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05 May 5, 2014 Eastern Riverside County Programs and ProjectsRiverside County Transportation Commission TO: FROM: DATE: SUBJECT: Riverside County Transportation Commission Jennifer Harmon, Office and Board Services Manager April 30, 2014 Possible Conflicts of Interest Issues -Eastern Riverside County Programs and Projects Committee Agenda of May 5, 2014 The May 5, 2014 agenda of the ERC Programs and Projects Committee includes items which may raise possible conflicts of interest. A RCTC member may not participate in any discussion or action concerning a contract or amendment if a campaign contribution of more than $250 is received in the past 12 months or 3 months following the conclusion from any entity or individual listed. Agenda Item No. 7 -Agreement for Forecasting Services for the Coachella Vallev-San Gorgonio Pass Rail Corridor Service Development Plan Consultant(s): HDR Engineering, Inc. 2280 Market Street, Suite 100 Riverside, CA 92501 Thomas Kim, Senior Vice President COMM-ERC-00003 RIVERSIDE COUNTY TRANSPORTATION COMMISSION EASTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE www.rctc.org AGENDA* *Actions may be taken on any item listed on the agenda 10:30a.m. Monday, May 5, 2014 CVAGO/fice 73-710 Fred Waring Drive, Suite 119 Palm Desert, CA 92260 Teleconference Site-Blythe City Hall 235 N. Broadway, Room A Blythe, CA 92225 In compliance with the Brown Act and Government Code Section 54957.5, agenda materials distributed 72 hours prior to the meeting, which are public records relating to open session agenda items, will be available for inspection by members of the public prior to the meeting at the Commission office, 4080 Lemon Street, Third Floor, Riverside, CA, and on the Commission's website, www.rctc.org. In compliance with the Americans with Disabilities Act and Government Code Section 54954.2, if you need special assistance to participate in a Committee meeting, please contact the Clerk of the Board at (951) 787-7141. Notification of at least 48 hours prior to meeting time will assist staff in assuring that reasonable arrangements can be made to provide accessibility at the meeting. 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL 4. PUBLIC COMMENTS -Each individual speaker is limited to speak three (3) continuous minutes or less. The Committee may, either at the direction of the Chair or by majority vote of the Committee, waive this three (3) minute time limitation. Depending on the number of items on the Agenda and the number of speakers, the Chair may, at his/her discretion, reduce the time of each speaker to two (2) continuous minutes. Also, the Committee may terminate public comments if such comments become repetitious. Speakers may not yield their time to others without the consent of the Chair. Any written documents to be distributed or presented to the Committee shall be submitted to the Clerk of the Board. This policy applies to Public Comments and comments on Agenda Items. Under the Brown Act, the Board should not take action on or discuss matters raised during public comment portion of the agenda which are not listed on the agenda. Board members may refer such matters to staff for factual information or to be placed on the subsequent agenda for consideration. Eastern Riverside County Programs and Projects Committee Agenda May 5, 2014 Page2 5. APPROVAL OF MINUTES-OCTOBER 7, 2013 6. ADDITIONS/REVISIONS (The Committee may add an item to the Agenda after making a finding that there is a need to take immediate action on the item and that the item came to the attention of the Committee subsequent to the posting of the agenda. An action adding an item to the agenda requires 2/3 vote of the Committee. If there are less than 2/3 of the Committee members present, adding an item to the agenda requires a unanimous vote. Added items will be placed for discussion at the end of the agenda.) 7. AGREEMENT FOR FORECASTING SERVICES FOR THE COACHELLA VALLEY-SAN GORGONIO PASS RAIL CORRIDOR SERVICE DEVELOPMENT PLAN Pagel Overview This item is for the Committee to: 1) Award Agreement No. 14-25-072-00 to HOR Engineering, Inc. (HOR) for forecasting services for the Coachella Valley-San Gorgonio Pass Rail Corridor (Corridor) Service Development Plan (SOP) in the amount of $1,697,645, plus a contingency amount of $150,000 for a total amount not to exceed $1,847,645; 2) Authorize staff to proceed with the Phase 1 work, including Tasks 1 and 2 through a limited notice to proceed (NTP) in the amount of $1,847,645; 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 to approve contingency work as may be required for the project; 5) Authorize staff to negotiate the scope and fee for Phase 2 (Tasks 3 and 4) and to bring back to the Commission, at a later date, a separate request for authorization to execute a separate contract amendment to proceed to the next phase of work, if warranted; and 6) Forward to the Commission for final action. 8. COMMISSIONERS/ STAFF REPORT Overview This item provides the opportunity for the Commissioners and staff to report on attended and upcoming meetings/conferences and issues related to Commission activities. 9. ADJOURNMENT The next Eastern Riverside County Programs and Projects Committee meeting is scheduled to be held at 10:30 a.m., Monday, June 2, 2014, CVAG Office, 73-710 Fred Waring Drive, Suite 119, Palm Desert, CA 92260. RIVERSIDE COUNTY TRANSPORTATION COMMISSION EASTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE County of Riverside, District IV City of Blythe City of Cathedral City City of Coachella City of Desert Hot Springs City of Indian Wells City of Indio City of La Quinta City of Palm Desert City of Palm Springs City of Rancho Mirage ROLL CALL May 5, 2014 Present 71 Ll %' Cl ~ { ~ ~ Absent Ll )lf Ll 1 Ll Ll Ll Ll Ll Ll r---------------------------------- RIVERSIDE COUNTY TRANSPORTATION COMMISSION EASTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS SIGN-IN SHEET May 5, 2014 ~ NAME AGENCY E MAIL ADDRESS At71/ _;A)~ (;2.c~('_/ )~~ lf'\u"'w (J; dfl Jf?~ // r;;:7t.J~J,<ft> '( m.h t-!rrz~ c.~~H::. ~~I G._ ..., -I }A.,J I L~v1N v Ci'__\_JL c;() [1' J '\ ') 1~ ..... 1 H~ius o.J LfJ CJv, 1~ ' ;S;"c/n-1 ~~ ~--~~ Hv1 <;;# -,_, ( ~~ 0 .~~ ML\.lr , ~()LO / / JPrv11A.../ r/, ~ ,l)t/ /7 1'4,; G ti~ l Jo V\A \oe_\ Wat....,J 'Ii/\ -,yj,-J['~ ,/\ \/\{\ \\I cA /\N...\ ~ DN l V --::D ~ M .--c:IF ~ Ti -v1 -- '-.J ~ . \ DETACH AND SUBMIT TO THE CLERK OF THE BOARD I I / / DATE: ,-71 '-?/' /~,/ CHECK IF PUBLIC COMMENTS: 0 SUBJECT OF PUBLIC COMMENTS: CR ?;?SSEi»6€/2 ~171L s u ~µ;;-AGENDA ITEM NO.: SUBJECT OF (AS LISTED ON THE AGENDA) AGENDA ITEM: ____________________ _ NAME: ? (> /3/:,_,,J?-'1-jV/ RA! N/lf/ 6 PHONE NO.: 7 te o dl/ f? ~/j k/ ADDRESS: STREET CITY ZIP CODE REPRESENTING:S~u//-f ?i//;.£'T /21-l/l-1/ff.5~ ;:;Jssoe. PHONE NO.: ---------NAME OF AGENCY I ORGANIZATION I GROUP BUSINESS ADDRESS: 2.-3 ,Y / t/ 5 /L/f./ ~ Gr 17 J1 ~ n S ,> /2 1/1'1P£ ~ 2 '2.-' "---STREET CITY ZIP CODE Page 1of 1 http ://www.railpictures .net/images/dl/7 /4/5/4 745.1388963922.jpg 5/5/2014 I •4S&t ---Riverside County lronspol'lollonCommission I COACHELLA VALLEY-SAN GORGONIO PASS Corridor Rail Service Coachella Valley Rail Service Overview The Riverside County Transportation Commission (RC TC ) and the Coachella Valley Association of Governments (CVAG) have been working on planning and supporting expansion of passenger rail service to the Coachella Valley since the first study in 1991. It has been determined that using Amtrak with a state supported intercity train presents the best alternative for developing service. Th e 141 mile trip between Los Angeles and Indio would cross four counties and there are proposals for up to 9 stations. Due to the trip length and time of approximately 3 hours, Amtrak service with larger seats and food service would be more appealing to the riders. In addition, the service would operate over Union Pacific and BNSF tracks and, in general, Amtrak has a greater ability to initiate service over freight railroads based on a national agreement. The initial service plan would be for two daily round trips along the corridor. COACHELLA VALLEY- SAN GORGONIO PASS .---------------------tCORRLDOR RAIL SERVICE 1-------. LO S ANGELES COUNTY ORANGE COUNTY SAN BERNARDINO COUNTY RIVERSID COUNTY -Burlington Northern Santo Fe Railroad Trocb -Union Pacific Railroad Tracks -SCRRA Alignment [Son Gabriel Sub) -UP Alignment !Alhambra Subj ~~'tf-(:/ Existing Station w1!h Roil Connecl1ons 0 0 0 Q Potential Stol1on • Catchment Areas ( 15 mile radius) • Not oil potent1ol stations would be needed, comtrud1on and alignment olterno!ives wrll be determined in the fu ture Project Benefits • A new regional intercity passenger rail service to the Coachella Valley will ease congestion on local roads and freeways, providing new economic opportunity, improving mobility and the quality of life in the Inland Empire . • The need for daily, convenient intercity passenger rail service is growing as an environmental friendly alternate to the 1-10 freeway. • The Coachella Valley and the San Gorgonio Pass area are experiencing rapid population growth and demand on this route will continue to increase. • This new connection would serve both the commuter and leisure market with a safe and reliable transportation option. Initial Project Supporters: Riverside County Transportation Comm i ssion County of Riverside Supervisors Coachella Valley Association of Governments Coachella Valley Economic Partnership City of Calimesa City of Cathedral City City of Corona City of Indian Wells City of Eastvale City of Jurupa Valley City of Indio City of La Quinta City of Palm Desert City of Palm Springs City of Temecula Greater Palm Springs Convention & Visitors Bureau (CVB) Southwest Rail Passenger Association If you would like to be listed as a supporter, please contact RCTC. Riverlide(ounlylronspor1ation(ommission COACHELLA VALLEY-SAN GORGONIO PASS Corridor Rail Service Status/Next Ste ps • The State of C a li forn ia D ivision of Rail (Caltrans) has updated the State Rail Plan and has incl uded the se rv ice a potential new service. The service was also included in previous ve rs io ns o f th e State Rail Plan for approximately 10 years. • In early 201 3, C al tra ns co mpleted an Alternatives Analys is Study on the Coachella Valley that id e ntifi ed the p urpose and need of the project and showed strong potential tra v el m ark e ts. • Local comm u ni tie s' suppo rt is growing and local and regional officials are advocating fo r th e ne w se rvice. • CVAG is work in g co o peratively with local agencies to set aside some initial transportatio n f u ndi n g t o support the project. • RCTC is worki ng in co ord i nation with Caltrans, FTA, and CVAG to initiate the next step in the p la n ni ng p roc e ss. This comprehensive Service Development Plan will include deta il e d ri d e rshi p and cost estimates . • Once the Se rv ce D e velop ment Plan is complete the project will need to proceed with Environ m e nta l D ocu ments and after those are approved it will be eligible to compete for f ed e ral rail f u nding grants . Task 1: Project Work Plan & Outreach Plan Defin e Project A p proach Identify Stakeholder Outreach Task 2: Preliminary Service Planning and Alternatives Identify Servi ce Patterns/ A lternat ives Envi ro n mental O utreach an d Sc o pin g Develop Ridership and Cost Projections Identify Impacts and Mitigations Task 4: Service Development Plan Finali ze Plann ing Documents to be eligible for Federal Funds CALIFORNIA INTERCITY PASSENGER RAIL LEADERSHIP COALITION Joint Position on CAP & TRADE Revenues • We urge recognition of intercity passenger rail as an important component of Cap and Trade distribution and urge a discrete allocation of 10%. o To provide a secure and stable source of funding for intercity passenger rail corridors , a significant, dedicated portion of Cap and Trade Funds should be allocated to these services- -similar to how current Cap and Trade proposals establish discrete allocations of these funds to the High Speed Rail program and for transit service throughout the state . o We appreciate the Administration 's recognition that California operates the most successful state-supported intercity rail program in the nation by including support for commuter , urban , and intercity rail services in the projected $1.25 billion in Cap & Trade funds in FY 13/14 and FY 14/15. o We strongly urge that any adopted legislation include a continuous 10% appropriation of Cap and Trade funds to intercity passenger rail corridors . • The California Intercity Passenger Rail (CIPR) services represent more than 40% of all annual passenger-miles traveled in the state's passenger railroad network and the CIPR program has become an integral part of California's transportation network, which helps support the state's clean air goals (AB32) and sustainable community strategies (58375). o Linking California's cities with 61 rail stations and 122 additional bus stop locations , CIPR services are an important transportation alternative that promotes transit-oriented development throughout California. o With the three existing CIPR services currently eliminating 355 million vehicle miles traveled every year and 109 million pounds of carbon dioxide emissions, these state-supported services are valued assets in helping the state achieve its greenhouse gas reduction goals identified in AB32 , SB375 , and other adopted state legislation . Improved and expanded CIPR services will result in substantially increased benefits to all California residents and visitors . o In its role as an important "feeder" service, enhancing and expanding CIPR services is critical to the success of the proposed High Speed Rail program in California. • We are ready to participate. o For the reasons stated above, it is fundamentally important that the executive management of the CIPR services and emerging corridors participate in the discussions about how future Cap and Trade funds should be allocated , whether these funds are allocated by competitive grant, formula, at the discretion of the State Transportation Agency , or another method . o The CIPR Program is supported and endorsed by the Senate Select Committee on Passenger Rail , which has members representing all current and future CIPR services . Spring 20 14 Existing Stat~upportad. Intercity Panclnger Ran Capitol Corridor San Joaquin Pacific Surll~ Emarglng Corridors •••-••• Coast Daylight Route Capitol Corridor Extension -•••• •• Coachella Valley Route ..... Riverside 1>,.o lndlo CA INTERCITY PASSENGE R AI L LEADERSHIP COALITION San Joaquin ...... "'""" AlldMrity Dan Leavitt Regional Manager 209.944.6266 ace rail.com LOS SAN Jennifer Bergener Managing Director 714.560 .5462 lossan.org David Kutro sky Ma naging Director 5 10.464 .6993 c apit olcorridor.org A CRCC c o .. t ra ll eoordlDlllDg co1,,.cll Pete Rodgers Program Manager 805.781-5712 slocog.org Sheldon Peterson Rail Manager 951.787 .7141 rctc.org AGENDA ITEM 5 MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION EASTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Monday, October 7, 2013 MINUTES 1. CALL TO ORDER The meeting of the Eastern Riverside County Programs and Projects Committee was called to order by Chair Terry Henderson at 10:38 a.m., at 73-710 Fred Waring Drive, Suite 119, Palm Desert, California, 92260 and teleconference at Blythe City Hall, 235 N. Broadway Street, Room A, Blythe, CA 92555. 2. PLEDGE OF ALLEGIANCE At this time, Commissioner Greg Pettis led the Eastern Riverside County Programs and Projects Committee in a flag salute. 3. ROLL CALL Members/ Alternates Present Joseph DeConinck Ginny Foat Eduardo Garcia Douglas Hanson Jan Harnik Terry Henderson Scott Hines Scott Matas Glenn Miller Greg Pettis 4. PUBLIC COMMENTS Members Absent John J. Benoit There were no requests to speak from the public. 5. APPROVAL OF MINUTES-AUGUST 29, 2011 M/S/C (Pettis/Matas) to approve the minutes of August 29, 2011, as submitted. RCTC ERC Programs and Projects Committee Minutes October 7, 2013 Page 2 6. ADDITIONS/REVISIONS There were no additions or revision to the agenda. 7. RAIL SERVICE THROUGH THE PASS AREA TO THE COACHELLA VALLEY Sheldon Peterson, Rail Manager, presented the details of the scope of the rail service through the pass area to the Coachella Valley project. In response to Commissioner questions regarding which ridership model will be used, Sheldon Peterson stated the AECOM model and the SCAG model will be used for inner city and local passenger trips. He also requested a letter of support from each city for daily inner city service. John Standiford, Deputy Executive Director, stated this item will be taken to the Commission meeting on Wednesday and the Commission will come back next month with more details. Robert Manning, rail advocate, responded to questions concerning the need for additional rail to the Coachella Valley. M/S/C {Foat/Matas) to: 1) Approve the Memorandum of Understanding (MOU) No. 14-25-034-00 between the Commission and the Coachella Valley Association of Governments {CVAG) whereby the Commission shall establish and administer the Coachella Valley Rail fund; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize staff to set aside Transportation Development Act {TOA) State Transit Assistance {STA) funding to be utilized specifically for the Coachella Valley in support of the rail program at specified multi-year levels; 4) Approve a bus/rail funding split and the terms and conditions; 5) Approve an amendment to the Commission's Commuter Rail Short Range Transit Plan {SRTP) to set aside $4.2 million of Proposition 18 Public Transportation Modernization, Improvement, and Service Enhancement Account (PTMISEA) funds to initiate Coachella Valley Rail through the Pass Area; 6) Authorize staff to seek approval to apply for a letter of no prejudice (LONP) for Proposition 18 funds to allow the Commission to expend local funds prior to the state bond sale and disbursement; 7) Authorize staff to establish a Coachella Valley Rail specific SRTP and establish a separate funding and accounting process at the Commission; RCTC ERC Programs and Projects Committee Minutes October 7, 2013 Page 3 8) Authorize the Executive Director to execute a letter of understanding with Caltrans in support of project development; 9) Adopt Resolution No. 13-042, "Resolution of Support to Establish Daily Intercity Rail Service from Los Angeles to the Coachella Valley via the Pass Area"; 10) Receive an update on next steps for Coachella Valley Rail project development, including the service development plan, alternatives analysis, and discussion on potential for future environmental analysis; and 11) Forward to the Commission for final action. 9. COMMISSIONERS/ STAFF REPORT There were no Commissioner or staff reports. 10. ADJOURNMENT There being no further business for consideration by the Eastern Riverside County Programs and Projects Committee, the meeting was adjourned at 11:09 a.m. The next meeting of the Eastern Riverside County Programs and Projects Committee is scheduled for November 4, 2013, at 10:30 a.m. Respectfully submitted, Jennifer Harmon Clerk of the Board AGENDA ITEM 7 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: May 5, 2014 TO: Eastern Riverside County Programs and Projects Committee -------1 FROM: Sheldon Peterson, Rail Manager THROUGH: Robert Yates, Multimodal Services Director SUBJECT: Agreement for Forecasting Services for the Coachella Valley-San Gorgonio Pass Rail Corridor Service Development Plan STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement No. 14-25-072-00 to HDR Engineering, Inc. (HDR) for forecasting services for the Coachella Valley-San Gorgonio Pass Rail Corridor (Corridor) Service Development Plan (SDP} in the amount of $1,697,645, plus a contingency amount of $150,000 for a total amount not to exceed $1,847,645; 2} Authorize staff to proceed with the Phase 1 work, including Tasks 1 and 2 through a limited notice to proceed (NTP} in the amount of $1,847,645; 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 to approve contingency work as may be required for the project; 5} Authorize staff to negotiate the scope and fee for Phase 2 (Tasks 3 and 4} and to bring back to the Commissior.i, at a later date, a separate request for authorization to execute a separate contract amendment to proceed to the next phase of work, if warranted; and 6} Forward to the Commission for final action. BACKGROUND INFORMATION: Providing some form of passenger rail service to the Corridor has been a long-standing priority for more than two decades with the first studies completed in the early 1990's. Additional studies have been performed over time with one of the more recent efforts completed in April 2010. This was later followed in May 2013 with the state of California Department of Transportation (Caltrans} Division of Rail completing the first phase of a planning study and initial alternatives analysis for the Corridor. This planning study was very supportive of the potential for a viable service, and future studies would then be able to expand on the Caltrans' effort by determining ridership demand and more detailed cost estimates. Agenda Item 7 1 Caltrans also included an updated project description and analysis of the Corridor service in the latest state rail plan, which was approved on September 5, 2013, by the California State Transportation Agency. The next update will take place in 2017. DISCUSSION: As the result of past studies from the Coachella Valley Association of Governments {CVAG), Commission, and CalTrans, it was determined that using state-supported intercity trains presents the best alternative for developing passenger rail service along the Corridor. The 141-mile trip between Los Angeles and the Coachella Valley would cross four counties. Stops and station locations are yet to be determined. Due to the trip length and time of approximately three hours, Amtrak-style state-supported intercity service with larger seats and food service would be more appealing to the riders. While the Corridor was part of the state's planning study effort, Caltrans Division of Rail was also very clear it did not have the funding in place to further analyze the Corridor. Accordingly, and to further the project development of the Corridor and to leverage the work already conducted by the state, a number of key initiatives were approved by the Commission in October 2013 and subsequently carried out. These included: • Establishment of a memorandum of understanding (MOU) between CVAG and the Commission that establishes cooperation on the Corridor and a Transportation Development Act (TDA) bus/rail funding split for transit funding; • Authorization of $4.2 million of Proposition 18 Public Transportation, Modernization, Improvement, and Service Enhancement Account (PTMISEA) funds to be used to initiate Corridor planning and limited capital improvements. The funding confirmation and approval notice from Caltrans was received on April 16, 2014; • Agreement and the execution of a letter of understanding between the Commission and Caltrans Division of Rail in which both agencies agreed on the performance of certain modeling efforts. Caltrans staff initiated its contractor's efforts to begin work on the ridership modeling for the project; and • Approval of the Commission's Resolution of Support for the Corridor and initiation of outreach to get project letters of support. There are now over 18 cities and organizations who have submitted letters with more to. come. Next Step -The Service Development Plan The true success of this effort will be to develop comprehensive and convincing planning documents that will allow the Corridor to compete for limited state and federal rail funds. To move in this direction, the Commission will need to construct a SDP for the Corridor meets the following requirements: • Clearly demonstrate the purpose of and need for the project; Agenda Item 7 2 • Analyze alternatives for the proposed passenger rail service; • Identify the alternative that best meets the purpose and need; • Identify the discrete capital projects required to support the service; and • Demonstrate the operational and financial feasibility of the project. The SDP process was developed by the Federal Railroad Administration {FRA), and the rulemaking and guidance for it are contained in the Federal Register. Both Caltrans and FRA have been working to either develop or approve SDPs for various corridors across the state and country; therefore, it was clear a request for proposal (RFP) with a very specific scope of work would need to be developed in order to procure a consultant with the appropriate level of experience. Staff met with both Caltrans Division of Rail and the FRA to determine the proper mix of the required elements for a scope of work. Both agencies were supportive and offered some very helpful suggestions on how the Commission could best conduct this planning effort. To meet the needs of the project, the scope has been developed with multiple phases and tasks that allow for clear decision points and opportunities for staff to engage the Commission for these decisions. Phase 1 includes two required tasks. For Task 1, the consultant will need to develop the detailed overall project work plan, project approach, and project outreach plan. Task 2 will require the consultant to develop the detailed preliminary service plan and alternatives analysis. This task includes development of the comprehensive ridership and cost estimates that will provide the level of detail needed to make a responsible planning decision on the financial viability of the proposed service. The results of Phase 1 will be brought back to the Commission for review and a determination of the project's viability to continue on to Phase 2. In Phase 2, the process will include Task 3, which consists of the necessary National Environmental Policy Act {NEPA)/California Environmental Quality Act {CEQA) documentation. At issue and still to be determined is the actual scope of the environmental documentation needed for the project. This will be determined by the preliminary planning conducted in Task 2, and, as such, staff will need to negotiate the scope and fee and return to the Commission for further action. The final step in Phase 2 will be Task 4 to develop the comprehensive SDP that will be submitted to Caltrans and the FRA for approval. Again, the exact scope and nature of this work will be determined by the results of the previous tasks and returned to the Commission for action either in conjunction with the environmental documentation task or separately. Staff would like to point out the scope of work in the RFP included these tasks and there were two reasons for doing so. First, given the critical analysis that forms the underlying plan, staff felt that having to go out to bid for another consultant would result in a duplication of work since it might be possible a second consultant would be procured in a competitive bid process for the second phase of the work. Staff was concerned a new consultant would have a difficult time with using analysis and data born by a different consultant. Additionally, in that the scope Agenda Item 7 3 of work was included in the RFP, the Commission is in possession of pricing information and staff now has a better idea of the nature and cost for the remainder of the work to be performed. Procurement Process Pursuant to Government Code 4525 et seq, selection of architect engineer and related services shall be on the basis of demonstrated competence and on professional qualifications necessary for the satisfactory performance of the services required. Therefore, staff used the qualification method of selection for the procurement of these services. Evaluation criteria included elements such as qualifications of firm, qualifications of personnel, understanding and approach, and the ability to respond to the requirements set forth under the terms of a RFP. RFP No. 14-25-072-00 for forecasting services for the Corridor SDP was released by the Commission on February 14. 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. Using data from PlanetBids, postcards were sent to 13 firms, one of Agenda Item 7 4 which is located in Riverside County. Using PlanetBids, 68 firms downloaded the RFP, 8 of these firms are located in Riverside County. A pre-bid conference was held on February 19 and was attended by 15 firms, of which five firms are located in Riverside County. Staff responded to all questions submitted by potential proposers prior to the February 27 clarification deadline date. Five firms -AECOM (Los Angeles); CH2M Hill, Inc. (Riverside); HDR (Riverside); Parsons Brinckerhoff, Inc. (San Bernardino); and STV Incorporated (Rancho Cucamonga) -submitted responsive and responsible statements of qualifications {SOQ) prior to the 2:00 p.m. submittal deadline on March 20. Utilizing the evaluation criteria set forth in the RFP, the firms were evaluated and scored by an evaluation committee comprised of Commission and Bechtel staff. Based on the evaluation committee's assessment of the written proposals and pursuant to the terms of the RFP, the evaluation committee shortlisted and invited all five firms to the interview phase of the evaluation and selection process. Interviews were conducted on April 10. The evaluation committee conducted a subsequent evaluation of each firm, based on both written and interview components presented to the evaluation committee by each proposer. Accordingly, the evaluation committee recommends contract award to HDR for forecasting services for the Corridor SDP, as it earned the highest total evaluation score. NEXT STEPS: Staff negotiated the scope (including the appropriate level of effort, labor categories/mix, etc.), cost, and schedule proposal with HDR for the project services for Phase 1 and has established a fair and reasonable price. The Phase 1 proposal cost is $1,697,645 with a contingency of $150,000, for a total amount not to exceed $1,847,645. Upon Commission approval, the agreement between the Commission and HDR will be executed and a NTP issued. At that point, staff will engage HDR to organize the project work plan and begin the outreach process. HDR proposed a 12-month schedule for the completion of Phase 1 and tasks 1 and 2. Upon completion of Phase 1, the results will be brought back to the Commission for review and determination if the project will move forward into Phase 2. A new cost proposal and estimate will be provided at that time to determine the appropriate amount for a contract amendment with HDR. This multi-phased approach will allow the Commission to provide direct input into the process and provide for a more cost effective project if it is determined to proceed with Phase 2. With respect to the funding of Phase 2, the grant funds previously awarded for this project as approved by the state are only sufficient for funding $1.5 million of the Phase 1 effort. Environmental work is explicitly prohibited by the Proposition 1B funding guidelines. As such, other sources will need to be found in order to make a funding decision for Phase 2. Agenda Item 7 5 In Fiscal Year Budget: Yes N/A Financial Inform ation Year: /14 FY 2013 FY 2014/ 15+ Source of Funds: PTMISEA and Coachella Valley TD A Rail Split GL/Project Accounting No.: Fiscal Procedures Approved: 245 25 004202 65520 245 25 454199 65520 Attachment: Draft Agreement No. 14-25-072-00 Agenda Item 7 6 I Amount: $ 150,000 $ 1,697,645 Budget Adjustment: No N/A I Date: I 04/28/2014 Agreement No. 14-25-072-00 PROFESSIONAL SERVICES AGREEMENT WITH PROPOSITION 1 B ASSISTANCE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH HOR ENGINEERING, INC. FOR ""'· FORECASTING SERVICEShEOR THE COACHELLA VALLEY-SAN GORGONICJ'PASS RAIL CORRIDOR SERVICE DEVELOPMEt.ff'BtAN 1. PARTIES AND DATE. This Agreement is made anc?~Eitered into this _ day pf , 2014, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and HOR ENGINliE~1.t:'JG, INC. ("Consultant"), a Nebraska'corporation. ',', ··.'.)zj'.;;' , , 2. RECITALS. 2.1 pn Nd\'ternber 8, 1:~88, the \(,(>!~rs of Riverside County approved ·d . . •11· ........ . Measure A author,i~iog the c9Hection of"~.one:·half per:C,er:llt (%%) retail transactions and use tax (the "tax") fq:Jt.1nd transportation progfiams and Hl'lprovements within the County of Riverside, and adopting the f;{iverside County Transportation Improvement Plan (the "Plan") ./,;, :i Ai~:'· 2.2 P,ursuant ·(t? .. Public Utility ''code Sections 240000 et seq., the Comnil$sion is authorize.Q. to allodate the proceeds of the Tax in furtherance of the Plan. 2.3 On November 5, 2002, the voters of Riverside County approved an extension of th~l Measure A1!1tax for an additional thirty (30) years for the continued funding of transP'6rtation andjfJ)provements within the County of Riverside. '#;fr;;> 2.4 A'source of funding for payment for professional services provided under this Agreement is' state funds from Proposition 1 B administered by the California Department of Transportation ("Caltrans") through the Public Transportation, Modernization, Improvement, and Service Enhancement Account ("PTMISEA"). This Agreement shall not be deemed to be approved by the Commission until the certification shown in Exhibit "E" attached hereto and incorporated herein by reference, is executed. 2.5 Consultant desires to perform and assume responsibility for the provision of certain professional services required by the Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in 7 providing L_INSERT TYPE OF SERVICES__J to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. 2.6 The Commission desires to engage Consultant to render such services for the L_INSERT NAME OF PROJECT __J ("Project"), as set forth in this Agreement. 3. TERMS. 3.1 General Scope of Services. Consultant shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise, and incidental and customary work necessary to fully and adequately supply the L_INSERT TYPE OF SERVICES__J necessary for the Project ("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 Commencement of Services. L_USE THIS PARAGRAPH IF NOTICE TO PROCEED HAS BEEN ISSUED__J Commission has authorized Consultant to commence performance of the Services by a "Notice to Proceed" dated ______ . Consultant agrees that Services already performed pursuant to the "Notice to Proceed" shall be governed by all the provisions of this Agreement, including all indemnification and insurance provisions. As a result of the Proposition 1 B funding for this Project, and to the extent Caltrans procedures apply in connection therewith, issuance of a Notice to Proceed may be contingent upon completion and approval of a pre-award audit. Any questions raised during the pre-award audit shall be resolved before the Commission will consider approval of this Agreement. The state aid provided under this Agreement is contingent on meeting all Federal requirements and could be withdrawn, thereby entitling the Commission to terminate this Agreement, if the procedures are not completed. The Consultant's files shall be maintained in a manner to facilitate process reviews. L_USE THIS PARAGRAPH IF NO NOTICE TO PROCEED HAS BEEN ISSUED__J The Consultant shall commence work upon receipt of a written "Notice to Proceed" from the Commission. As a result of the Proposition 1 B funding for this Project, and to the extent Caltrans procedures apply in connection therewith, issuance of a "Notice to Proceed" may be contingent upon completion and approval of a pre- award audit. Any questions raised during the pre-award audit shall be resolved before the Commission will consider approval of this Agreement. The Proposition 1 B aid provided under this Agreement is contingent on meeting all Federal requirements and could be withdrawn, thereby entitling the Commission to terminate this Agreement, if the procedures are not completed. The Consultant's files shall be maintained in a manner to facilitate process reviews. 17336.00603\8581981.2 8 3.3 Term. The term of this Agreement shall be from the date of execution of this Agreement or the date of issuance of the "Notice to Proceed" by the Commission, whichever occurs first, to L_INSERT ENDING DATE__J, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. 3.4 Commission's Representative. The Commission hereby designates the Commission's 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 authority to act on behalf of the Commission for all purposes under this Agreement. Commission's Representative shall also review and give approval, as needed, to the details of Consultant's work as it progresses. Consultant shall not accept direction or orders from any person other than the Commission's Representative or his or her designee. 3.5 Consultant's Representative. Consultant hereby designates L_INSERT NAME OR TITLE__J to act as its Representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to act on behalf of Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his professional 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. Consultant shall work closely and cooperate fully with Commission's Representative and any other agencies which may have jurisdiction over, or an interest in, the Services. Consultant's Representative shall be available to the Commission staff at all reasonable times. Any substitution in Consultant's Representative shall be approved in writing by Commission's Representative. 3.6 Substitution of Key Personnel. Consultant has represented to the 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 upon written approval by the Commission. In the event that the Commission and Consultant cannot agree as to the substitution of the key personnel, the Commission shall be entitled to terminate this Agreement for cause, pursuant to the provisions of Section 3.14. The key personnel for performance of this Agreement are: L_LIST NAMES AND TITLES__J. 3. 7 Preliminarv Review of Work. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Agreement shall be submitted to the Commission's Representative in draft form, and the Commission may require revisions of such drafts prior to formal submission and approval. In the event plans and designs are to be developed as part of the Project, final detailed plans and designs shall be contingent upon obtaining environmental 17336.00603\8581981.2 9 clearance as may be required in connection with Proposition 1 B funding. In the event that Commission's Representative, in his sole discretion, determines the formally submitted work product to be not in accordance with the standard of care established under this contract, Commission's Representative may require Consultant to revise and resubmit the work at no cost to the Commission. 3.8 Appearance at Hearings. If and when required by the Commission, Consultant shall render assistance at public hearings or other meetings related to the Project or necessary to the performance of the Services. However, Consultant shall not be required to, and will not, render any decision, interpretation or recommendation regarding questions of a legal nature or which may be construed as constituting a legal opinion. 3.9 Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Consultant further represents and warrants to the Commission that 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 the 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. Any employee of Consultant or its sub- consultants 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 from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.10 Opportunity to Cure. Commission may provide Consultant an opportunity to cure, at Consultant's expense, all errors and omissions which may be disclosed during Project implementation. Should Consultant fail to make such correction in a timely manner, such correction may be made by the Commission, and the cost thereof charged to Consultant. 3.11 Inspection of Work. Consultant shall allow the Commission's Representative to inspect or review Consultant's work in progress at any reasonable time. 17336.00603\8581981.2 10 3.12 Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term set forth in Section 3.3, the Commission shall give Consultant a written Notice of Final Acceptance. Upon receipt of such notice, Consultant shall incur no further costs hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily completed all Services required under the terms of this Agreement. In the event copyrights are permitted under this Agreement, then in connection with Proposition 1 B funding, it is hereby acknowledged and agreed that Caltrans shall have the royalty-free non-exclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for governmental purposes. 3.13 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. For example, and not by way of limitation, Consultant shall keep itself fully informed of and in compliance with all implementing regulations, design standards, specifications, previous commitments that must be incorporated in the design of the Project, and administrative controls including those of Caltrans. In compliance with Caltrans procedures, Consultant and any subconsultant under it shall agree that (a) Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allowability of individual project cost items and (b) the Federal administrative procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments shall apply to this Contract. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the 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. 3.14 Termination. 3.14.1 Notice; Reason. Commission may, by written notice to Consultant, terminate this Agreement, in whole or in part, at any time by giving written notice to Consultant of such termination, and specifying the effective date thereof ("Notice of Termination"). Such termination may be for Commission's convenience or because of Consultant's failure to perform its duties and obligations under this Agree- ment, including, but not limited to, the failure of Consultant to timely perform Services pursuant to the Schedule of Services described in Section 3.15 of this Agreement. Consultant may not terminate this Agreement except for cause. 17336.00603\8581981.2 11 3.14.2 Discontinuance of Services. Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein, and deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 3.14.3 Effect of Termination For Convenience. If the termination is to be for the convenience of the Commission, the Commission shall compensate Consultant for Services fully and adequately provided through the effective date of termination. Such payment shall include a prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit on unperformed Services. Consultant shall provide documentation deemed adequate by Commission's Representative to show the Services actually completed by Consultant prior to the effective date of termination. This Agreement shall terminate on the effective date of the Notice of Termination. 3.14.4 Effect of Termination for Cause. If the termination is for cause, Consultant shall be compensated for those Services which have been fully and adequately completed and accepted by the Commission as of the date the Commission provides the Notice of Termination. In such case, the Commission may take over the work and prosecute the same to completion by contract or otherwise. Further, Consultant shall be liable to the Commission for any reasonable additional costs incurred by the Commission to revise work for which the Commission has compensated Consultant under this Agreement, but which the Commission has determined in its sole discretion needs to be revised, in part or whole, to complete the Project because it did not meet the standard of care established in Section 3.9. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 3.14.5 Cumulative Remedies. The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 3.14.6 Procurement of Similar Services. In the event this Agreement is terminated, in whole or in part, as provided by this Section, the Commission may procure, upon such terms and in such manner as it deems appropriate, services similar to those terminated. 3.14.7 Waivers. Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. 3.15 Schedule and Progress of Services. 17336.00603\8581981.2 12 ---------------------------------------------------- 3.15.1 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 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 Commission's Representative, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.15.2 Modification of the Schedule. Consultant shall regularly report to the Commission, through correspondence or progress reports, its progress in providing required Services within the scheduled time periods. Commission shall be promptly informed of all anticipated delays. In the event that Consultant determines that a schedule modification is necessary, Consultant shall promptly submit a revised Schedule of Services for approval by Commission's Representative. 3.15.3 Trend Meetings. Consultant shall conduct trend meetings with the Commission's Representative and other interested parties, as requested by the Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a standard day and time. These trend meetings will encompass focused and informal discussions concerning scope, schedule, and current progress of Services, relevant cost issues, and future Project objectives. Consultant shall be responsible for the preparation and distribution of meeting agendas to be received by the Commission and other attendees no later than three (3) working days prior to the meeting. 3.15.4 Progress Reports. As part of its monthly invoice, Consultant shall submit a progress report, in a form determined by the Commission, which will indicate the progress achieved during the previous month in relation to the Schedule of Services. Submission of such progress report by Consultant shall be a condition precedent to receipt of payment from the Commission for each monthly invoice submitted. 3.16 Delay in Performance. 3.16.1 Excusable Delays. Should Consultant be delayed or prevented from the timely performance of any act or Services required by the terms of the Agreement by reason of acts of God or of the public enemy, acts or omissions of the Commission or other governmental agencies in either their sovereign or contractual capacities, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather, performance of such act shall be excused for the period of such delay. 3.16.2 Written Notice. If Consultant believes it is entitled to an extension of time due to conditions set forth in subsection 3.16.1, Consultant shall pro- vide written notice to the Commission within seven (7) working days from the time 17336.00603\8581981.2 13 Consultant knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of Consultant to provide such timely notice shall constitute a waiver by Consultant of any right to an excusable delay in time of performance. 3.16.3 Mutual Agreement. Performance of any Services under this Agreement may be delayed upon mutual agreement of the Parties. Upon such agreement, Consultant's Schedule of Services shall be extended as necessary by the Commission. Consultant shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 3.17 Status of Consultant/Subconsultants. 3.17.1 Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and not as an employee, agent or representative of the 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 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 and as required by law. Consultant shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, disability insurance, and workers' compensation insurance. 3.17.2 Prevailing Wages. By its execution of this Agreement, Consultant certifies 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 ~ ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. The Services hereunder include construction surveying and other services that required the payment of prevailing wage rates. Therefore, Consultant agrees to fully comply with such Prevailing Wage Laws. Copies of the prevailing rate of per diem wages that are on file at the Commission's offices. 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. Certified Payrolls are to be submitted whenever required by Prevailing Wage laws. 17336.00603\8581981.2 14 3.17.3 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. 3.17.4 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. If Consultant wishes to use a firm as a subcontractor which is not specified in the proposal upon which this Agreement was awarded, prior written approval must be obtained from the Commission. The Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Consultant has, as part of its proposal, identified certain companies/firms that will be subconsultants utilized by Consultant ("Subconsultants") for Project delivery. A list of said Subconsultants is attached hereto as Exhibit "C" Part 2 and made a part hereof. The Commission hereby approves the use by Consultant of the Subconsultants identified in Exhibit "C" Part 2. In the event and prior to the replacement of any Subconsultant approved herein, the Consultant shall seek and obtain the Commission's written approval. Exhibit "C" Part 2 also sets forth the rates at which each Subconsultant shall bill the Consultant for Services and that are subject to reimbursement by the Commission to Consultant. Additional Direct Costs, as defined in Exhibit "C" Part 1 shall be the same for both the Consultant and all subconsultants, unless otherwise identified in Exhibit "C" Part 2. Consultant acknowledges that approval of Consultant's utilization of the identified Subconsultants together with the incorporation of Subconsultants' rate schedules and cost proposals into this Agreement shall in no way be construed to create any contractual relationship between any Subconsultant and the Commission. The Subconsultant rate schedules and cost proposals contained herein are for accounting purposes only. In the event that any Subconsultant shall bring any action, claim or proceeding purporting to enforce any right purportedly arising under this Agreement, the Consultant shall be responsible for the Commission's reasonable legal fees without regard to the merits of any such claim. 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"). 17336.00603\8581981.2 15 Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission's sole risk. 3.18.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media ("Intellectual Property") prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. 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. 17336.00603\8581981.2 16 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 Indemnification. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold Commission, its directors, officials, officers, employees, consultants, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to alleged negligent acts, omissions, or willful misconduct of 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 consequential damages, expert witness fees, and 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 Commission, its directors, officials, officers, employees, consultants, agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against Commission or its directors, officials, officers, employees, consultants, agents, or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse Commission and its directors, officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses and costs, including reasonable attorney's fees, incurred by each of them in connection therewith 17336.00603\8581981.2 17 or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Commission, its directors, officials officers, employees, consultants, agents, or 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. Consultant's obligations as set forth in this Section 3.19 shall survive expiration or termination of this Agreement. 3.20 Insurance. 3.20.1 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 addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.20.2 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); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) if Consultant has employees, 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 and advertising 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) Workers' Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of $1,000,000 per accident for bodily injury or disease. 3.20.3 Professional Liability. Consultant shall procure and maintain, and require its subconsultants to procure and maintain, for a period of five (5) 17336.00603\8581981.2 18 years following completion of the Project, errors and om1ss1ons liability insurance appropriate to their profession. Such insurance shall be in an amount not less than $2,000,000 per claim. 3.20.4 Aircraft Liability Insurance. Prior to the direct or indirect use of any civil aircraft to provide Services under this Agreement, Consultant shall procure and maintain, or cause to be procured and maintained, aircraft liability insurance or equivalent form, with a single limit of not less than $5,000,000 per each occurrence. Such insurance shall include coverage for owned, hired and non-owned aircraft and passengers, and shall name, or be endorsed to name, the Commission, its directors, officials, officers, employees, consultants and agents as additional insureds with respect to the Services or operations performed by or on behalf of the Consultant. 3.20.5 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. The general 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 Services or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; 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. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (C) Workers' Compensation and Employers Liability Coverage. 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. 17336.00603\8581981.2 19 (D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the Commission; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the Commission, its directors, officials, officers, employees and agents. 3.20.6 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. 3.20.7 Separation of Insureds: No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the Commission, its directors, officials, officers, employees, and agents. 3.20.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current AM. Best's rating no less than A:Vlll, licensed to do business in California, and satisfactory to the Commission. 3.20.9 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.20.10 Other Insurance. At its option, the Commission may require such additional coverage(s), limits and/or the reduction of deductibles or retentions it considers reasonable and prudent based upon risk factors that may directly or indirectly impact the Project. In retaining this option Commission does not warrant Consultant's insurance program to be adequate. Consultant shall have the right to purchase insurance in addition to the insurance required in this Section. 3.21 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 17336.00603\8581981.2 20 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. 3.22 Fees and Payment. 3.22.1 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 and incorporated herein by reference. The Total Compensation shall be on the basis of direct costs plus a fixed fee as further set forth in Exhibit "C" and is not to exceed $[INSERT DOLLAR AMOUNll 3.22.2 Payment of Compensation. Consultant shall submit a monthly itemized 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. Charges specific to each Milestone listed in the Schedule of Services shall be listed separately on an attachment to each statement. Each statement shall be accompanied by a monthly progress report and spreadsheets showing hours expended for each task for each month and the total Project to date. Each statement shall include a cover sheet bearing a certification as to the accuracy of the statement signed by the Consultant's Project Manager or other authorized officer. 3.22.3 Additional Work. Any work or activities that are in addition to, or otherwise outside of, the Services to be performed pursuant to this Agreement shall only be performed pursuant to a separate agreement between the parties. Notwithstanding the foregoing, the Commission's Executive Director may make a change to the Agreement, other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a change which is "outside the scope" of the Agreement; in other words, work which should not be regarded as having been fairly and reasonably within the contemplation of the parties when the Agreement was entered into. An example of a change which is not a Cardinal Change would be where, in a contract to construct a building there are many changes in the materials used, but the size and layout of the building remains the same. (a) In addition to the changes authorized above, a modification which is signed by Consultant and the Commission's Executive Director, 17336.00603\8581981.2 21 other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable adjustment to the Agreement price, delivery schedule and other terms resulting from the issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other agreements of the parties modifying the terms of this Agreement ("Bilateral Contract Modification"). (b) Consultant shall not perform, nor be compensated for any change, without written authorization from the Commission's Executive Director as set forth herein. In the event such a change authorization is not issued and signed by the Commission's Executive Director, Consultant shall not provide such change. 3.22.4 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission's Representative. 3.23 Prohibited Interests. 3.23.1 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, the Commission shall have the right to rescind this Agreement without liability. 3.23.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of the Commission, during the term of his or her service with the Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.23.3 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. 3.23.4 Covenant Against Contingent Fees. As required in connection with Proposition 1 B funding, the Consultant warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent 17336.00603\8581981.2 22 upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Commission shall have the right to terminate this Agreement without liability pursuant to Section 3.14, or at its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 3.23.5 Covenant Against Expenditure of Local Agencv. State or Federal Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and belief no state, federal or local agency appropriated funds have been paid, or will be paid by or on behalf of the Consultant to any person for the purpose of influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the award of any state or federal contract, grant, loan, or cooperative agreement, or the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement. a) If any funds other than federal appropriated funds have been paid, or will be paid to any person for the purpose of influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this Agreement, the Consultant shall complete and submit the attached Exhibit "F", Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with the attached instructions. b) The Consultant's certification provided in this section is a material representation of fact upon which reliance was placed when this Agreement was entered into, and is a prerequisite for entering into this Agreement pursuant to Section 1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the disclosure and certification requirements set forth in Section 1352, Title 31, US. Code may result in a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. c) The Consultant also agrees by signing this Agreement that he/she shall require that the language set forth in this Section 3.23.5 be included in all Consultant subcontracts which exceed $100,000, and that all such subcontractors shall certify and disclose accordingly. 3.23.6 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. 3.24 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged 17336.00603\8581981.2 23 under this Agreement. As required in connection with Proposition 1 B funding, the Federal Acquisition Regulations in Title 48, CFR 31 shall be the governing factors regarding allowable elements of cost. All such records shall be clearly identifiable. The accounting system of Consultant and each subconsultant under it shall conform to Generally Accepted Accounting Principles (GAAP). Consultant shall allow a representative of the Commission, the State, the California State Auditor or any duly authorized representative of the State during normal business hours to examine, audit, and make transcripts or copies of any and all ledgers and books of account, invoices, vouchers, canceled checks, and any other records or documents created pursuant to this Agreement. All such information shall be retained by Consultant for at least three (3) years following termination of this Agreement. Following final settlement of the contract accounts with Caltrans under this Agreement, such records and documents may be microfilmed at the option of the Commission, but in any event shall be retained for said three (3) year period after processing of the final voucher by Caltrans. Consultant and each subconsultant will permit access to all records of employment, employment advertisements, employment application forms, and other pertinent data and records by the State Fair Employment Practices and Housing Commission, or any other agency of the State of California designated by the State, for the purpose of any investigation to ascertain compliance with Proposition 1 B funding requirements. Any project cost for which the Consultant has received payment that are determined by subsequent audit to be unallowable under 2 CFR 225, 48 CFR, Chapter 1, Part 31 or 49 CFR, Part 18, are subject to repayment by the Consultant to the State by and through the Commission. Should the Consultant fail to repay moneys due to the State within thirty (30) days of demand, or within such other period as may be agreed in writing between the Parties hereto, the Commission is authorized to intercept and withhold future payments due the Consultant hereunder. 3.25 Equal Opportunity Emplovment. Consultant 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, 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. 3.26 Right to Employ Other Consultants. Commission reserves the right to employ other consultants in connection with the Project. Consultant shall cooperate fully with any other consultant engaged by the Commission on the Project. 3.27 Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 3.28 Attorneys' 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 attorneys' fees and, all other costs of such actions. 17336.00603\8581981.2 24 3.29 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.30 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. 3.31 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: CONSUL TANT: Attn: ------- COMMISSION: Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92501 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. 3.32 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. 3.33 Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.34 Entire Agreement. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof and supersedes all prior negotiations, agreements or understandings. 3.35 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. 3.36 Provisions Applicable When Proposition 1 B Funds Are Involved. When funding for the Services provided by this Agreement are provided, in whole or in part, from Proposition 1 B funds, Consultant shall fully and adequately comply with the 17336.00603\8581981.2 25 provisions included in Exhibit "D" (Proposition 1 B Requirements) attached hereto and incorporated herein by reference. 3.37 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 3.38 Survival. All rights and obligations hereunder that by their nature are to be performed after any expiration or termination of this Agreement shall survive any such expiration or termination. 3.39 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.40 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. 3.41 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.42 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. 3.43 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. 3.44 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 17336.00603\8581981.2 26 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. 3.45 Emolovment of Aoorentices. 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. 3.46 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.47 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] 17336.00603\8581981.2 27 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT WITH PROPOSITION 1 B ASSISTANCE IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: LINSERT NAME__J Chairman [NOT NEEDED IF APPROVED BY COMMISSION] By: Anne Mayer, Executive Director Approved as to Form: By: Best Best & Krieger LLP General Counsel 17336.00603\8581981.2 CONSULTANT By: Signature Name Title ATTEST: By: Its: Secretary 28 EXHIBIT "A" SCOPE OF SERVICES L_INSERT_J Exhibit A 17336.00603\8581981.2 29 EXHIBIT "8" SCHEDULE OF SERVICES L_JNSERT_J Exhibit B 17336.00603\8581981.2 30 EXHIBIT "C" COMPENSATION AND PAYMENT For the satisfactory performance and completion of the Services under this Agreement, the Commission will pay the Consultant compensation as set forth herein. 1. ELEMENTS OF COMPENSATION. Compensation for the Services will be comprised of the following elements: 1.1 Direct Labor Costs; 1.2 Fixed Fee; and 1.3 Additional Direct Costs. 1.1 DIRECT LABOR COSTS. Direct Labor costs shall be paid in an amount equal to the product of the Direct Salary Costs and the Multiplier which are defined as follows: 1.1.1 DIRECT SALARY COSTS Direct Salary Costs are the base salaries and wages actually paid to the Consultant's personnel directly engaged in performance of the Services under the Agreement. (The range of hourly rates paid to the Consultant's personnel appears in Section 2 below.) 1.1.2 MULTIPLIER The Multiplier to be applied to the Direct Salary Costs to determine the Direct Labor Costs is , and is the sum of the following components: 17336.00603\8581981.2 1.1.2.1 Direct Salary Costs 1.1.2.2 Payroll Additives The decimal ratio of Payroll Additives to Direct Salary Costs. Payroll Additives include all employee benefits, allowances for vacation, sick leave, and holidays, and company portion of employee insurance and social and retirement benefits, all federal and state payroll taxes, premiums for insurance which are measured by payroll costs, and other contributions and benefits imposed by applicable laws and regulations. Exhibit C-1 31 1.1.2.3 Overhead Costs The decimal ratio of allowable Overhead Costs to the Consultant firm's total direct salary costs. Allowable Overhead Costs include general, administrative and overhead costs of maintaining and operating established offices, and consistent with established firm policies, and as defined in the Federal Acquisitions Regulations, Part 31.2. Total Multiplier (sum of 1.1.2.1, 1.1.2.2, and 1.1.2.3) 1.2 Fixed Fee. A Fixed Fee of shall be paid to Consultant for Consultant's complete and satisfactory performance of this Agreement and all Services required hereunder. Commission shall pay the Fixed Fee in monthly installments based upon the percentage of the Services completed at the end of each billing period, as determined in the sole discretion of the Commission's Representative, or his or her designee. Consultant shall not be entitled to and shall forfeit any portion of the Fixed Fee not earned as provided herein. 1.3 ADDITIONAL DIRECT COSTS. Per Diem Car mileage Travel Computer Charges Photocopies Blueline LD Telephone Fax Photographs REIMBURSEMENT RATE [_insert charges__] $ /day $ /mile $ /trip $ /hour $ /copy $ /sheet $ /call $ /sheet $ /sheet Travel by air and travel in excess of 100 miles from the Consultant's office nearest to the Commission's office must have the Commission's prior written approval to be reimbursed under this Agreement. 2. DIRECT SALARY RATES Exhibit C-2 17336.00603\8581981.2 32 Direct Salary Rates, which are the range of hourly rates to be used in determining Direct Salary Costs in Section 1.1.1 above, are given below and are subject to the following: 2.1 Direct Salary Rates shall be applicable to both straight time and overtime work, unless payment of a premium for overtime work is required by law, regulation or craft agreement, or is otherwise specified in this Agreement. In such event, the premium portion of Direct Salary Costs will not be subject to the Multiplier defined in Paragraph 1.1.2 above. 2.2 Direct Salary Rates shown herein are in effect for one year following the effective date of the Agreement. Thereafter, they may be adjusted annually to reflect the Consultant's adjustments to individual compensation. The Consultant shall notify the Commission in writing prior to a change in the range of rates included herein, and prior to each subsequent change. POSITION OR CLASSIFICATION RANGE OF HOURLY RATES [_sample__] Principal Project Manager Sr. Engineer/Planner Project Engineer/Planner Assoc. Engineer/Planner Technician Drafter/GADD Operator Word Processor $ .00 -$ .00/hour $ .00 -$ .00/hour $ .00 -$ .00/hour $ .00 -$ .00/hour $ .00 -$ .00/hour $ .00 -$ .00/hour $ .00 -$ .00/hour $ .00 -$ .00/hour 2.3 The above rates are for the Consultant only. All rates for subconsultants to the Consultant will be in accordance with the Consultant's cost proposal. 3. INVOICING. 3.1 Each month the Consultant shall submit an invoice for Services performed during the preceding month. The original invoice shall be submitted to the Commission's Executive Director with two (2) copies to the Commission's Project Coordinator. 3.2 Charges shall be billed in accordance with the terms and rates included herein, unless otherwise agreed in writing by the Commission's Representative. Exhibit C-3 17336.00603\8581981.2 33 3.3 Base Work shall be charged separately, and the charges for each task and Milestone listed in the Scope of Services, shall be listed separately. The charges for each individual assigned by the Consultant under this Agreement shall be listed separately on an attachment to the invoice. 3.4 A charge of $500 or more for any one item of Additional Direct Costs shall be accompanied by substantiating documentation satisfactory to the Commission such as invoices, telephone logs, etc. 3.5 Each copy of each invoice shall be accompanied by a Monthly Progress Report and spreadsheets showing hours expended by task for each month and total project to date. 3.6 Each invoice shall indicate payments to DBE subconsultants or supplies by dollar amount and as a percentage of the total invoice. 3.7 Each invoice shall include a certification signed by the Consultant's Representative or an officer of the firm which reads as follows: I hereby certify that the hours and salary rates charged in this invoice are the actual hours and rates worked and paid to the employees listed. Signed ____________ _ Title Date Invoice No. 4. PAYMENT 4.1 The Commission shall pay the Consultant within four to six weeks after receipt by the Commission of an original invoice. Should the Commission contest any portion of an invoice, that portion shall be held for resolution, without interest, but the uncontested balance shall be paid. 4.2 The final payment for Services under this Agreement will be made only after the Consultant has executed a Release and Certificate of Final Payment. Exhibit C-4 17336.00603\8581981.2 34 ...-------------------------------------------- EXHIBIT "D" PROPOSITION 18 REQUIREMENTS Notwithstanding anything to the contrary contained in the Agreement, including the other Exhibits attached thereto, the following provisions shall apply if funding for the Services is provided, in whole or in part, from Proposition 1 B by and through the California Department of Transportation ("Caltrans"). 1. Equal Employment Opportunity -Consultant must comply with Executive Order 11246 (3 CFR, 1964-1965 Comp., p. 339), "Equal Employment Opportunity," as amended by Executive Order 11375 (3 CFR, 1966-1970 Comp., p. 684), "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and as supplemented by regulations at 41 CFR chapter 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor." 2. Copeland "Anti-Kickback" Act (18 U.S.C. 874 and 40 U.S.C. 276c) - Consultant must comply with the Copeland "Anti-Kickback" Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR Part 3, "Consultants and Subconsultants on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The Commission shall report all suspected or reported violations to the responsible DOE contracting officer. 3. Contact Work Hours and Safety Standards Act (40 U.S.C. 327-333) - Consultant must comply with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor regulations (29 CFR Part 5). Under Section 102 of the Act, each Consultant is required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than 11 /2 times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic is required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. 4. Rights to Inventions and Data Made Under a Contract or Agreement - Consultant shall comply with Federal requirements and regulations pertaining to patent rights with respect to any discovery or invention which arises or is developed in the course of or under the Contract, and shall be in compliance with 10 CFR 600.325 and Appendix A-Patent and Data Rights to Subpart D, Part 600. Exhibit D-1 17336.00603\8581981.2 35 5. Clean Air Act (42 U.S.C. 7401 et seq.), Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15), as amended -Consultant shall comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (41 U.S.C. 7401 et seq.), Federal Water Pollution Control Act (33 U.S.C. 1251 et seq. ), Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15), as amended. The Commission will report violations to the responsible contracting officer and the Regional Office of the Environmental Protection Agency (EPA). 6. Davis-Bacon Act (40 U.S.C. 276a) -Consultant shall comply with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) as supplemented by Department of Labor regulations (29 CFR Part 5). 7. Contract Violations -Consultant shall comply with the applicable administrative, contractual, and legal remedies in instances where Consultant violates or breaches contract terms, and will be subject to sanctions and penalties as may be appropriate and as outlined in the Contract. 8. Termination Provisions -Consultant shall comply with termination for cause and termination for convenience provisions as outlined in the Contract, including the manner by which it will be effected and the basis for settlement. 9. Reporting -Consultant shall comply with Caltrans requirements and regulations pertaining to reporting. 10. Access to Documents -Consultant shall grant access by the grantee (Commission), the granter agency (Caltrans), the State of California, or any of their duly authorized representatives to any books, documents, papers, and records of the Consultant which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions. 11. Retention of Records -Consultant shall retain all required records for at least three years after Commission makes final payment and all other pending matters are closed. 12. Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871.) - Consultant shall comply with mandatory standards and policies relating to energy efficiency which are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871), which are incorporated by reference in this Contract. (10 CFR 600.236(i)(13).) Exhibit D-2 17336.00603\8581981.2 36 EXHIBIT "E" CERTIFICATE OF CONSUL TANT I HEREBY CERTIFY that I am the and duly authorized representative of the firm of ______________ _ whose address is , and that, except as hereby expressly stated, neither I nor the above firm that I represent have: (a) employed or retained for a comm1ss1on, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above consultant) to solicit or secure this agreement; nor (b) agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out the agreement; nor (c) paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above consultant) any fee, contribution, donation, or consideration of any kind for, or in connection with, procuring or carrying out this agreement. By: Signature Name Title Date Exhibit E 17336.00603\8581981.2 37 EXHIBIT "F" DISCLOSURE OF LOBBYING ACTIVITIES [ATTACHED BEHIND THIS PAGE) Exhibit F-1 17336.00603\8581981.2 38 Local Assistance Procedureli Manual EXIIBIT 10-Q Discosure of Lobbying Activities Exhibit 10-Q Disclosure of Lobbying Acthities DISCLOSURE OF LOBBYING ACTIVITIES COMPLETE THIS FORM TO DISCLOSE LOBBYI1'G ACTIVTTJES l'URSUA.'l/T T031 USC 1352 1. Type of Federal Action: D a. contract b. grant c. cooperative agreement d. loan 2. Status of Federal Action: D a. bid/offeriapplication o. initial award c. post-award 3. Report Type: D a. inltial b. material change For Material Chang• O•ly: e. loan guarantee f. loan insurance year__ quarter ___ ___, 4. Name and Address of Reporting Entity Ornme 0 Subawar<lee Tier ___ , ifk:nown Congressional District, if known 6. Federal Department/Agrncy: 8. Fe-deral Action !\umber, if known; 10. a. Name and Addre .. of Lobby Enllty (If individual, last name, fim name, MT) date nf Inst report _____ 1 5. lfRcporting Entity in No. 4 ls Suba ... ardee, Enter Name and Addres• of Prime: Congressional Dlstrlct, if known 7. Federal Program :"lame/Description: CFDA Number, if applicable _________ , 9. Award Amount, if known: b. Individual• Performing Services (including address if different from Ko. I Oa) (last name, first name, Ml) (attach Continuation Sheet(s) if necessary) 11. Amouat of Payment (check an that apply) S D e<:rual D planned 12. Form of Payment (check all that apply): D a. cash D b. in·kind; specify: nature. ______ _ value ------ 13. Type of Payment (check all that apply) ~ a. retainer b. one-time tee c. conunission d. contingent fee e deferred f. other, spccrfy __ 14. Brief Descrlplioo of Services Performed or to be performed and Date(•) of Service, Including offlcer(s}, employee(s), or member(•) contacted, for Payment Indicated in Item 11: (attach Continuation Sheet(s) ifnece<sary) 15. Continuation Sheet(s) attached: Vcs D No D 16. Information 1equested througJ1 thiJi form i!ii authorized by Title 31 U.S.C. Seclion 1352. This disdos11TC of lobbying reJiance was placed by the tier above when his b"a.nsacLion was made Dr ent~d mto. This disclosure is requirW pur.iuant to 31 U.S.C. 1352 This mformation will be reported to Congress semiann.ially and will be available foe public insp~tlon. Any perSon who fails to file the requ11cd disclosure shall be 8ubjecl to a civil penalty ofnol less than SI0,000 and nol more thau Signatwe: -----------------! $ W0,000 for eac:h such failure. Federal Use Only: LPP 06-02 17336.00603\8581981.2 Print Name: _________________ 1 'fitJc: -------------------! Telephone No.: _________ D•te: _____ 1 Authori•ed for Local Reproduction Standard I' orm -LLL Standard Forni Ll.L R~\'. 04-28-06 Exhibit F-2 39 Page 10-77 May 1,2006 EXHBIT IO-Q Local Assistance Procedures Manual Disclosure of Lobbying Activities· INSTRUCTIONS FOR COMPLETION OF SF-LLL, DlSCLOSURE OF LOBBYING ACTIVITlES This disclosun: form shall be completed by the reporting entity, whether subawardee or pame federal recipient al the initiation or receipt of "°'·cred federal action or a material change lo previous tiling pursuant 1o title 31 U.S.C. Section 1352. The filing of a fonn is required for such payment or agreement to make payment to lobbying entity for influencing or attempting to influence an officer or employee of any agency. a Member of Congress an officer or employ~i: of Congress or an employee of a Memher ofCongre..c;s in connection with a covered federal action. Attach a continuation sheet for additional information if the space on the form is inadequate. Complete all items that apply for both the initiaJ filing and material change report. Refer to the lmpleme11lmg guidance published by 1he Office of Managernent and Budget for additional information. 1. Identify the type of covered federal action for which lobhying activity is and/or ha.'i l:ieen secured to influence, the outcome of a covered federal action. 2. Identify the status of the covered federal action. 3. Identify the appropriate classificabon of this report. If this is a follow-up report caused by a mat.:rial change to the ioformation previously reported, enter the year and quarter in which the change occurred. Enter the date of the last,, previously submitted repon by this reponing entity for this covered federal action. 4. Enter the full name, atldress, city, slate and zip code of the reporting entity. Include Congressional District if known. Check the appropnau: classification of the reporting entity that designates if it is or expects to be a prime or subaward recipient. Identify the tier of the subawardcc, e.g .. the first subawardee of the prime is the fm;t tier. Subawards indudc but are not lim1ted to subcontracts, subgrants and contract awards under grants. 5. 1fthe organization filing the report in Item 4. checks "Subawnrdee" then enter the full name, addres~. clty, State and zip code of the prime federal recipient. lnc1udc Congress:fonal District, if known. 6. Enter the name of the federal agency making the award or loan ccmmitment. Include at least one organization level below agency name, if known. For example~ Department of Transportation, United States Coast Guard. 7. Enter the federal program name ordcseription for the covered federal action (item I). If known, enter the full Catalog ofFedernl Domestic Assistance (CFlJA) number for gran~, coop~ative agreements, loans and loan corrunHments. 8. Enter the most appropriate federal identifying nwuber available for tht! fot.leral itction idtmtification in item l (e.g., Request for Proposal (RFP) number. Invitation for Bid (TFB) number, grant announcement number. the contract grant. or loan award number, the application/proposal control number assigned by the federal agency) Include prefixes, e.g., "RFP-DE-90-00L" 9, For a ccvered federnl action where there has been an award or loan cnmm1tment hy the Federal agency, enter the federal amount oflhe award/loan commitmenLllj for the prime entity identified in item 4 or 5. 10. (a) Enter the full name, address, city, state and zip code of the lobbying entity engaged by Ute repurting ontity identified in Item 4. to influenced the covered fcdcra1 action. (b) Ent.er the full names of the individual(s) performing services and include full address if different from JO (a). Enter Last Name, First Name and Middle Initial (Ml). 11. Enter the amount of compensation paid or reasonably expected to be paid by the reponing entity (Item 4) to the lobbying entity (Item IO). Indicate whether the payment has been made (actual) or will be made (planned). Check all boxes that apply. If this is a mateaal change report, ont.er the cumulative amount of payment made or planned to he made. 12 Che<:k the appropaate box( es). Check all boxes that apply. ff payment is made through an in-kind contribution, specify the natu.re and value of the in-kind payment. 13. Check the appropriate box( es). Check all boxes that apply. If other, specify nature. 14. Prov1de a specific and de•ailed description of the services that the lobbyist has performed or will be expected to perform and the date(s) of any services rendered. Include all preparatory and related activity not just time spent in Bctual contact with federal officials. Identify the federal officer(s) or employee(s) conwcted or the officer(s) employee(•) or :vlember(s) of Congress that were contacted. 15. Check whether m not a continuation sheet(s) is attached. I 6. The certifying official shall sign and date the form, print his/her name title and telephone number. PubJic reporting burden for this collection of infonnalion is estimated to average 30-minutes per response. including lime for reviewing instruction, searching existing do.ta .u1urces, gathering and maintaining the data needed, and completing and reviewing the cotlechon of information. S~nd cunummts regarding the burden estimate or any other aspect of this collection of infonnation) including suggestions for reducing this burden,. to the Office of Management and Budget, Paperwork Reduction Project (0348-0046). Wt1shington, D.C. 20503. St'-l.\.l .-ln111r1icur>n~ Rev 06-(14-IJ{Xd·:t\Dll'» rage 10-78 May 1, 2006 LPP 06-02 Exhibit F-3 17336.00603\8581981.2 40 -----------,