subrecipient fails to comply with the requirements of this Agreement as it pertains to federal requirements as a subrecipient, to timely complete the audit, or to promptly resolve all audit matters to the satisfaction of RCTC, RCTC may impose additional conditions or take one or more of the following actions, as appropriate: i. Temporarily withhold cash payments; ii. Disallow all or part of cost of the activity that is not in compliance; iii. Wholly or partly suspend or terminate the federal award; iv. Recommend that the federal agency initiate suspension or debarment proceedings; or v. Exercise other remedies that may be legally available. 8. General Provisions. 8.1 Subrecipient Compliance with Federal Procurement and Other Federal Requirements. A. In addition to the terms specified herein, Subrecipient shall also achieve and maintain full compliance with all Federal contracting and procurement requirements applicable to the Project and Subrecipient’s organization. These requirements are incorporated by reference as though fully set forth herein. It is the responsibility of Subrecipient to be familiar with and to be in full compliance with all applicable federal requirements. B. In the event of any failure or alleged failure to comply with Federal contracting and procurement requirements on the part of Subrecipient, Subrecipient shall be solely responsible for any penalties, reimbursement of funds, costs of investigation and remedy of such failures. 8.2 Termination of Agreement. A. RCTC may, by written notice to Subrecipient, terminate the whole or any part of this Agreement at any time, with or without cause, by giving written notice to Subrecipient of such termination, and specifying the effective date thereof. Subrecipient may not terminate this Agreement except for cause. Upon receipt of notice of termination, 146 CMAQ Subrecipient Agreement 8 17336.00600\29409308.2 Subrecipient shall immediately cease expenditure of funds conveyed pursuant to this Agreement and promptly return all unexpended 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 Subrecipient to provide to RCTC all finished or unfinished documents, including but not exclusive to, data, studies, drawings, and reports, prepared by Subrecipient in connection with the performance of this Agreement. 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 RCTC: Riverside County Transportation Commission 4080 Lemon Street, Third Floor P. O. Box 12008 Riverside, California 92502-2208 Attn: Anne Mayer, Executive Director [INSERT E-MAIL ADDRESS] To Subrecipient: Riverside Transit Agency [INSERT ADDRESS] Attn: [INSERT NAME AND/OR 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 one or more of the parties commences an action against the other(s) arising out of or in connection with this Agreement, the prevailing party(ies) in such litigation shall be entitled to have and recover from the losing party(ies) 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, understandings or agreements. This Agreement may only be modified in writing and signed by all three parties. 147 CMAQ Subrecipient Agreement 9 17336.00600\29409308.2 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 Time of Essence. Time is of the essence for each and every provision of this Agreement. 8.8 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by any party hereunder without the prior written consent of RCTC. 8.9 Administration. A. RCTC's Executive Director, or his or her designee, shall administer this contract on behalf of RCTC. B. Subrecipient hereby designates _________________(Title), or his or her designee, to act as its representative to administer this contract on behalf of Subrecipient ("Subrecipient's Representative"). Subrecipient's Representative shall have full authority to represent and act on behalf of Subrecipient for all purposes under this contract. 9. Subcontracting. 9.1 Subrecipient shall not subcontract any portion of the work required by this Agreement without prior written approval of RCTC. 9.2 Subcontracts, if any, shall contain a provision making them subject to all applicable provisions stipulated in this Agreement. 10. 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. 11. Incorporation of Exhibits. This Agreement contains five (5) exhibits, Exhibits A through C, which are attached hereto and incorporated into this Agreement by reference. [Signatures on following page] 148 CMAQ Subrecipient Agreement 10 17336.00600\29409308.2 SIGNATURE PAGE TO CMAQ SUBRECIPIENT AGREEMENT IN WITNESS WHEREOF, the parties hereto have executed the Agreement on the Effective Date. RCTC: SUBRECIPIENT: RIVERSIDE COUNTY RIVERSIDE TRANSIT AGENCY TRANSPORTATION COMMISSION By: By: _________________________ John F. Tavaglione, Chair Title: ________________________ APPROVED AS TO FORM: APPROVED AS TO FORM: By:______________________________ By:__________________________ Best Best & Krieger LLP Counsel to the Riverside Title: ________________________ County Transportation Commission 149 CMAQ Subrecipient Agreement Exhibit “A” 17336.00600\29409308.2 EXHIBIT "A" Route Description and Hourly Cost: Project Description Rev Hrs./ Weekday Annual Rev Hrs. Cost/Revenue Hr. PVL New Route 26 (Contract operated) 30.62 7,869.34 $72.00 PVL New Route 52 (Contract operated) 14.47 3,718.79 $72.00 New PVL Route 54 (Contract operated) 12.16 3,125.00 $72.00 Annual Route Cost and Total Route Costs: Annual operating cost escalated at 5% Route FY17 FY18 FY19 FY20 FY21 Total 26 $566,592 $594,922 $624,668 $655,902 $688,697 $3,130,781 52 $267,753 $281,141 $295,198 $309,957 $325,455 $1,479,504 54 $225,000 $236,250 $248,063 $260,466 $273,489 $1,243,267 150 CMAQ Subrecipient Agreement Exhibit “B” 17336.00600\29409308.2 EXHIBIT "B" ADDITIONAL COMPLIANCE AND REPORTING REQUIREMENTS Subrecipient agrees to the following responsibilities for the Project 1.Comply with the requirements of 49 CFR, Part 26, et. seq., and all other FTA Disadvantaged Business Enterprise (DBE) rules, regulations and policies in carrying out this Agreement, and shall implement a stand-alone DBE Program that includes goal setting, outreach, monitoring, and reporting. Subrecipient shall create and maintain records of compliance with the DBE obligations in this Agreement, and provide compliance information to RCTC upon request. 2.Provide all information needed for quarterly project reporting and milestone updates to allow RCTC enough time to prepare and submit to the FTA on a timely basis all required or requested FTA reports and updates. In no event shall such reports be received later than ten (10) days prior to the required date of the quarterly submission to the FTA, which is 30 days following the end of each quarter. 3.Provide quarterly reports to RCTC that include updates on the Project, summarizing actual data versus budget, to assist in the measurement of performance metrics. 4.As applicable, prepare and submit all required reports to federal and state agencies in a timely manner by the due dates established by those agencies in order to avoid any penalties that could impair funding to RCTC. 5.Notify RCTC in writing within five (5) business days of the commencement of a federal or state agency review or audit, provide draft and final copies of the related reports within ten (10) business days of receipt from such agency, and provide copies of any Subrecipient responses to required corrective actions. Subrecipient shall update RCTC on the status of required actions on a quarterly basis until such corrective actions have been completed to the satisfaction of the federal or state agency. Failure of Subrecipient to abide by the conditions above may result in delay to payment schedule outlined in Responsibilities of RCTC. 151 AGENDA ITEM 6H Agenda Item 6H RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: January 11, 2017 TO: Riverside County Transportation Commission FROM: Sheldon Peterson, Rail Manager Brenda Ramirez, Management Analyst THROUGH: Anne Mayer, Executive Director SUBJECT: Fiscal Year 2016/17 Commuter Rail Short Range Transportation Plan and Budget Amendment STAFF RECOMMENDATION: This item is for the Commission to: 1)Approve an amendment of $20 million in federal Congestion Mitigation Air Quality (CMAQ) revenues to the Fiscal Year 2016/17 Commuter Rail Short Range Transit Plan (SRTP); and 2)Approve an increase to the FY 2016/17 budget of $4.7 million for CMAQ grant revenues and corresponding rail operations and shuttle service expenditures. BACKGROUND INFORMATION: On April 27, 2015, the Commission approved the programming of $20 million of federal CMAQ funds for operating assistance for the Perris Valley Line (PVL). Under MAP-21, agencies are allowed to use CMAQ for operating assistance for startup operating costs for new transportation services, such as PVL for the first five years. An amendment of $20 million to the FY 2016/17 Commuter Rail SRTP is required as the revenue was not identified in the original submittal. The Commission collaborated with partnering transportation providers to use the funds in the most efficient manner. Therefore, staff coordinated with Southern California Regional Rail Authority (SCRRA) and Riverside Transit Agency (RTA) to use the CMAQ funds to enhance the commuter benefits. After the review of the potential costs, staff decided to augment the scope of use for the funds to cover additional eligible services associated to PVL operations. Staff intends to include the pass-through of CMAQ funds to pay for SCRRA operating contracts meeting federal procurement requirements, RTA new shuttle services that provide direct service to PVL, and Commission security contract costs for the four new PVL stations. The security contract was federalized and executed on October 1, 2016, following Commission award in September 2016. 152 Agenda Item 6H Staff’s intent is to use the funds over five years with an initial start of $4.7 million in the first year and anticipated incremental costs over future years. As such, use of these funds require an increase to the FY 2016/17 budget of $4.7 million for CMAQ grant revenues and corresponding rail operations, shuttle service expenditures and station security. An agreement for the RTA shuttles is addressed in a separate item. The balance of CMAQ funds will offset Measure A funds currently in the budget for SCRRA operations. The CMAQ funds in this grant are reimbursements with toll credits as a local match; therefore, no additional funds will be required. The funding agreements required with SCRRA and RTA will be executed in order to comply with Federal Transit Administration guidelines. Financial Information In Fiscal Year Budget: No Year: FY 2016/17 Amount: $4,700,000 Source of Funds: CMAQ (Congestion Mitigation Air Quality) Budget Adjustment: Yes GL/Project Accounting No.: 034198 41403 103 25 41403 $4,700,000 (revenues) 034198 86101 103 25 81006 $863,200 (security costs) 034198 86101 103 25 86101 $1,059,345 (RTA shuttle costs) 034198 86101 103 25 86101 $2,721,300 (SCRRA operation costs) Fiscal Procedures Approved: Date: 12/19/2016 153 AGENDA ITEM 6I Agenda Item 6I RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: January 11, 2017 TO: Riverside County Transportation Commission FROM: Sheldon Peterson, Rail Manager Brenda Ramirez, Management Analyst THROUGH: Anne Mayer, Executive Director SUBJECT: Resolution to Obtain Proposition 1B Grant Funding STAFF RECOMMENDATION: This item is for the Commission to adopt Resolution No. 17-001, “Resolution of the Riverside County Transportation Commission Approving the Authorization for the Execution of the Certifications and Assurances for the Public Transportation Modernization, Improvement, and Service Enhancement Account Bond Program”. BACKGROUND INFORMATION: The Commission’s Commuter Rail Program applies for various federal and state funding that is necessary to fund rail projects within Riverside County and to meet the Commission’s annual funding responsibility to maintain and rehabilitate The Commission’s rail stations. Each year various funding opportunities become available and require a resolution from the Commission authorizing the Executive Director to act on behalf of the Commission to complete the necessary paperwork to obtain capital funds for rail projects. The attached resolution is for the following formula funding opportunity: State of California - Public Transportation Modernization, Improvement, and Service Enhancement Account Bond Program (PTMISEA) With the recommended resolution, staff will complete the grant application for $100,774 of residual Fiscal Year 2008/09 and FY 2009/10. The residual amount being allocated to the Commission is a result of funding the state set aside for potential administration costs; however, the State Controller’s Office determined those funds are no longer needed for that use and designated those funds to be used for projects. The Commission will use the funds for its Rail Passenger Efficiency Upgrade project, which is funded with the same funds applied from FY 2014/15. The projects that will fall under this grant will address passenger comfort and security at the stations with passenger shelters to protect riders from the elements, benches and seating to make waits easier, and emergency 154 Agenda Item 6I phones to improve security. Security and safety will also be addressed with improved fencing and access control to the platforms to ensure safe and efficient paths of travel for the riders. Security lighting will also be included to make the stations welcoming throughout the year, especially for the early morning and late night commuters. Funding related to the resolution will be listed and budgeted in FY 2017/18 Short Range Transit Plan, which is approved by the Commission. Financial Information In Fiscal Year Budget: N/A Year: FY 2017/18 Amount: $100,744 Source of Funds: Proposition 1B - PTMISEA Budget Adjustment: N/A GL/Project Accounting No.: 004011 415 41507 265 33 41501 Fiscal Procedures Approved: Date: 12/19/2016 Attachment: Resolution No. 17-001 155 RESOLUTION NO. 17-001 AUTHORIZATION FOR THE EXECUTION OF THE CERTIFICATIONS AND ASSURANCES FOR THE PUBLIC TRANSPORTATION MODERNIZATION, IMPROVEMENT, AND SERVICE ENHANCEMENT ACCOUNT BOND PROGRAM WHEREAS, the Riverside County Transportation Commission is an eligible project sponsor and may receive state funding from the Public Transportation Modernization, Improvement, and Service Enhancement Account (PTMISEA) now or sometime in the future for transit projects; and WHEREAS, the statutes related to state-funded transit projects require a local or regional implementing agency to abide by various regulations; and WHEREAS, Senate Bill 88 (2007) named the Department of Transportation (Department) as the administrative agency for the PTMISEA; and WHEREAS, the Department has developed guidelines for the purpose of administering and distributing PTMISEA funds to eligible project sponsors (local agencies); and WHEREAS, the Riverside County Transportation Commission wishes to delegate authorization to execute these documents and any amendments thereto to the Executive Director. NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the Riverside County Transportation Commission that the fund recipient agrees to comply with all conditions and requirements set forth in the Certification and Assurances document and applicable statutes, regulations and guidelines for all PTMISEA funded transit projects. NOW THEREFORE, BE IT FURTHER RESOLVED that the Executive Director be authorized to execute all required documents of the PTMISEA program and any Amendments thereto with the California Department of Transportation. NOW, THEREFORE, BE IT FURTHER RESOLVED by the Governing Body of the Riverside County Transportation Commission that it hereby authorizes the submittal of the project nomination and allocation request to Caltrans requesting $ 100,774 in FY 2008-09 and FY 2009-10 PTMISEA funds for Riverside County Rail Passenger Rail Efficiency Upgrades Project. APPROVED AND ADOPTED THIS 11TH DAY OF JANUARY, 2017. ________________________________ John F. Tavaglione, Chair Riverside County Transportation Commission 156 ATTEST: Jennifer Harmon, Clerk of the Board Riverside County Transportation Commission 157 AGENDA ITEM 6J Agenda Item 6J RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: January 11, 2017 TO: Riverside County Transportation Commission FROM: Brian Cunanan, Commuter and Motorist Assistance Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Operation of the Freeway Service Patrol Program in Riverside County STAFF RECOMMENDATION: This item is for the Commission to: 1)Approve Agreement No. 17-45-057-00 with the California Department of Transportation (Caltrans) for the operation of the Riverside County Freeway Service Patrol (FSP) program in an amount not to exceed $1,648,178 in state funding for Fiscal Year 2016/17; 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 1986, the Commission established itself as the Riverside County Service Authority for Freeway Emergencies (RC SAFE) after the enactment of SB 1199 in 1985. The purpose of the formation of SAFEs in California was to provide call box services and, with excess funds, provide additional motorist aid services. Funding for RC SAFE is derived from a one dollar per vehicle registration fee on vehicles registered in Riverside County. Initially, these funds were used only for the call box program. As additional motorist aid services were developed, SAFE funds were also used to provide FSP and the Inland Empire 511 traveler information services as part of a comprehensive motorist aid system in Riverside County. In 1990, Proposition C was passed to fund transportation improvements and to help reduce traffic congestion in California. From this, the FSP program was created by Caltrans, which developed the corresponding Local Funding Allocation Plan to distribute funds to participating jurisdictions through a formula based on population, urban freeway lane miles, and levels of congestion. The Commission, acting in its capacity as the RC SAFE, is the principal agency in Riverside County, in partnership with Caltrans and the California Highway Patrol, managing the FSP program. The purpose of the FSP program is to provide a continuously roving tow services patrol along designated freeway segments (referred to as beats) to relieve freeway congestion and facilitate the rapid removal of disabled vehicles and those involved in minor accidents on 158 Agenda Item 6J local freeways. Currently, the Commission contracts with four tow truck operators to provide service on a total of nine beats Monday through Friday during the peak commute hours, 5:30 a.m. to 8:30 a.m. and 2:30 p.m. (12:30 p.m. on Fridays) to 6:30 p.m. In FY 2015/16, FSP performed 36,711 assists. DISCUSSION: In November 2016, the Commission received the attached fund transfer agreement from Caltrans for FY 2016/17. Caltrans funding agreements are reimbursement-based and allow for the carryover of contract balances not expended in the agreement’s stated fiscal year. This allows the Commission to fully expend allocated amounts and also helps to accommodate the timing of the Caltrans allocation release, which is typically later during the fiscal year for which it is intended. The Caltrans funding agreement for FY 2016/17 provides for continued state funding in the amount of $1,648,178. The Commission will fund the required local match of $412,045 with RC SAFE revenues. As with prior funding agreements, any state funds not claimed in the current fiscal year will be carried over and claimed in FY 2017/18. A budget adjustment is not required and upon approval of this agenda item, the Commission will execute this fund transfer agreement with Caltrans. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18 Amount: $1,300,000 $ 348,178 Source of Funds: State of California Budget Adjustment: No N/A GL/Project Accounting No.: 002173 415 41508 0000 201 45 41505 Fiscal Procedures Approved: Date: 12/19/2016 Attachment: FSP Fund Transfer Agreement 159 160 161 162 163 164 165 166 AGENDA ITEM 7 PRESENTATION RCTC’s 40 th Anniversary Expanding the Board January 11, 2017 Where It All Started •Created by state law in 1976 along with similar agencies in neighboring counties •Original law called for an seven -member board with three alternates What Positions Comprised the Commission? •Three Members of the Board of Supervisors •Two City Members Appointed by the City Selection Committee •One Member Appointed by the Mayor of Riverside •A public member appointed by the other members of the Commission The First Commissioners •Russell Beirich (Chairman) •Eric Haley •Clayton Record •Donald Schroeder (Vice Chairman) •Flora Spiegel •Norton Younglove •Public Member appointed later SB 1851 Expands the Dais •Senator Dave Kelley Carried Legislation to Expand the Commission in 1998 Every County Supervisor An elected Mayor of City Council Member from every city A non-voting member appointed by the Governor No public member The Weighted Vote •Can be requested by any member of the Commission •Requires majority approval of the Supervisors •Requires majority of those representing cities •Requires majority of those representing cities representing a majority of the incorporated population of the county AGENDA ITEM 8 Agenda Item 8 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: January 11, 2017 TO: Riverside County Transportation Commission FROM: Lorelle Moe-Luna, Senior Management Analyst Shirley Medina, Planning and Programming Director THROUGH: Anne Mayer, Executive Director SUBJECT: California Transportation Commission’s Active Transportation Program Cycle 3 for Fiscal Years 2019/20 – 2020/21 STAFF RECOMMENDATION: This item is for the Commission to: 1)Approve the Riverside County Active Transportation Program (ATP) projects for inclusion in the Metropolitan Planning Organization (MPO) ATP Regional Program Cycle 3 consisting of the highest scoring implementation projects (85.5 to 87 pts) in the total amount of $6,627,537; 2)Submit the recommended projects to the Southern California Association of Governments (SCAG) for inclusion in the MPO ATP Regional Program and subsequent submittal to the California Transportation Commission (CTC) for final approval in March 2017; 3)Submit the MPO ATP regional projects to SCAG for inclusion in the Federal Transportation Improvement Program (FTIP) programming; and 4)Direct staff to coordinate with the MPO ATP Regional Program project sponsors regarding timely funding allocations, obligations, and project delivery. BACKGROUND INFORMATION: SB 99 created the ATP focusing state and federal funds toward projects that improve public health and reduce greenhouse gases. The CTC is responsible for administering the program including the development of guidelines, which involves public input. Project categories for these funds mainly include pedestrian and bicycle facilities or programs that enhance or encourage walking and bicycling. ATP Cycle 3 began with the release of a call for projects on April 15, 2016. The call for projects included three categories of funding: Funding Category Amount Statewide Competitive (50%) $ 131,763,000 Small Urban and Rural Competitive (10%) 26,333,000 Large MPO Competitive (40%) 105,430,000 Total Available ATP Funds – Cycle 3 $ 263,526,000 167 Agenda Item 8 Applications were due to the CTC and Caltrans by June 15, 2016. The CTC received a total of 456 project applications requesting $976.8 million in ATP funds. Scoring of applications was managed by the CTC and involved the participation of various agencies including, but not limited to, regional transportation planning agencies, MPOs, Caltrans, councils of governments, county public health departments, and advocacy and interest groups such as Safe Routes to Schools, California Bicycle Coalition, and Rails to Trails. In total, Riverside County agencies submitted 26 projects requesting approximately $66.1 million of ATP funding in this cycle of funding. The ATP process allows applicants two rounds of opportunity to be awarded – statewide and MPO level. As part of the sequential project selection, projects are first evaluated statewide and those that are not ranked high enough for statewide funding are automatically provided a second opportunity for funding through the large MPO share. Applications were scored based on the following criteria: TOTAL POINTS STATEWIDE ATP SCORING CRITERIA 30 pts Potential for increased walking and bicycling 25 pts Potential for reducing the number and/or rate of bicycle/pedestrian fatalities and injuries 15 pts Public Participation and Planning 10 pts Improved Public Health 10 pts Benefit to Disadvantaged Communities 5 pts Cost-effectiveness 5 pts Leveraging of non-ATP funds 100 pts Total Points were also deducted if the applicant did not contact the California Conservation Corps or a Certified Community Conservation Corps for possible involvement with project implementation prior to submitting the application to Caltrans, and/or if the applicant’s performance on past CTC/Caltrans grants and deliverability of projects was not satisfactory. CTC/Caltrans Statewide Competitive Funding Recommendations On December 7, 2016, the CTC approved its project recommendations for the statewide competitive component, which included the following three projects from Riverside County: 168 Agenda Item 8 CTC/CALTRANS ATP PROJECT FUNDING FOR RIVERSIDE COUNTY – STATEWIDE COMPETITION Agency Project ATP Request *DAC CTC Score City of Moreno Valley Juan Bautista De Anza Trail Gap Closure $2,849,000 X 94.0 City of La Quinta La Quinta Village Complete Streets – A Road Diet Project $7,313,000 X 90.0 City of Desert Hot Springs Palm Drive Bicycle and Pedestrian Improvement Project $772,000 X 89.5 Riverside County Statewide Total $10,934,000 *DAC – Disadvantaged Community per CTC guidelines MPO Regional Program Recommendations The SCAG MPO ATP share is about $56 million for the six-county region and includes approximately $53.3 million for implementation projects and $2.8 million for planning and non-infrastructure activities. The $53.3 million for implementation projects is distributed by county based on population as follows: County Funding Amount Imperial $ 509,572 Los Angeles 28,785,330 Orange 8,950,017 Riverside 6,627,537 San Bernardino 6,011,091 Ventura 2,407,653 Total $ 53,291,200 ATP guidelines require that large MPOs, such as the SCAG, work with the county transportation commissions to develop its regional program recommendations. MPO ATP guidelines allow each county transportation commission to add up to 10 points to the CTC score for projects based on local criteria. At its May 2014 meeting, the Commission approved adding 10 points to projects consistent with adopted local and regional plans. All Riverside County projects, at a minimum, are consistent with the SCAG adopted 2016 Regional Transportation Plan/Sustainable Communities Strategy. Adding 10 points to Riverside County project scores for the projects not recommended for the statewide competitive program results in the next highest scored projects that can be funded from Riverside County’s share of MPO funding: 169 Agenda Item 8 RIVERSIDE COUNTY MPO IMPLEMENTATION PROGRAM RECOMMENDATIONS Agency Project ATP Request Cumulative Total CTC Score/ RCTC Score Riverside County Dept. of Public Health Safe Routes to School (SRTS) Program, Cabazon/Banning $500,000 $500,000 87.0/97.0 City of Jurupa Valley Pacific Ave SRTS & Road Diet $607,000 $1,107,000 86.0/96.0 *Coachella Valley Association of Governments (CVAG) CV Link $5,520,537 $6,627,537 85.5/95.5 *ATP requested amount was originally $24.307 million. SCAG Sustainability Planning Grant (SPG) Program The $2.8 million of the MPO ATP share that is set aside for planning and non-infrastructure activities was made available through a call for projects through the SCAG SPG program, which included other state and local funding sources for a total of about $9.0 million in the program. There were three projects from Riverside County that applied through Cycle 3 that were considered for funding through the SCAG SPG program. Those projects included: • City of Wildomar’s Active Transportation Plan, $300,000 • Riverside County Department of Public Health – Eastern Coachella Valley SRTS Program, $500,000 • Riverside County Department of Public Health – Lake Elsinore SRTS program, $500,000 As of the writing of this report, SCAG’s recommendations for the SPG program have not been approved. SCAG will be releasing project recommendations for the SPG Program prior to the January Commission meeting and the recommendations will be provided to the Commission. Next Steps Upon approval of the above recommendations for MPO ATP funding, staff will submit the projects to SCAG for inclusion in the MPO ATP Regional Program Cycle 3. Subsequently, SCAG will submit the MPO Regional Program projects to the CTC for final approval at the March 15, 2017 CTC meeting. Staff will work closely with project sponsors in preparing allocation funding requests and requests for obligating federal funds. Projects will also be required to be included in the FTIP. Staff will continue to participate in CTC/Caltrans working groups to further develop and improve the ATP guidelines and process, and participate in future evaluations of ATP project applications. 170 Agenda Item 8 Financial Impact ATP funds are administered through the CTC, Caltrans, and the Federal Highway Administration. The Commission is not a recipient of these MPO ATP funds; therefore, there is no fiscal impact to the Commission’s budget. Attachment: ATP Scores for All Riverside County Applications 171 ATTACHMENT 1: ACTIVE TRANSPORTATION PROGRAM (ATP) SCORES FOR ALL RIVERSIDE COUNTY APPLICATIONS Applicant Project Title DAC Total Project Cost (000's) Total Fund Request (000's) FY 19-20 FY 20-21 Plan SRTS SRTS NI CTC Final Score RCTC Score PROJECTS AWARDED AT THE STATE LEVEL (California Transportation Commission Approved 12/7/16) 1 Moreno Valley Juan Bautista De Anza Trail Gap Closure X 3,149 2,849 90 2,759 X 94.00 n/a 2 La Quinta La Quinta Village Complete Streets - A Road Diet Project X 9,533 7,313 7,313 0 X 90.00 n/a 3 Desert Hot Springs Palm Drive Bicycle and Pedestrian Improvement Project X 965 772 772 0 X 89.50 n/a State Total 13,647 10,934 PROJECTS CONSIDERED AT THE MPO LEVEL 4 Wildomar City of Wildomar Active Transportation Plan 375 300 300 0 X 88.00 98.00 * 5 Riverside County Dept. of Public Health Riverside County Safe Routes to School Program, Cabazon/Banning X 625 500 500 0 X 87.00 97.00 6 Jurupa Valley Pacific Avenue Safe Route to School and Road Diet Project X 2,638 607 154 453 X 86.00 96.00 7 CVAG CVLink X 99,997 24,307 24,307 0 85.50 95.50 8 Riverside County Dept. of Public Health (Injury Prevention Services) Riverside County Safe Routes to Schools Program, Eastern Coachella Valley X 625 500 500 0 X 85.00 95.00 ** 9 Riverside County Transportation Department Cabazon Safe Routes to School Sidewalk Safety Improvements X 1,120 1,070 282 788 X 85.00 95.00 10 Riverside County Transportation Department Clark Street SR2S Sidewalk and Intersection Safety Improvements X 2,945 684 684 0 X 84.00 94.00 11 Indio Herbert Hoover Elementary Pedestrian Improvements X 2,983 2,983 340 2,643 X X 83.00 93.00 12 Perris Perris Valley Storm Drain Channel Trail - Phase 2 X 3,204 3,004 237 2,767 83.00 93.00 13 Hemet Hemet Valley Bikeway Connect X 2,288 2,288 200 2,088 X X 83.00 93.00 14 Riverside County Dept. of Public Health (Injury Prevention Services) Riverside County Safe Routes to Schools Program, Lake Elsinore X 625 500 500 0 X 80.00 90.00 ** 15 Temecula Santa Gertrudis Creek Pedestrian and Bicycle Trail Extension and Interconnect X 4,761 3,759 3,759 0 80.00 90.00 16 Riverside La Sierra Neighborhood Sidewalk Improvements X 1,215 999 0 999 79.00 89.00 17 Riverside County Transportation Department Lakeview Avenue Safe Routes to School Sidewalk Safety Improvements X 1,349 1,269 180 1,089 X 75.00 85.00 18 Eastvale Road Diet, Bike Lanes, Education, Encouragement and Enforcement Program 1,510 1,208 175 1,033 X X 74.00 84.00 19 Cathedral City Cathedral City Pedestrian Safety Improvements X 573 419 419 0 X 71.00 81.00 20 Calimesa County Line Road Active Transportation Program – Cycle 3 X 1,342 1,005 48 957 X X 67.00 77.00 172 ATTACHMENT 1: ACTIVE TRANSPORTATION PROGRAM (ATP) SCORES FOR ALL RIVERSIDE COUNTY APPLICATIONS Applicant Project Title DAC Total Project Cost (000's) Total Fund Request (000's) FY 19-20 FY 20-21 Plan SRTS SRTS NI CTC Final Score RCTC Score 21 Palm Springs Citywide Sidewalk Gap Closures, Safety Lighting, and ADA-Compliant Upgrades X 2,855 2,425 2,425 0 X 58.00 68.00 22 Coachella Coachella - Grapefruit Avenue Bicycle, Pedestrian, and Roadway Safety Improvement Project X 2,209 2,209 275 1,934 58.00 68.00 23 Perris Multi-modal SRTS & Metrolink to Metrolink Stations Connectivity Project X 2,000 950 950 0 X 54.00 64.00 24 Riverside County Transportation Department Dillon Road Bike Lane Improvements X 3,280 3,200 350 2,850 45.00 55.00 25 Riverside Riverside Recreational Trail (PA&ED)X 750 750 750 0 39.00 49.00 26 Riverside Traffic Circle Installation to Encourage Increased Biking and Walking 242 242 242 0 8.00 18.00 MPO Total 139,511 55,178 Grand Total 153,158 66,112 *Planning projects cannot be considered for funding under the MPO Implementation share. This project was included for funding consideration under the SCAG Sustainability Planning Grant Program. **Non-Infrastructure programs are first considered for funding under the County's MPO Implementation share; those that are not recommended for funding are considered under the SCAG Sustainability Planning Grant Program. 173 2017 ACTIVE TRANSPORTATION PROGRAM (ATP) CYCLE 3 METROPOLITAN PLANNING ORGANIZATION (MPO) REGIONAL PROGRAM RECOMMENDATIONS Lorelle Moe Luna Senior Management Analyst, Planning and Programming Active Transportation Program •Created by SB 99 •Administered by the California Transportation Commission (CTC) •Goals: –Increase biking and walking trips –Increase safety and mobility of non-motorized users –Advance active transportation efforts of regional agencies to achieve greenhouse gas reduction goals –Enhance public health,including reduction of childhood obesity through programs such as Safe Routes to School (SRTS) –Ensure that disadvantaged communities fully share in the benefits Eligible Projects •Infrastructure:Capital improvements including the environmental,design,right of way,and construction phases of a capital (facilities)project. •Plans:Development of a community wide bicycle,pedestrian,SRTS,or active transportation plan in a disadvantaged community •Non-Infrastructure (NI)Projects:Education, encouragement,and enforcement activities. Scoring Criteria •Evaluators included county transportation commissions, MPOs, Caltrans, councils of governments, local agencies, advocacy and interest groups, etc. TOTAL POINTS CTC ATP SCORING CRITERIA 30 pts Potential for increased walking and bicycling 25 pts Potential for reducing the number and/or rate of bicycle/pedestrian fatalities and injuries 15 pts Public Participation and Planning 10 pts Improved Public Health 10 pts Benefit to Disadvantaged Communities 5 pts Cost-effectiveness 5 pts Leveraging of non-ATP funds 100 pts Total Available Funding •Funded from various federal and state funds appropriated in the annual Budget Act, including: –Transportation Alternative Program (TAP) –Highway Safety Improvement Program –State Highway Account •Cycle 3 ATP funding is programmed for FY 2019/20 and FY 2020/21. Available Funding Cycle 3 •Sequential project selection,all applications evaluated first statewide then at the large MPO share . Category Amount Statewide Competitive (50%)$ 131,763,000 Small Urban and Rural Competitive (10%) 26,333,000 Large MPO Competitive (40%)105,430,000 Total Available Funds $ 263,526,000 Available Funding Cycle 3 Category Amount Statewide Competitive (50%)$ 131,763,000 Small Urban and Rural Competitive (10%) 26,333,000 Large MPO Competitive (40%)105,430,000 Total Available Funds $ 263,526,000 CTC Approved 12/7/16 CTC Approved 12/7/16 $56 million Implementation Projects $53.2 million Planning and Non- Infrastructure Projects $2.8 million Available Funding Cycle 3 $56 million Implementation Projects $53.2 million Planning and NI Projects $2.8 million County Funding Amount Imperial $ 509,572 Los Angeles 28,785,330 Orange 8,950,017 Riverside 6,627,537 San Bernardino 6,011,091 Ventura 2,407,653 Total $ 53,291,200 Combined into the SCAG Sustainability Planning Grant Program SCAG County Transportation Commissions Recommends Projects for MPO Regional Program County Transportation Commissions assists with evaluation of projects SCAG recommends Planning and NI Projects for MPO Regional Program SCAG Sustainability Planning Grant (SPG) Sustainability Categories: 1)Active Transportation –Bicycle,Pedestrian,and SRTS Plans 2)Greener Region –Natural Resource Plans,Climate Action Plans,and Greenhouse Gas Reduction programs 3)Integrated Land Use –Sustainable Land Use Planning,Transit Oriented Development,and Land Use and Transportation Integration •Funding Availability:Approximately $9 million from various federal,state, and local funds such as ATP,Transportation Development Act (TDA),and Mobile Source Air Pollution Reduction Review Committee (MSRC). •SCAG draft recommendations indicate that the ATP funds will be allocated to the Riverside County Department of Public Health –Eastern Coachella Valley SRTS Program,$500,000. •Final recommendations for SPG will be taken to the February 2nd SCAG Regional Council meeting for approval. MPO Regional Program •SCAG is required to work with each county transportation commission to develop the MPO ATP Regional Program •MPO ATP guidelines allow for an additional 10 points to be added based on local criteria •In May 2014,RCTC approved adding 10 points to projects consistent with adopted local and regional plans MPO Regional Program Recommendations Agency Project ATP Request Cumulative Total CTC Score/ RCTC Score Riverside County Dept. of Public Health Safe Routes to School (SRTS) Program, Cabazon/Banning $500,000 $500,000 87.0/97.0 City of Jurupa Valley Pacific Ave SRTS & Road Diet $607,000 $1,107,000 86.0/96.0 *Coachella Valley Association of Governments (CVAG) CV Link $5,520,537 $6,627,537 85.5/95.5 *ATP requested amount was originally $24.307 million. Staff Recommendations Approve the Riverside County ATP projects for inclusion in the MPO ATP Regional Program Cycle 3 consisting of the highest scoring implementation projects (85.5 to 87 pts)in the total amount of $6,627,537; Submit the recommended projects to the Southern California Association of Governments (SCAG)for inclusion in the MPO ATP Regional Program and subsequent submittal to the California Transportation Commission (CTC)for final approval in March 2017; Submit the MPO ATP regional projects to SCAG for inclusion in the Federal Transportation Improvement Program (FTIP)programming;and Direct staff to coordinate with the MPO ATP Regional Program project sponsors regarding timely funding allocations,obligations,and project delivery. AGENDA ITEM 9 Agenda Item 9 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: January 11, 2017 TO: Riverside County Transportation Commission FROM: Anne Mayer, Executive Director THROUGH: Robert Yates, Multimodal Services Director SUBJECT: Local Transportation Fund Loan To SunLine Transit Agency STAFF RECOMMENDATION: This item is for the Commission to approve an advance of Local Transportation Fund (LTF) funds in the amount of $3 million to SunLine Transit Agency (SunLine). BACKGROUND INFORMATION: SunLine is requesting a loan in the amount of $3 million from the Coachella Valley Apportioned and Unallocated LTF Reserve Fund. The reason for the loan request is that SunLine delayed filing its Fiscal Year 2015/16 federal 5307 grant application. DISCUSSION: SunLine, along with all other public operators in Riverside County, must file a Short Range Transit Plan (SRTP) with the Commission as part of the Commission’s annual budget preparation process. The Commission typically approves the SRTPs in June of each year. Part of the funding plan for SunLine, as described in its annual SRTP, includes the programming of federal 5307 funds, which are used to augment LTF and passenger fares as an operating cash component. Staff was informed on December 21, 2016, that SunLine experienced a delay in filing for the FY 2015/16 federal 5307 funds and SunLine does not have the appropriate funds on hand to continue funding operations at the level approved in the SRTP. Staff was able to confirm SunLine did in fact miss the Federal Transit Administration (FTA) September 2016 deadline for filing the appropriate paperwork. Staff was also able to verify the grant application is currently filed with the FTA and it is going through the approval process. SunLine has been advised by the FTA it may have funds available by February 2017. Next Steps Short-term loans, while rare, have been approved in the past by the Commission. Staff recommends approval of this loan with the contingency that SunLine will reimburse the Commission’s Coachella Valley Apportioned and Unallocated LTF Reserve Fund within 14 days of receiving the federal 5307 funds from the FTA once SunLine has secured approval of the grant. 174 Agenda Item 9 A budget adjustment is not required and this loan does not have a fiscal impact to the Coachella Valley Apportioned and Unallocated LTF Reserve Fund. Financial Information In Fiscal Year Budget: N/A Year: FY 2016/17 Amount: $3,000,000 Source of Funds: Coachella Valley Apportioned and Unallocated LTF Reserve Fund Budget Adjustment: N/A GL/Project Accounting No.: 601-12301 (loans receivable) Fiscal Procedures Approved: Date: 12/29/2016 175 AGENDA ITEM 10 Agenda Item 10 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: January 11, 2016 TO: Riverside County Transportation Commission FROM: Jillian Guizado, Senior Legislative Affairs Analyst Aaron Hake, External Affairs Director THROUGH: Anne Mayer, Executive Director SUBJECT: 2017 State and Federal Legislative Platform STAFF RECOMMENDATION: This item is for the Commission to adopt the Commission’s 2017 State and Federal Legislative Platform. BACKGROUND INFORMATION: At the beginning of every year, the Commission adopts a legislative platform that outlines the positions the Commission will take on various pieces of legislation, administrative policies, and regulations. The platform addresses broad themes that are critical in both Sacramento and Washington, D.C. These platform points allow staff, Commissioners, and the Commission’s legislative advocates to communicate in a timely, effective manner with state and federal actors as issues arise. The 2017 proposed state and federal legislative platform follows closely with what the Commission adopted in previous years and includes a few items that have been added or adjusted to reflect policy issues that have arisen in the last year and are anticipated to be on the horizon for 2017. Attachment: 2017 State and Federal Legislative Platform 176 2017 State and Federal Legislative Platform Riverside County Transportation Commission OBJECTIVE: Advocate for state and federal policy and funding decisions that enable RCTC to: implement Measure A, the Regional Transportation Plan (RTP), and adopted plans and programs; comply with state and federal requirements; and provide greater mobility, improved quality of life, operational excellence, and economic vitality in Riverside County. Equity and Fairness • Funding should be distributed equitably to Riverside County. • Governance structures should give equitable voting and decision-making authority to Riverside County. • Policies should recognize high-growth regions for their impact on the economy and environment, looking forward. Regional Control • Project selection and planning authority for state/federal funds should be as local as possible, preferably in the hands of the Commission. • State/federal rulemakings, administrative processes, and policy development activities should include meaningful collaboration from regional transportation agencies. • Oppose efforts by non-transportation interests to assert control over transportation funding. • Policies should be sensitive to each region’s unique needs and avoid “one size fits all” assumptions, especially regarding the balance among highways, transit, rail, and freight; and urban, suburban, and rural needs. • State/federal policies should align authority to select projects, manage performance, and implement programs with state/federal mandates and responsibilities placed upon regional and local governments. Protect Our Authority and Revenue • Existing statutory authorities for the Commission should be preserved and protected. • Oppose efforts to infringe on the Commission’s discretion in collecting and administering its revenue sources including, but not limited to, Measure A, tolls, TUMF. • Oppose efforts to remove or reduce tax exemption on municipal bond interest to avoid increased costs to finance projects. Innovation • Support the availability of project delivery tools such as design-build, construction manager/general contractor, and public-private partnerships to the Commission, the State, federal agencies, and other infrastructure agencies. Oppose efforts to add barriers to effective implementation of such tools. • Support a collaborative approach for the California Transportation Secretary’s “California Transportation Infrastructure Priorities (CTIP)” efforts to advance innovation and reform. 177 • Support implementation and expansion of U.S. Department of Transportation’s “Every Day Counts” initiative, the “Building America Transportation Investment Center” and other efforts to expedite and advance innovation in transportation. Project Delivery Streamlining • Support all efforts to reduce project delivery timelines while maintaining important environmental protections. • Support reciprocity of the California Environmental Quality Act (CEQA) for the National Environmental Protection Act (NEPA). • Support implementation of the Fixing America’s Surface Transportation Act (FAST Act) reforms to accelerate project delivery including, but not limited to, the creation of a single NEPA document for all federal agencies; NEPA reciprocity; expediting and improving the federal permitting review process; and narrowing concurrence requirements. • Support further efforts to streamline the federal environmental project approval processes and provide flexibility to meet planning requirements due to changing circumstances. • Support creation of a low-interest loan program to support habitat conservation plans that mitigate the impacts of transportation infrastructure and make project approvals more efficient. • Support efforts to modernize the CEQA, including but not limited to: o Reduce the Commission’s exposure to litigation; o Increase accountability and disclosure for plaintiffs in CEQA cases; o Limit courts’ ability to invalidate entire CEQA document when a writ of mandate can resolve discreet issues; o Exempt illegal actions from CEQA review; and o Prohibit “document dumping”. Accountability • Revenue derived from transportation sources should be spent exclusively on transportation projects. Support measures to strengthen the relationship between transportation revenue and expenditures; oppose measures that weaken them. • Support efforts to ensure that all projects in a voter-approved tax measure are delivered to the public. • Encourage the adoption of on time, balanced state budgets, federal appropriations, and authorizations, to ensure transportation projects are delivered without delay or costly stoppages, and that adequate planning for future projects can take place. • Promote policies that ensure state and federal agencies are responsive and accountable to Commission concerns when working on Commission projects. • Oppose efforts by non-elected, regulatory bodies to dilute, reduce, or withhold transportation funds. • Support maximum transparency by funding agencies in revealing scoring of funding requests. Alignment of Responsibilities • Support policies that reflect and recognize self-help counties’ supermajority funding contribution to transportation projects in California. Oppose policies that give outsized weight to minority funding partners. 178 • Advocate that cap-and-trade revenues be expended in a manner that enables regions to meet greenhouse gas reduction goals in SB 375, AB 32 and SB 32. • Support policies that provide decision-making authority and flexibility to agencies bearing financial risk for projects. Oppose policies that place unfunded mandates and other undue burdens and restrictions on agencies that bear financial risk for projects. • Support strong collaborative partnerships with state and federal agencies. • Support efforts by the state and federal governments to improve maintenance and operations of the state highway and interstate systems. Oppose efforts to realign maintenance and operations costs and responsibilities to local or regional agencies. • Oppose efforts by the state legislature to deflect responsibility for voting on revenue for statewide transportation to local voters. • Oppose legislation to increase barriers to the use of contracting by local government. Alternatives to Driving Ridesharing • Support incentives to employers that enhance or create transit reimbursement or ridesharing programs. • Oppose new mandates on employers or transportation agencies to provide ridesharing programs, or any efforts that would result in disruption of the Commission’s ridesharing program. • Support programs and policies that support investments in new technologies that promote ridesharing, traffic information, and commuter assistance. Active Transportation • Support maximum regional control of project selection for Active Transportation Projects. Transit and Rail • Support incentives for transit agencies that utilize alternative fuels. • Support inclusion and prioritization of Coachella Valley-San Gorgonio Pass Rail service in the California State Rail Plan and other state planning and funding efforts. • Support legislation to better enable the Coachella Valley-San Gorgonio Pass Rail service to become part of California’s intercity rail network, such as legislation to allow intercity rail joint powers authorities to expand their service areas. • Advocate for expeditious and certain reviews and approvals for greenhouse-gas-reducing rail and transit projects. • Support increases in funding for Capital Improvement Grants for new transit service (New and Small Starts 5309 program) in order to create funding capacity for future rail expansion projects and bus rapid transit service in Riverside County. • Support efforts to provide an equitable share of funding to west coast intercity rail systems as compared to the Northeast Corridor. • Support Metrolink’s policy and funding needs with regard to implementation of positive train control and other rail safety items. Support efforts to prioritize high-speed rail funding for connectivity improvements to existing transit systems and infrastructure in California’s urban areas. In particular, support all efforts to ensure that funding is provided as soon as possible 179 projects included in the Memorandum of Understanding (MOU) between the California High Speed Rail Authority (CHSRA), the Southern California Association of Governments (SCAG), and the Commission. • Ensure that the Commission’s rights and interests in passenger rail in Southern California are properly respected in state, federal, and regional plans and policies. • Support all transit operators in Riverside County with legislative concerns impacting the operators’ funding and operations. • Support efforts to provide for streamlined project delivery for transit projects that fulfill the goals of AB 32 and SB 375, as well as other state and federal air quality mandates and mobility performance measures. Tolling • Support legislation that enhances the full and accurate capture of toll revenues, in order to protect the Commission’s debt and congestion management obligations. • Support legislation regarding privacy laws to ensure an appropriate balance between customer privacy, public safety, financial obligation, and practical operations is reasonably met. • Monitor legislation significantly altering the type and/or number of vehicles subject to free or reduced toll rates, in order to protect the Commission’s debt and congestion management obligations. • Monitor legislation and Administrative policies relating to interoperability of tolled facilities statewide and nationally, in order to ensure technical feasibility, cost reasonableness, and customer satisfaction. Goods Movement • Support recommendations of the House Panel on 21st Century Freight Transportation. • Support Congressional action to create a new dedicated funding source for goods movement projects, inasmuch as the funding source: o Has a nexus to the user; o Does not reduce funding to existing highway and transit programs; o Provides funding to California, and Southern California in particular, commensurate with this region and state’s significance to interstate goods movement; and o Can be spent on grade separation projects. • Provide input to the National Freight Advisory Committee and California State Freight Advisory Committee. • Advocate for accurate representation of Riverside County in the Primary Freight Network or other national or statewide freight route designations. • Advocate for freight funding from state and federal sources to be distributed based on a bottoms- up regional consensus, in consultation with state and federal freight plans. Projects • Support programs and policies that advantage transportation projects in Riverside County, including but not limited to: o Measure A-funded projects 180 o Grade separations o Transit capital projects and operations by regional and municipal transit agencies o Commuter rail capital projects and operations o Intercity Rail Service to the Coachella Valley and San Gorgonio Pass o Local streets and road projects sponsored by the county and municipalities o Active Transportation Projects o Expansion and rehabilitation of the state highway system o Interchanges o Safety enhancements o Mitigation of the impacts of goods movement o Connectivity to high-speed rail o Connectivity to commercial airports o Tolled Express Lanes, tolled highways, and related infrastructure and technology • Oppose policies that inhibit the efficient, timely delivery of such projects. • Support implementation of projects in other counties that are contained in the Southern California Association of Governments RTP/Sustainable Communities Strategy when requested by other counties and not in conflict with the Commission’s interests. Funding • Support robust testing and analysis of California’s road charge pilot program as a potential replacement of the state motor fuels excise tax as the primary funding mechanism for transportation. • Encourage the federal government to authorize a program to test and analyze a pilot program to explore potential replacement mechanisms for the federal gasoline excise tax. • Support all efforts to maintain, at the very least, level state/federal funding for transportation programs. • Strongly support repayment of loans made to the state general fund from transportation-related accounts. • Support re-dedication of California truck weight fees to transportation accounts. • Strongly encourage stabilization and restoration of the State Transportation Improvement Program (STIP) from the deep cuts suffered in 2016 which impacted Riverside County projects. • Monitor legislation relating to tax collection for impacts on Measure A revenues or administration fees. Regional Partnerships • Collaborate with regional transportation agencies to impact transportation funding and regulatory policies to bring equity and fairness to the Inland Empire region. • Collaborate with public and private sector stakeholders on policy and funding matters that enhance economic development and quality of life in the Inland Empire region. 181