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03 March 26, 2012 Western Riverside County Programs and ProjectsTIME: DATE: RECORDS RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE MEETING AGENDA 1:30 p.m. Monday, March 26, 2012 LOCATION: BOARD ROOM County of Riverside Administrative Center 4080 Lemon Street, First Floor, Riverside ~ COMMITTEE MEMBERS o4! Adam Rush, Chair I Ike Bootsma, City of Eastvale Andrew Kotyuk, Vice Chair I Scott Miller, City of San Jacinto Bob Botts I Don Robinson, City of Banning Karen Spiegel I Eugene Montanez, City of Corona Frank Johnston I Micheal Goodland, City of Jurupa Valley Darcy Kuenzi I Wallace Edgerton, City of Menifee Marcelo Co I Richard Stewart, City of Moreno Valley Berwin Hanna I Kathy Azevedo, City of Norco Daryl Busch I AI Landers, City of Perris Ben Benoit I Timothy Walker, City of Wildomar Bob Buster, County of Riverside, District I Marion Ashley, County of Riverside, District V ~STAFF o4! Anne Mayer, Executive Director John Standiford, Deputy Executive Director ~ AREAS OF RESPONSIBILITY o4! Air Quality, Capital Projects, Communications and Outreach Programs, lntermodal Programs, Motorist Services, New Corridors, Regional Agencies/Regional Planning, Regional Transportation Improvement Program (RTIP), Specific Transit Projects, State Transportation Improvement Program (STI P), Transportation Uniform Mitigation Fee (TUMF) Program, and Provide Policy Direction on Transportation Programs and Projects related to Western Riverside County and other areas as may be prescribed by the Commission. Comments are welcomed by the Committee. If you wish to provide comments to the Committee, please complete and submit a Speaker Card to the Clerk of the Board. RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE www. rete. org AGENDA* *Actions may be taken on any item listed on the agenda 1:30 p.m. Monday, March 26, 2012 BOARDROOM County Administrative Center 4080 Lemon Street, First Floor Riverside, California 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 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. In addition, the maximum time for public comment for any individual item or topic is thirty (30) minutes. 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. Western Riverside County Programs and Projects Committee March 26, 2012 Page 2 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. 5. APPROVAL OF MINUTES -FEBRUARY 27, 2012 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 Jess 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. STATE ROUTE 91 TOLL FACILITY AGREEMENT Page 1 Overview This item is for the Committee to: 1) Approve Agreement No. 12-31-067-00, with the California Department of Transportation (Caltrans) for a toll facility within State Route 91 in an amount not to exceed $60,000; 2) Authorize the Executive Director, pursuant to legal counsel review, to make to execute the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. 8. AGREEMENT WITH RIVERSIDE TRANSIT AGENCY FOR THE STATE ROUTE 91 SHUTTLE SERVICE FOR COUNTY EMPLOYEE PARKING LOT Page 50 Overview This item is for the Committee to: 1) Approve Agreement No. 12-31-069-00 with Riverside Transit Agency (RTA) for shuttle service for the County employee parking lot for a two-year term in the amount of $218,400; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee March 26, 2012 Page 3 9. AWARDS FOR FREEWAY SERVICE PATROL TOW TRUCK SERVICE Page 60 Overview This item is for the Committee to: 1) Award Agreement No. 12-45-045-00 to Pepe's Towing (Pepe's) for tow truck services on Beat No. 18 of the Freeway Service Patrol (FSP) program for a three-year term, and two one-year options to extend the agreement, in an amount not to exceed $1,520,000; 2) Award Agreement No. 12-45-046-00 to Pepe's for tow truck services on Beat No. 19 of the FSP program for a three-year term, and two one-year options to extend the agreement, in an amount not to exceed $1,015,000; 3) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 4) Forward to the Commission for final action. 10. LEASE OF FREQUENCIES AND REPEATERS FOR FREEWAY SERVICE PATROL DIGITAL RADIO COMMUNICATIONS Page 88 Overview This item is for the Committee to: 1) Approve Agreement No. 12-45-071-00 with Lucky's Two-Way Radios (Lucky's) for lease of frequencies and repeaters for Freeway Service Patrol (FSP) digital radio communications for a term of 38 months in an amount not-to-exceed $25,000; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. 11 . COMMISSIONERS I STAFF REPORT Overview This item provides the opportunity for the Commissioners and staff to report on attended and upcoming meeting/conferences and issues related to Commission activities. 12. ADJOURNMENT AND NEXT MEETING The next Western Riverside County Programs and Projects Committee meeting is scheduled to be held at 1 :30 p.m., Monday, April 23, 2012, Board Chambers, First Floor, County Administrative Center, 4080 Lemon Street, Riverside. RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS SIGN-IN SHEET MARCH 26, 2012 NAME AGENCY E MAIL ADDRESS -(~ 0 \_ RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE ROLL CALL MARCH 26, 2012 County of Riverside, District I County of Riversiqe, District y, · · ·· City of Banning City< of Cbro~~ City of Eastvale City~f.JurtJpa Vall~y\.>·· .. >· ····• City of Menifee City of Moreno Valley City of Norco City ofPer.fis City of San Jacinto City of Wildornar~1 '> · ~ ' .,,, " ' '' " " v Absent ifF ~...,4-d ,,~'lf.~· ........ tl D D D a D D D D :iJ:: o.ciww \~ 13r·"'· 1:1 AGENDA ITEM 5 MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Monday, February 27, 2012 MINUTES 1 . CALL TO ORDER The meeting of the Western Riverside County Programs and Projects Committee was called to order by Chair Darcy Kuenzi at 1 :31 p.m., in the Board Room at the County of Riverside Administrative Center, 4080 Lemon Street, First Floor, Riverside, California, 92501. 2. PLEDGE OF ALLEGIANCE At this time, Chair Kuenzi led the Western Riverside County Programs and Projects Committee in a flag salute. 3. ROLL CALL Members/ Alternates Present Marion Ashley Bob Botts Daryl Busch Bob Buster Berwin Hanna Frank Johnston Darcy Kuenzi Adam Rush Karen Spiegel 4. PUBLIC COMMENTS Members Absent Ben Benoit Marcelo Co Andrew Kotyuk There were no requests to speak from the public. RCTC WRC Programs and Projects Committee Minutes February 27, 2012 Page 2 5. APPROVAL OF MINUTES -NOVEMBER 28, 2011 M/S/C (Busch/Rush) to approve the minutes as submitted. 6. ADDITIONS/REVISIONS There were no additions or revisions to the agenda. 7. FISCAL YEAR 2011/12 TRANSPORTATION UNIFORM MITIGATION FEE REGIONAL ARTERIAL PROGRAM -PROGRAMMING REQUESTS Shirley Medina, Programming and Planning Manager, presented an overview of the FY 2011/12 TUMF Regional Arterial Program programming requests. Commissioner Adam Rush expressed support for the Interstate 15/Limonite Avenue interchange project. M/S/C (Ashley/Hanna) to: 1 ) Approve the removal of the Interstate 15/Schleisman Road interchange project from the TUMF Regional Arterial program and replace it with the Interstate 15/Limonite Avenue interchange improvement project in the city of Eastvale, and terminate Agreement No. 06-72-522-00 with the county of Riverside for the 1-15/Schleisman Road interchange; 2) Approve Agreement No. 12-72-059-00 with the city of Moreno Valley to program $5,665,000 of TUMF Regional Arterial funds for the Moreno Valley Perris Boulevard (Cactus Avenue to Perris Valley Storm Drain (PVSD) Lateral "B") construction phase; 3) Authorize the Executive Director to execute the agreement, pursuant to legal counsel review; 4) Approve the removal of the Ramona Expressway extension project, Seventh Street to Cedar Street, and replace it with the Ramona Expressway widening project, Sanderson Avenue to State Street in the city of San Jacinto, and terminate Agreement No. 06-72-520-00 with the city of San Jacinto; and 5) Forward to the Commission for final action. RCTC WRC Programs and Projects Committee Minutes February 27, 2012 Page 3 8. TIGER IV DISCRETIONARY GRANTS: STATE ROUTE 91 CORRIDOR IMPROVEMENT PROJECT Tanya Love, Goods Movement Manager, presented an overview of the Transportation Investment Generating Economic Recovery grant application and Transportation Infrastructure Finance and Innovation Act letter of interest submittal package for the State Route 91 Corridor Improvement Project. M/S/C (Hanna/Spiegel) to: 1) Direct staff to prepare a Transportation Investment Generating Economic Recovery (TIGER) grant application and Transportation Infrastructure Finance and Innovation Act (TIFIA) letter of interest (LOI) submittal package to U.S. Department of Transportation (U.S. DOT) for the SR-91 Corridor Improvement Project (SR-91 CIP); 2) Authorize the Executive Director to submit the grant application and TIFIA LOI; 3) Authorize the Executive Director to submit future TIGER grant applications and TIFIA LOI for the SR-91 CIP if necessary; and 4) Forward to the Commission for final action. 9. AMENDMENT TO COMMISSION'S FISCAL YEAR 2007/08 AND FISCAL YEAR 2011/12 RAIL PROGRAM SHORT RANGE TRANSIT PLAN Henry Nickel, Staff Analyst, presented the amendments to the Commission's FY 2007/08 and FY 2011/12 Rail Program Short Range Transit Plan. M/S/C (Johnston/Spiegel) to: 1) Amend the Commission's Commuter Rail Program FY 2011/12 Short Range Transit Plan (SRTP) to reflect the allocation of $1 0 million in Federal Transit Administration (FT A) Section 5309 program funds to the Commuter Rail State of Good Repair project; 2) Amend the Commission's Commuter Rail Program FY 2007/08 SRTP to reflect deobligation of $123,131 in Local Transportation Fund (L TF) funds from the Commission Station Capital Improvement Program; and 3) Forward to the Commission for final action. RCTC WRC Programs and Projects Committee Minutes February 27, 2012 Page 4 10. PROPOSITION 1 B FISCAL YEAR 2010/11 CALIFORNIA TRANSIT SECURITY GRANT PROGRAM -CALIFORNIA TRANSIT ASSISTANCE FUND AND SUPPORTING RESOLUTION Henry Nickel presented the details of the Proposition 1 B FY 2010/11 California Transit Security Grant Program -California Transit Assistance Fund and Supporting Resolution. At Commissioner Rush's request for clarification, Henry Nickel explained that the grant money will be used for security projects. The Commission is currently implementing a program to enhance security fencing, update the closed circuit camera system, as well as several other smaller projects at each of the stations. John Standiford, Deputy Executive Director, added that any major improvement projects, such as the fencing for the stations, come before the Commission for final approval. M/S/C (Spiegel/Rush) to: 1) Adopt Resolution No. 12-008, "Resolution of the Riverside County Transportation Commission Appointing Individuals to Act on Behalf of the Commission for the Purpose of Applying and/or Accepting Grants Awarded to the Commission's Rail Program"; and · 2) Forward to the Commission for final action. 11 . MASTER AGREEMENT AND PROGRAM SUPPLEMENTS FOR STATE FUNDED TRANSIT PROJECTS WITH THE CALIFORNIA DEPARTMENT OF TRANSPORTATION Sheldon Peterson, Rail Manager, presented an overview of the master agreement and program supplements for state funded transit projects with Caltrans. M/S/C (Rush/Ashley) to: 1) Adopt Resolution No. 12-007, "Authorization for the Execution of a Master Agreement and Program Supplements for State- Funded Transit Projects" with California Department of Transportation (Caltrans); 2) Approve Agreement No. 12-25-060-00 with Caltrans for state- funded transit projects; RCTC WRC Programs and Projects Committee Minutes February 27, 2012 Page 5 3) Authorize the Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 4) Forward to the Commission for final action. 12. ELECTION OF OFFICERS At this time, Chair Kuenzi opened nominations for the slate of officers. Commissioner Marion Ashley, seconded by Commissioner Berwin Hanna, nominated Commissioner Rush for the Chair position. No other nominations were received. Chair Kuenzi closed nominations. Commissioner Rush was elected as the Western Riverside County Programs and Projects Committee Chair for 2012. Commissioner Rush abstained from the vote. Commissioner Daryl Busch, seconded by Commissioner Karen Spiegel, nominated Commissioner Andrew Kotyuk for the Vice Chair position. No other nominations were received. Chair Kuenzi closed the nominations. Commissioner Kotyuk was unanimously elected as the Western Riverside County Programs and Projects Committee Vice Chair for 201 2. 13. COMMISSIONERS I STAFF REPORT John Standiford announced: • The ribbon-cutting ceremony for the 7 4/21 5 interchange project was held on Wednesday, February 1 5 and congratulated the Commission and the city of Perris; and • The groundbreaking ceremony for the SR-91 high occupancy vehicle project will be held on Friday, March 9. 14. ADJOURNMENT There being no further business for consideration by the Western Riverside County Programs and Projects Committee, the meeting was adjourned at 1:57 p.m. Respectfully submitted, Jennifer Harmon Clerk of the Board REVISION TO AGENDA ITEM 7 Additions are noted by Bold Italics, Deletions are noted by Strikethrough RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 26, 2012 TO: Western Riverside County Programs and Projects Committee FROM: Michael Blomquist, Toil Program Director THROUGH: Anne Mayer, Executive Director SUBJECT: State Route 91 Toll Facility Agreement STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 12-31-067-00, with the California Department of Transportation (Caltrans) for a toll facility within State Route 91 in an amount not to exceed $6,000 $60,000; 2) Authorize the Executive Director, pursuant to legal counsel review, to make to execute the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. BACKGROUND INFORMATION: 1 0-Year Delivery Plan and Toiling Due to the passage in 2002 of the 2009 Measure A, in December 2006, the Commission adopted the 2009 Measure A Western County Highway 1 0-Year Delivery Plan (1 0-Year Delivery Plan). The 1 0-Year Delivery Plan calls for the development of tolled express lane corridors within SR-91 and Interstate 15. Tolling Authority In September 2008, SB 1316 (Correa) was signed into California law. SB 1316 was jointly sponsored by the Orange County Transportation Authority (OCTA) and the Commission and paved the way for each agency to advance its long-term plan for tolled express lanes within the SR-91 corridor. For OCTA, SB 1316 extended its existing franchise agreement to operate the existing 91 Express Lanes through 2065. For the Commission, SB 1316 provided the Commission with the state tolling authority needed by authorizing for 50 years the charging of tolls for use of tolled express lanes within the SR-91 corridor between the Orange/Riverside Agenda Item 7 County line and 1-1 5. SB 1 31 6 also gave the Commission the ability to sell toll revenue bonds, use of toll revenue for other transportation purposes within the SR-91 corridor, and franchise agreement rights and responsibilities. In August 2009, the Commission obtained the federal tolling authority needed for the SR-91 tolled express lanes through the execution of a three-party agreement between the Commission, Caltrans, and the Federal Highway Administration. This agreement addresses the use of toll revenues and annual maintenance requirements. Development of the SR-91 Corridor Improvement Project (SR-91 CIP) The SR-91 CIP will widen the SR-91 through Corona, extend the ex1st1ng 91 Express Lanes from the Orange County line to 1-15, improve five local interchanges, reconstruct a portion of the 1 5/91 interchange, and other regular and express lane improvements within the SR-91 corridor. Due to the high priority of delivering these improvements, the SR-91 CIP is being fast-tracked by advancing several work phases concurrently. These concurrent work phases include preliminary engineering, environmental permitting, right of way acquisition, utility planning, interagency agreements, and design-build (contractor procurement and planning for final design and construction). Design-Build Method of Project Delivery and Cooperative Agreement In March 2010, the California Transportation Commission approved the Commission's use of the design-build method of project delivery for the SR-91 CIP under SB X2 4 and the statewide design-build pilot program. Separately, to minimize the litigation and delay risk of using design-build, the Commission also sought design-build authority through AB 2098 (Miller), which was ultimately passed and signed into law. Commission staff and Caltrans negotiated and reached agreement on a design-build cooperative agreement specific to the SR-91 CIP that addresses roles, responsibilities, and the myriad of foreseeable issues in advance of final design and construction. The Commission approved this design-build cooperative agreement at its July 2011 meeting. Toll Facility Agreement Consistent with the state tolling authority granted through SB 1 31 6, Commission staff and Caltrans have negotiated a toll facility agreement (TFA) for the 50-year period of the Commission's tolled express lanes within the SR-91 corridor. The design-build cooperative agreement described previously governs the Commission/Caltrans relationship from 2012-2017 (design and construction period) Agenda Item 7 while the TFA governs from approximately 2017-2067 (operations and maintenance period). The following are some key provisions of this TFA: • Caltrans grants a 50-year lease to Commission for use of the SR-91 median to operate and maintain a tolled express lane system at a cost of $1 0/month; • The Commission is responsible for operating, mainta1mng, policing, administering, toll collection, customer service, and all related work for the tolled express lanes; • The Commission will gain Caltrans' approval of a Traffic Operations Plan prior to opening to assure safe and efficient operations consistent with traffic engineering principles; • The Commission shall have authority to impose and collect tolls and fees, and Caltrans shall have no rights or interests in these tolls and fees; • The Commission can establish toll policy and pricing without Caltrans approval; • The Commission can use any operation and toll collection technology compliant with state and federal law, shall coordinate such technology with OCT A, and be consistent with other Commission/OCT A cooperative agreements related to operation of tolled express lanes; • Caltrans retains responsibility for operation and maintenance of the general purpose lanes; • Each agency shall notify the other of planned maintenance and coordinate to minimize impacts to both tolled express and general purpose lanes; • Future extension of the tolled express lanes, if any, will be governed by then- current design and construction standards and a future cooperative agreement; • Any future extension, once operational, will be governed by this TFA; • The Commission shall prepare a maintenance plan and perform maintenance; Caltrans shall annually certify that the maintenance meets the requirements of the section 129 federal tolling agreement; • Caltrans and the Commission may enter into a future maintenance agreement whereby Commission pays Caltrans to perform the maintenance of the tolled express lanes; • The Commission shall maintain a suitable reserve fund for capital improvements and maintenance for 50 years meeting the Commission's bond financing requirements; • The Commission shall contract for police services for the tolled express lanes at a level equivalent to those services provided for the adjacent general purpose lanes; • The Commission shall procure and maintain an appropriate level of general liability insurance and name Caltrans as an insured party; • At the conclusion of the 50-year lease, the tolled express lanes including all signs, gantries, traffic control devices, video and enforcement equipment, and other equipment used for operation shall become Caltrans' property; and Agenda Item 7 I • A dispute resolution process is established within the TFA. Staff is seeking Commission approval of the TFA and authorization for the Executive Director to execute the agreement on behalf of the Commission. Financial Information In Fiscal Year Budget: I N/A Year: FY 2017/18-Amount: $6,ooo $eG,GGG FY 2066/67 Source of Funds: l Toil Revenue Budget Adjustment: I N/A GL!Project Accounting No.: XXX-31-73001 (Lease expense) Fiscal Procedures Approved: ~~ I Date: I 03/15112 Attachment: Toll Facility Agreement Agenda Item 7 I AGENDA ITEM 7 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 26, 2012 TO: Western Riverside County Programs and Projects Committee FROM: Michael Blomquist, Toil Program Director THROUGH: Anne Mayer, Executive Director SUBJECT: State Route 91 Toll Facility Agreement STAFF RECOMMENDA T/ON: This item is for the Committee to: 1) Approve Agreement No. 12-31-067-00, with the California Department of Transportation (Caltrans) for a toll facility within State Route 91 in an amount not to exceed $60,000; 2) Authorize the Executive Director, pursuant to legal counsel review, to make to execute the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. BACKGROUND INFORMATION: 1 0-Year Delivery Plan and Toiling Due to the passage in 2002 of the 2009 Measure A, in December 2006, the Commission adopted the 2009 Measure A Western County Highway 1 0-Year Delivery Plan (1 0-Year Delivery Plan). The 1 0-Year Delivery Plan calls for the development of tolled express lane corridors within SR-91 and Interstate 15. Toiling Authority In September 2008, SB 1316 (Correa) was signed into California law. SB 1316 was jointly sponsored by the Orange County Transportation Authority (OCTA) and the Commission and paved the way for each agency to advance its long-term plan for tolled express lanes within the SR-91 corridor. For OCT A, SB 1316 extended its existing franchise agreement to operate the existing 91 Express Lanes through 2065. For the Commission, SB 1316 provided the Commission with the state tolling authority needed by authorizing for 50 years the charging of tolls for use of tolled express lanes within the SR-91 corridor between the Orange/Riverside County line and 1-1 5. SB 1 316 also gave the Commission the ability to sell toll revenue bonds, use of toll revenue for other transportation purposes within the SR-91 corridor, and franchise agreement rights and responsibilities. Agenda Item 7 1 In August 2009, the Commission obtained the federal tolling authority needed for the SR-91 tolled express lanes through the execution of a three-party agreement between the Commission, Caltrans, and the Federal Highway Administration. This agreement addresses the use of toll revenues and annual maintenance requirements. Development of the SR-91 Corridor Improvement Project (SR-91 CIP) The SR-91 CIP will widen the SR-91 through Corona, extend the ex1st1ng 91 Express Lanes from the Orange County line to 1-15, improve five local interchanges, reconstruct a portion of the 1 5/91 interchange, and other regular and express lane improvements within the SR-91 corridor. Due to the high priority of delivering these improvements, the SR-91 CIP is being fast-tracked by advancing several work phases concurrently. These concurrent work phases include preliminary engineering, environmental permitting, right of way acquisition, utility planning, interagency agreements, and design-build (contractor procurement and planning for final design and construction). Design-Build Method of Project Delivery and Cooperative Agreement In March 2010, the California Transportation Commission approved the Commission's use of the design-build method of project delivery for the SR-91 CIP under SB X2 4 and the statewide design-build pilot program. Separately, to minimize the litigation and delay risk of using design-build, the Commission also sought design-build authority through AB 2098 (Miller), which was ultimately passed and signed into law. Commission staff and Caltrans negotiated and reached agreement on a design-build cooperative agreement specific to the SR-91 CIP that addresses roles, responsibilities, and the myriad of foreseeable issues in advance of final design and construction. The Commission approved this design-build cooperative agreement at its July 2011 meeting. Toil Facility Agreement Consistent with the state tolling authority granted through SB 1316, Commission staff and Caltrans have negotiated a toll facility agreement (TFA) for the 50-year period of the Commission's tolled express lanes within the SR-91 corridor. The design-build cooperative agreement described previously governs the Commission/Caltrans relationship from 2012-2017 (design and construction period) while the TFA governs from approximately 2017-2067 (operations and maintenance period). The following are some key provisions of this TFA: Agenda Item 7 2 • Caltrans grants a 50-year lease to Commission for use of the SR-91 median to operate and maintain a tolled express lane system at a cost of $1 0/month; • The Commission is responsible for operating, mainta1nmg, policing, administering, toll collection, customer service, and all related work for the tolled express lanes; • The Commission will gain Caltrans' approval of a Traffic Operations Plan prior to opening to assure safe and efficient operations· consistent with traffic engineering principles; • The Commission shall have authority to impose and collect tolls and fees, and Caltrans shall have no rights or interests in these tolls and fees; • The Commission can establish toll policy and pricing without Caltrans approval; • The Commission can use any operation and toll collection technology compliant with state and federal law, shall coordinate such technology with OCT A, and be consistent with other Commission/OCT A cooperative agreements related to operation of tolled express lanes; • Caltrans retains responsibility for operation and maintenance of the general purpose lanes; • Each agency shall notify the other of planned maintenance and coordinate to minimize impacts to both tolled express and general purpose lanes; • Future extension of the tolled express lanes, if any, will be governed by then- current design and construction standards and a future cooperative agreement; • Any future extension, once operational, will be governed by this TFA; • The Commission shall prepare a maintenance plan and perform maintenance; Caltrans shall annually certify that the maintenance meets the requirements of the section 1 29 federal tolling agreement; • Caltrans and the Commission may enter into a future maintenance agreement whereby Commission pays Caltrans to perform the maintenance of the tolled express lanes; • The Commission shall maintain a suitable reserve fund for capital improvements and maintenance for 50 years meeting the Commission's bond financing requirements; • The Commission shall contract for police services for the tolled express lanes at a level equivalent to those services provided for the adjacent general purpose lanes; • The Commission shall procure and maintain an appropriate level of general liability insurance and name Caltrans as an insured party; • At the conclusion of the 50-year lease, the tolled express lanes including all signs, gantries, traffic control devices, video and enforcement equipment, and other equipment used for operation shall become Caltrans' property; and • A dispute resolution process is established within the TFA. Agenda Item 7 3 Staff is seeking Commission approval of the TFA and authorization for the Executive Director to execute the agreement on behalf of the Commission. Financial Information In Fiscal Year Budget: I N/A I Year: I FY 2017/18- Amount: I $60,000 FY 2066/67 Source of Funds: I Toll Revenue Budget Adjustment: I N/A GL!Project Accounting No.: XXX-31-73001 (Lease expense) Fiscal Procedures Approved: ~~ I Date: I 03/15/12 Attachment: Toll Facility Agreement Agenda Item 7 4 Riverside County SR 91 [Add Post-mile] Agreement No. 08-1518 CALTRANS/RCTC TOLL FACILITY AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY AGREEMENT NO. 08-1518 I. Parties and Date. This Toll Facility Agreement ("Agreement") entered into effective on ____ _ 2012, is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as "Caltrans," and the RIVERSIDE COUNTY TRANSPORTATION COMMISSION, referred to herein as "RCTC." Caltrans and RCTC are sometimes referred to herein, individually, as "Party" and, collectively, as the "Parties". 2. Recitals. 2.1 WHEREAS, RCTC is a county transportation commission responsible for planning and implementing transportation improvements within and adjacent to Riverside County. 2.2 WHEREAS, Caltrans is the State agency vested with the ownership of, and which is responsible for the design, construction, maintenance, and operation of the California State Highway System. 2.3 WHEREAS, pursuant to its rights granted under Section 130240, et seq., of the Public Utilities Code; Section 143 of the Streets and Highways Code, Section 6800, et seq., of the Public Contracts Code, and the Section 129 Agreement (defined below) RCTC is studying the possible construction of tolled and non-tolled improvements and the potential operation of a toll facility on State Route 91 in order to improve traffic conditions within and adjacent to Riverside County. 2.4 WHEREAS, Caltrans is the owner of the State Highway System including the right of way over and on which the toll facility may be constructed. Assuming that the above described project is built and concurrent with the commencement ofthe term ofthis Agreement, as set forth in Section 4.2(a), Caltrans grants a lease to RCTC for use of the identified portions of the State Highway right of way for the operation and maintenance of the Toll Facility. 2.5 WHEREAS, the Parties have, prior to or concurrent with this Agreement, negotiated and entered into a Design-Build Cooperative Agreement for the potential construction 17336.02100\7011972.3 5 ofthe.Initial Toll Facility (defined below) as well as the initial phase of the CIP General Purpose Lanes (defined below). 2.6 WHEREAS, the Parties acknowledge the Ultimate Project (defined below), if constructed at all, will be constructed in phases, with the Initial Toll Facility and the initial phase of the CIP General Purpose Lanes to be constructed pursuant to the Design-Build Cooperative Agreement and any future phases to be constructed pursuant to future agreements to be entered into between RCTC and Caltrans, as further set forth herein. 2.7 WHEREAS, the purpose of this Agreement is to set forth the roles and responsibilities of Caltrans and RCTC as relates to the potential use, maintenance and operation of the Toll Facility, assuming said Toll Facility is built. 2.8 WHEREAS, the Parties acknowledge that full compliance with the California Environmental Quality Act ("CEQA"), the National Environmental Policy Act ("NEPA") and other laws are a precondition to any approval or construction of any portion or phase of the Ultimate Project. 2.9 WHEREAS, the Parties acknowledge and agree that nothing in this Agreement commits RCTC to approving or constructing the Toll Facility, or any portion thereof. 2.1 0 WHEREAS, the Parties expressly agree that this Agreement does not in fact operate to approve any project or its construction and that RCTC retains the ability to select the "no build" alternative from those alternatives being analyzed through the CEQA and NEPA environmental review process. NOW THEREFORE, for good and valuable consideration, the receipt ofwhich is hereby acknowledged, it is mutually understood and agreed by RCTC and Caltrans as follows. 3. Definitions. 3.1 AVI. The term "AVI" shall mean a system for automatically identifying vehicles as they pass through a lane of roadway, which may consist generally of (a) Interrogator devices installed in the roadway or on elevated structures located above or near the monitored roadway; (b) Transponder devices attached to vehicles which contain, and may transmit to an interrogator device, identifying account information; and (c) Any alternative or later generation technology designed to achieve such purpose. 3.2 Caltrans. The term "Caltrans" shall be defined as the California Department of Transportation. 2 17336.02100\7011972.3 6 3.3 Caltrans Parties. The term "Caltrans Parties" shall mean all or any of Caltrans, the designated Caltrans Representative, and any officials, agents and employees of Caltrans. 3.4 CHP. The term "CHP" shall refer to the California Highway Patrol or any successor agency charged with law enforcement on the State Highway System. 3.5 CIP General Purpose Lanes. The term "CIP General Purpose Lanes" shall refer to those general purpose lanes and related corridor improvements that may be constructed by RCTC in conjunction with construction ofthe Initial Toll Facility and/or as part ofthe Ultimate Project. 3.6 Claims. The term "Claims" shall mean any costs, claims, damages, demands, losses, expenses, suits or actions brought or liability imposed by law on account of death, personal injury or damage to real or personal property. 3.7 Critical Safety Standard. The term "Critical Safety Standard" shall mean a (i) standard adopted and published by the FHW A or Caltrans; (ii) applied to all similarly situated existing State transportation facilities; and (iii) necessary to correct an anticipated or actual imminent and substantial endangerment to life or safety. 3.8 Days. The term "Days" shall be defined as calendar days. 3.9 Design-Build Cooperative Agreement. The term "Design-Build Cooperative Agreement" shall be defined as that certain separate agreement entered into by and between RCTC and Caltrans relating to the parties' respective obligations for the potential design and construction of the Initial Toll Facility and the identified non-toll facilities, as the same may be amended from time to time 3 .I 0 FHW A. The term "FHW A" shall refer to the Federal Highways Administration or to any delegatee or successor, as the case may be. 3.11 General Purpose Lanes. The term "General Purpose Lanes" shall be defined as those non-tolled, traditional highway improvements, including but not limited to freeway lanes, ramps, shoulders, structures, embankments, cut slopes, drainage facilities, utilities, safety devices, traffic control devices, or signage owned and operated by Caltrans, including the CIP General Purpose Lanes, once such lanes have been accepted by Caltrans for inclusion into the State Highway System pursuant to the terms of the Design-Build Cooperative Agreement, or a future design-build cooperative agreement for future Phases, as applicable. 3.12 Index. The term "Index" shall be defined as the Consumer Price Index, Ali Items for Urban Wage Earners and Clerical Workers in the Los Angeles-Riverside-Orange County, California Area, 1982-84=1 00, published by the United States Department of Labor, Bureau of Labor Statistics. 3.13 Initial Toll Facility. The term "Initial Toll Facility" shall be defined as the first portion of the Ultimate Toll Facility being considered for construction by RCTC. The attached Exhibit "A" sets forth a general description of the Initial Toll Facility. 3 17336.02100\7011972.3 7 3.14 Maintenance Agreement. The term "Maintenance Agreement" shall be defined as that certain agreement for maintenance ofthe Toll Facility to be entered into by and between RCTC and either Caltrans or another entity selected by RCTC, assuming the Toll Facility is built, to perform required maintenance of the Toll Facility as further described in this Agreement. 3.15 Maintenance Standards. The term "Maintenance Standards" shall be defined as the then applicable published Caltrans maintenance schedules and standards, the Caltrans Maintenance Manual, or any applicable Caltrans guidance of statewide application, which is in effect at that time, to the same extent and manner that Caltrans is applying the same manual or guidance to the maintenance of its own existing facilities of substantially equivalent stze, location and character, including the General Purpose Lanes. 3.16 Major Modifications. The term "Major Modifications" shall be defined as material changes, alterations, modifications, improvements or additions to the Toll Facility or General Purpose Lanes which are proposed to be undertaken by RCTC which are not Phases of the proposed Ultimate Toll Facility. 3.17 Minor Modifications. The term "Minor Modifications" shall be defined as the installation of any new, and not replacement, signs, gantries, and other tolling equipment, traffic control devices and video surveillance and enforcement equipment, and other similar equipment necessary for the safe and efficient operation of the Toll Facility which were not included or accepted as part of the Initial Toll Facility. 3.18 OCT A. The term "OCT A" shall be defined as the Orange County Transportation Authority. 3.19 91 Express Lanes. The term "91 Express Lanes" shall be defined as, jointly, the new Toll Facility being considered for construction in Riverside County and the existing OCT A 91 Express Lanes located in Orange County. 3.20 OCTA 91 Express Lanes. The term "OCTA 91 Express Lanes" shall be defined as the existing four-lane, I 0-mile high occupancy toll facility constructed in the median of the State Route 91 freeway, between the Orange/Riverside County line and the State Route 55 freeway, which is leased to OCT A by Caltrans and operated by OCT A. 3.21 Phases. The term "Phases" shall be defined as portions of the proposed Ultimate Toll Facility or CIP General Purpose Lanes which may be part of the Initial Toll Facility, assuming said improvements are built, or which may be designed and constructed, in phases, at a later time, if at all. 3.22 RCTC. The term "RCTC" shall be defined as the Riverside County Transportation Commission. 3.23 RCTC Parties. The term "RCTC Parties" shall mean all or any of RCTC, the designated RCTC Representative, and any officials, agents and employees ofRCTC. 4 17336.02100\7011972.3 8 3.24 RCTC-OCTA Cooperative Agreement. The term "RCTC-OCTA Cooperative Agreement" shall be defined as that certain separate agreement negotiated and entered into by and between RCTC and OCTA to address, among other things, relinquishment of OCTA's rights, interests and obligations in the Riverside County portion of the State Highway Route 91 toll lane, and coordination and cooperation in implementing policies, procedures and rules governing the potential construction of the Toll Facility and the mutual operation of the 91 Express Lanes by RCTC and OCT A, assuming the Toll Facility is built. 3.25 Section 129 Agreement. The term "Section 129 Agreement" shall be defined as that certain agreement, dated August 18, 2009, entered into by and among the Federal Highway Administration, United States Department of Transportation ("FHW A"), Caltrans and RCTC. 3.26 State. The term "State" shall mean the State of California. 3.27 Toll Facility. The term "Toll Facility" shall be defined as the Initial Toll Facility, once completed and placed into operation, assuming said facility is built, and any subsequent Phases of the Ultimate Toll Facility, once completed and placed into operation. 3.28 Third Party Claim. The term "Third Party Claim" shall mean a Claim asserted by a person or entity against Caltrans or RCTC other than a Caltrans Party or an RCTC Party. 3.29 Traffic Operations Plan. The term "Traffic Operations Plan" shall have the meaning set forth in Section 5.2 ofthis Agreement. 3.30 Ultimate Toll Facility. The term "Ultimate Toll Facility" shall be defined as the tolled portion of the Ultimate Project, as further described in Exhibit "A" to this Agreement, as the same may be modified pursuant to the environmental review process for the Ultimate Project under NEPA, CEQA, or pursuant to any other subsequent environmental review. 3.31 Ultimate Project. The term "Ultimate Project" shall be defined as the entire scope of the RCTC State Route 91 Express Lanes and related corridor improvement project proposed to be completed by RCTC, including the Ultimate Toll Facility, the General Purpose Lanes and other non-toll improvements, structures and appurtenances included as part of the Ultimate Project, unless the no-build alternative is selected, as described and depicted in Exhibit "B" to the Agreement, as the same may be modified pursuant to the environmental review process for the Ultimate Project under the NEPA, CEQA, or pursuant to any other subsequent environmental review. 5 17336.02100\7011972.3 9 4. Use of Caltrans' right of way. 4.1 Grant of Lease. (a) Concurrent with the effective date of the term of this Agreement, as set forth in Section 4.2(a) below, Caltrans hereby grants to RCTC a lease and such other rights, real property interest or authority for RCTC to utilize Caltrans' right of way for the Initial Toll Facility (the "Lease"), assuming said facility is built. The Caltrans right of way subject to the Lease is preliminarily described in Exhibit "C" ("Leased Property"). Prior to commencing toll operations on any segment or Phase of the Initial or Ultimate Toll Facility, RCTC shall prepare a draft legal description of that segment or Phase ofthe Initial or Ultimate Toll Facility. Upon review and approval of the draft legal description by Caltrans, the approved legal description(s) shall collectively amend and supersede the preliminary description of the Leased Property, as set forth in the attached Exhibit "C", and shall reflect the legal description of the real property interests being leased by RCTC. The Parties shall record an amendment(s) to the Memorandum of Agreement to reflect the amended and superseded legal description, once approved. The Lease shall include any improvements now or hereafter located on the Leased Property. Such rights shall be provided at a cost of$10.00 per month. From and after the date of this Agreement, Caltrans shall not sell, convey, transfer, lease or otherwise diminish or encumber its right, title or interest in the real property required for the Ultimate Toll Facility so as to inhibit its ability to lease said property to RCTC as set forth herein. (b) The parties recognize the rights conveyed by this Agreement including, without limitation, the Lease, may be over, under or on existing State right of way which crosses several local jurisdictions and which is improved with, among other things, an existing State Highway and other improvements such as local roads and utilities. While RCTC is granted exclusive use and possession of the surface of the Leased Property for operation of the Toll Facility, it is understood that this Agreement is subject to all existing rights conveyed to others, including, but not limited to, local entities and utilities, and Caltrans is not obligated to clear, remove, relocate or otherwise extinguish the rights of third parties as a condition of this Agreement. Similarly, this Agreement does not preclude Caltrans from issuing new encroachment permits to third parties nor does it preclude Caltrans from amending or extending the term of existing encroachment permits, provided that RCTC is first provided notice of any new encroachment permits proposed or amendments to existing encroachment permits, is afforded an opportunity to review and consent to the issuance/amendment of such permits and provided that such permits do not materially impact RCTC's use and operation of the Toll Facility. Moreover, this Agreement does not preclude Caltrans from requesting that existing utilities be relocated or preclude Caltrans from causing utilities to be relocated, provided that RCTC is first provided notice and an opportunity to review and consent to such relocation, and provided that such relocation does not impact RCTC's use and operation of the Toll Facility. (c) Care and Protection of State Highways. This Agreement is specifically subject to the terms and provisions of Division 1, Chapter 3 of the Streets and Highways Code 6 17336.02100\7011972.3 10 (Streets and Highways Code section 660 et seq.) and any subsequent amendment thereto, as may be applicable. (d) The Lease shall initially apply to the Initial Toll Facility. After construction and acceptance of the Initial Toll Facility and initial phase of the CIP General Purpose Lanes, RCTC shall have the option, consistent with the terms of this Agreement, to extend the area subject to the Lease and to apply those other rights, real property interests or authority to the real property within the footprint of, and which is necessary for, the construction and operation of the Ultimate Toll Facility. Upon the exercise by RCTC of such option from time to time, the Parties shall amend this Agreement and the Memorandum of Agreement attached hereto in order to extend RCTC's rights related to the Ultimate Toll Facility, to the extent consistent with this Agreement. 4.2 Term ofUse Rights. (a) The term of this Agreement and the rights described above in Section 4.1 (a) shall be fifty (50) years commencing as of the first day on which the Initial Toll Facility opens for public use and toll operations, assuming said facility is built. At the end of the foregoing specified period, RCTC shall have no further authority to impose or collect a toll, and the term of this Agreement shall not be extended, unless authorized by the Legislature. (b) Notwithstanding any other provision of this Agreement, if the "no build" alternative is chosen as a result of the completion of environmental review for the Ultimate Project, this Agreement shall immediately terminate without liability to either Party. 4.3 Contingent Upon OCTA Action. This Agreement shall be expressly contingent upon action by OCT A pursuant to Public Utilities Code section 130240, subdivision (k), section 130244, subdivision (g). 5. Operational Issues. 5.1 Operation of Toll Facility. RCTC shall be responsible for the operation of the Toll Facility including, but not limited to, performing, or causing to be performed, the administrative, toll collection, and traffic management activities associated with the operation of the Toll Facility for use by the general public. 5.2 Traffic Operations Plan. (a) RCTC shall, at least sixty (60) business days prior to the first day on which any portion of the Toll Facility opens for public use, submit to Caltrans for its review and, if appropriate, approval, a Traffic Operations Plan. (b) The Traffic Operations Plan will include an operational traffic analysis of the Initial Toll Facility and its interface with the connecting and adjacent public facilities, including any other tolled facilities. The following information and relevant underlying assumptions shall be provided for the peak a.m. and peak p.m. periods and other timeframes in 7 17336.02100\70119723 11 which the operation of the Initial Toll Facility changes from that in effect during the peak period operation and for operating scenarios other than the initial operating scenario: 1. Existing and projected volumes; 11. Types of vehicles allowed or excluded from the Initial Toll Facility; 111. Weaving lengths at each end of the Initial Toll Facility; IV. Enforcement areas and procedures; and v. Delays and queues. (c) RCTC shall be consistent with Caltrans' then-current policies and practices when distributing video feeds to media outlets and internet providers. RCTC shall observe Caltrans' then-current policies and practices when displaying Changeable Message Sign (CMS) with the exception of displaying toll pricing and toll lane advertising. (d) The Traffic Operations Plan is intended solely to assure that the Toll Facility is operated in a safe and efficient manner consistent with applicable traffic engineering principles and the adjacent General Purpose Lanes, and is not intended to in any way infringe upon RCTC's rights as set forth in Sections 5.3 through 5.5 of this Agreement, or any other rights or obligations ofRCTC hert:junder or otherwise relating to the Toll Facility. (e) Caltrans shall provide any comments to, or its approval of, the Traffic Operations Plan within twenty (20) business days of RCTC's submission of the plan. Caltrans' approval of the Traffic Operations Plan shall not be unreasonably withheld. (f) The Traffic Operations Plan shall be updated and amended for any subsequent Phase of the Ultimate Toll Facility. (a) RCTC shall have authority to impose and collect tolls, fees and charges for use of the Toll Facility and entrance onto the Leased Property pursuant to applicable State and federal law. Caltrans shall have no direct right, title and interest in and to the toll revenues. (b) RCTC shall have authority to establish and adjust toll pricing without approval from Caltrans and to collect tolls using A VI tolling technology or other technology chosen by RCTC, provided that any such actions shall be in compliance with applicable State and federal laws and standards and shall be coordinated with OCTA policies and rules pursuant to the RCTC-OCT A Cooperative Agreement. (c) All toll equipment utilized for the Toll Facility shall be compatible with Title 21 or future equivalent standard. 8 17336.02!00\70!!972.3 12 (d) Any wireless communication equipment installed by RCTC shall not interfere or adversely affect the operation of any Caltrans' roadside electronic equipment existing at the time RCTC installs its wireless communication equipment. 5.4 RCTC shall have the sole right to establish policies and rules governing use of the Toll Facility, including toll systems, vehicle occupancy rules, vehicle classifications, tolling policies, business rules, toll rates and evasion/enforcement policies, provided that any such policies and rules shall be in compliance with State and federal laws and shall be coordinated with OCT A policies and rules pursuant to the RCTC-OCT A Cooperative Agreement. 5.5 Safety Investigations and Safety Related Improvements. (a) Caltrans may, at its sole cost, perform safety investigations and analysis relating to the Toll Facility. Caltrans and RCTC shall cooperatively review the recommendations of the investigations, if any, and jointly determine corrective action necessary, if any, to remedy any identified deficiency or any potential safety enhancement. RCTC shall fund and implement the jointly identified corrective action or enhancement to the Toll Facility. (b) After consultation with RCTC, including the collaboration described in paragraph (c) below, Caltrans may, if the identified safety issue has a safety index that qualifies the proposed improvement project for funding under the SHOPP 201.0 I 0 Program, as detailed in Section 4 of the most recent version of the California Highway Safety Improvement Program (HSIP) Guidelines, or any successor guidance published by Caltrans and adopted pursuant to 23 U .S.C. section I 52, issue an order to make a modification to the Toll Facility for safety reasons (a "Safety Improvement Order" or "SIO"). (c) Caltrans and RCTC shall work collaboratively on the scope, design and schedule for implementation of Safety Improvement Orders. Caltrans, acting in good faith, shall take into consideration all relevant factors including, but not limited to, the extent of the risk which the modification purports to address, and all concerns of RCTC as the Party responsible for the Toll Facility during the term of this Agreement. RCTC, acting in good faith, shall take into consideration all relevant factors including, but not limited to, the extent of the risk which the modification purports to address, and all concerns of Caltrans as the Party generally responsible for the safety of the State Highway System. (d) Cost for the modifications agreed upon in an SIO shall be negotiated between Caltrans and RCTC in good faith, and allocated between each Party based on the SIO to be implemented. (e) The modifications agreed upon shall be implemented by RCTC in accordance with (i) Caltrans' normal time frames for safety enhancements of similar scope; or (ii) the Safety Improvement Order. lfRCTC is unable or unwilling to implement an SIO agreed upon by the Parties, Caltrans may unilaterally implement such SIO, and such right shall not be subject to enjoinder per Section 18.6 of this Agreement. Unless otherwise determined pursuant to Section 18.6, RCTC shall reimburse Caltrans for a portion of its actual and reasonable costs associated with the implementation of such SIO, as determined pursuant to paragraph (d) above. 9 17336.02100\7011972.3 13 Caltrans shall assume all liability for any SIO unilaterally implemented by Caltrans, unless the dispute resolution process set forth in Section 18.6 ultimately results in the determination that the SIO was warranted or appropriate, in which case the provisions of the foregoing sentence shall apply. 5.6 Operation of General Purpose Lanes. (a) In the case of any major incidents on or blockages of the General Purpose Lanes caused by accidents or debris, Caltrans shall, consistent with available resources and constraints, promptly take reasonable action to assist CHP or the selected law enforcement agency in performing its duties, consistent with the policies and practices of Caltrans and the relevant law enforcement agency, and Caltrans shall be responsible for its own costs related thereto. (b) Caltrans shall be responsible for operation and maintenance of the General Purpose Lanes. (c) Caltrans shall provide RCTC prior written notification of any proposed major maintenance, improvement or other modifications to the General Purpose Lanes and shall coordinate the same with RCTC in order to minimize any disruptions to operation of the Toll Facility and to minimize potential impacts of such activities on the Toll Facility. 5.7 Traffic Management-RCTC Rights and Responsibilities. (a) RCTC shall be responsible for traffic management within the Toll Facility and towing in response to incidents located within the Toll Facility. Motorists shall be notified of any closures of the Toll Facility through RCTC owned CMS or similar means. The Caltrans Traffic Management Centers located in San Bernardino (District 8) and Orange (District 12) counties shall be notified of any closure of the Toll Facility so that Caltrans can broadcast such closure through it Traveler Information System and ITS field elements. (b) The Parties agree that RCTC is authorized to establish and implement additional safety policies, as RCTC deems necessary, for the Toll Facility in addition to those required by law and this Agreement. Such additional safety policies shall be consistent with applicable law. Oversize, overweight and overlength restrictions set by RCTC for the Toll Facility shall be coordinated with OCTA's policies pursuant to the RCTC-OCTA Cooperative Agreement, and shall be included in the Traffic Operations Plan. Oversize, overweight and/or overlength permits shall not be issued by RCTC for vehicles using the State Highway System. (c) Operations of the Toll Facility may be interrupted as RCTC may deem necessary or advisable for reasons of, among other things, construction, repair, maintenance, improvement, modification, security, emergency and public safety. RCTC shall notify Caltrans five (5) days in advance of any planned closure of the Toll Facility. Notification of planned closures shall be made to the Caltrans Traffic Management Centers located in San Bernardino (District 8) and Orange (District 12) counties. 10 17336.02100\7011972.3 14 (d) In the case of any major incidents on or blockages of the Toll Facility caused by accidents or debris, RCTC shall, consistent with available resources and constraints, promptly take reasonable action to assist CHP or the selected law enforcement agency in performing its duties, consistent with the policies and practices of RCTC and the relevant law enforcement agency, and RCTC shall be responsible for its own costs related thereto. (e) As part of its traffic management activities, RCTC shall provide for the real time sharing of operational data including, but not limited to, traffic volumes, video surveillance feeds, loop detector data and changeable message board data through Caltrans' existing data collection systems. RCTC shall provide Caltrans with traffic volume, occupancy and other data related to the Toll Facility for use in state-wide reports and engineering studies. 5.8 Changes in Standards. (a) Caltrans, after coordination and consultation with RCTC, may issue an order for RCTC to make a modification to the Toll Facility based on adoption of new standards by FHW A or Caltrans ("Standards Modification Order"), provided that any required modification is to the same extent being imposed by Caltrans on existing State-operated and funded transportation facilities of substantially equivalent size, location and character. (b) The timing, scope, design and schedule for implementation of modifications to the Toll Facility under a Standards Modification Order will be proposed by Caltrans and will be subject to RCTC's' reasonable comment and approval. The modifications agreed upon shall be paid for by RCTC and implemented in consideration of (i) the time in which Caltrans' applies such improvements to existing facilities it owns and operates of a substantially equivalent size, location and character; (ii) the time period for implementation set forth in the revised standard, if any; and (iii) the timing for implementation of a pending or scheduled Major Modification, repair or rehabilitation affecting the affected area or structure that is not part of the Standards Modification Order, where implementation of such Standards Modification Order would reasonably be included within the scope ofwork of the modification. (c) Caltrans, acting in good faith, shall consider any request by RCTC for alteration or deferral of a particular modification under a Standards Modification Order, taking into consideration the anticipated availability of RCTC funds, the remaining term of this Agreement in light of RCTC's obligations to its bond-holders and other lenders, the schedule for upcoming repair and rehabilitation of the Toll Facility, the extent of inconvenience and delay necessitated by the modification and the extent of the risk or public benefit which the modification purports to address. (d) In the case of a Standards Modification Order to address a Critical Safety Standard, after the aforementioned coordination and consultation has occurred, if RCTC fails to implement a mutually approved Standards Modification Order by the deadline contained in the Standards Modification Order, Caltrans reserves the right and authority, but not the obligation, to enter onto the Toll Facility, and to implement the modifications called for in such Standards Modification Order and, unless otherwise determined pursuant to Section 18.6, to invoice RCTC 11 17336.02100\7011972.3 15 for the actual and reasonable cost of implementation. Caltrans shall assume all liability for such Standards Modification Order unilaterally implemented by Caltrans. 6. Phasing of Toll Facility; Approval ofUltimate Project. 6.1 Design-Build Cooperative Agreement. The Parties intend that the Initial Toll Facility, the General Purpose Lanes and other non-toll improvements will be completed pursuant to the terms of the separate Design-Build Cooperative Agreement, provided that nothing in this Agreement is intended to obligate RCTC to complete the Initial Toll Facility. 6.2 Ultimate Project. RCTC shall be permitted to construct the Ultimate Project; including Phases of the Ultimate Toll Facility, provided that nothing in this Agreement is intended to obligate RCTC to complete the Ultimate Project, the Ultimate Toll Facility or any additional Phase(s) thereof. If, however, construction of such improvements by RCTC has been initiated and has not been completed, RCTC is obligated to bring any pre-existing facility back to a condition which is substantially the same as the condition as it was on the date of commencement of construction activities. 6.3 Additional Phases of Toll Facility. The Parties shall timely negotiate and enter into such design and construction cooperative agreements required for implementation of additional phases of the Ultimate Project, including additional Phases of the Toll Facility. The Parties agree that such design and construction agreements shall be substantially in accordance with the terms of the Design-Build Cooperative Agreement. Subsequent phases of the Ultimate Toll Facility may require a Project Report and a re-evaluation, update, or recirculation of an environmental analysis. RCTC shall comply with all design and construction standards applicable at the time of approval of the project plans (as modified by the applicable design and construction cooperative agreement), as well as the terms of the applicable design and construction cooperative agreement. 6.4 Application of Agreement to Future Phases. As applicable, the terms of this Agreement, including, but not limited to, the Lease, shall apply to all Phases once completed, accepted by RCTC and Caltrans pursuant to the terms of the applicable design and construction cooperative agreement for the relevant Phase, and placed into operation. 7. Modification of Toll Facility. 7.1 Major Modification ofToll Facility. (a) RCTC shall submit any proposed Major Modification to Caltrans for approval pursuant to the Caltrans' encroachment permit process, as set forth in Streets & Highways Code Section 670, et. seq., as may be amended, and as further established in the relevant Caltrans' procedures manual in effect at the time. Caltrans shall not unreasonably withhold or delay approval of an encroachment permit for a Major Modification, and shall grant such encroachment permit so long as the Major Modification is consistent with the terms of this Agreement and with State and federal standards. Should Caltrans fail to timely issue an encroachment permit for a Major Modification that is in compliance with the terms set forth in 12 17336.02100\7011972.3 16 the foregoing sentence, such failure shall be submitted to the dispute resolution process contained in this Agreement. (b) If RCTC requires any modification that is not within the Toll Facility, a Caltrans encroachment permit shall be required per Caltrans' standard requirements for RCTC, and, as applicable, for its contractors, which permit shall be timely granted by Caltrans upon approval of the modifications. The parties acknowledge that Major Modifications not within the Toll Facility may require a separate agreement pursuant to the procedures set forth in the Caltrans Project Development Procedures Manual. (c) Major Modifications shall be completed in accordance with all applicable laws and environmental regulations, and to applicable Caltrans/FHWA standards and policies to the extent that Caltrans is applying the same standards to its own existing transportation facilities of substantially equivalent size, location and character. (d) RCTC shall coordinate construction of Major Modifications with Caltrans to minimize any impacts to the General Purpose Lanes. Unless otherwise agreed upon by the Parties, Caltrans shall provide oversight of construction activities related to the Major Modifications at no cost to RCTC, consistent with its policies in effect at the time of procurement of a contractor by RCTC to complete the Major Modifications. (e) Upon completion of the Major Modifications, RCTC shall, within 180 Days, provide revised "as-built" plans to Caltrans which address the Major Modifications including, as applicable, all contract records, survey documents, records of surveys, and structure as-built documents according to Caltrans requirements. Should RCTC fail to provide the "as- built" plans within the timeframe specified herein, Caltrans shall provide notice of such failure to RCTC. The notice shall state that ifRCTC does not submit the "as-built" plans within thirty (30) days of receipt of the notice, Caltrans shall be entitled to prepare the plans and bill RCTC for the actual costs thereof. (f) RCTC shall procure, on its own behalf or through a contract requirement with any contractor, and as a condition precedent to any modification to the Toll Facility, a policy or policies of insurance naming Caltrans, its employees and agents as an additional insured with coverage provided to Caltrans to the same degree as provided to RCTC. Such insurance shall be primary and non-contributory with any insurance maintained by Caltrans. Such policy or policies shall be consistent with the insurance coverage requirement published by Caltrans in its Standard Specifications or Standard Special Provisions in effect at the time of commencement of construction of the Major Modifications. 7.2 Minor Modification ofToll Facility. (a) RCTC shall have the right to erect and maintain signs, gantries, and other tolling equipment and to install and utilize traffic control devices and video surveillance and enforcement equipment, and other similar equipment necessary for the safe and efficient operation of the Toll Facility. All signs utilized by RCTC for the Toll Facility located within or adjacent to Caltrans' right of way shall comply with the California Manual on Uniform Traffic 13 17336.02100\7011972.3 17 Control Devices ("MUTCD") or the applicable State and federal standards operative at the time of purchase of such signs following procurement of a contractor or vendor therefor. Signs, gantries, or other tolling equipment shall not be installed in a manner which negatively impacts the General Purpose Lanes or in a manner which would cause the General Purpose Lanes to no longer conform to their original design or to applicable State or federal standards in effect at the time of installation. (b) Any installation of new, and not replacement of existing, signs, gantries, and other tolling equipment, traffic control devices and video surveillance and enforcement equipment, and other similar equipment necessary for the safe and efficient operation of the Toll Facility which were not included or accepted as part of the Initial Toll Facility shall be considered "Minor Modifications" if they are installed within the Toll Facility. RCTC shall be responsible for the installation and maintenance of said Minor Modifications. To effectuate the purposes of this section, and to maintain an accurate history of all improvements placed in the State Right of Way, RCTC agrees to submit to Caltrans a completed encroachment permit including RCTC-approved engineering plans, prior to performing any Minor Modifications. 7.3 Caltrans Implementation of Modifications. If RCTC requests that Caltrans implement, on behalf of RCTC, modifications to the Toll Facility, RCTC shall reimburse Caltrans for staff time and shall pay for costs associated with such Modifications. Any such work performed by Caltrans shall be pursuant to a separate agreement to be negotiated between the Parties. 8. Maintenance of Toll Facility. 8.1 RCTC Responsibility for Toll Facility Maintenance. RCTC shall be responsible for maintenance of the Toll Facility, unless RCTC contracts such obligations to Caltrans. 8.2 Shared Costs for Joint Maintenance. The Parties agree to share the costs related to joint maintenance for storm water which may drain from the Toll Facility to existing Caltrans facilities. The costs for such maintenance shall be based on the ratio of non-permeable surface area attributable to each Parties' facilities, which shall be determined in accordance with the Caltrans' Storm Water Quality Handbook, SWPPP/WPCP Preparation Manual. Unless otherwise agreed upon by the Parties, Caltrans shall be responsible for storm water maintenance activities in accordance with Best Management Practices for storm water, and shall invoice RCTC for its share of actual maintenance costs based on the foregoing formula. 8.3 Additional Integrated Maintenance Issues. The Parties shall, in good faith, address any additional integrated maintenance, permit and maintenance liability issues that may arise following commencement of operations of the Toll Facility, and shall, in good faith, and subject to a separate written agreement or an amendment hereto, determine a cost split and shared responsibility for such integrated maintenance issues, if any. 8.4 Maintenance Plan to be Prepared and Implemented by RCTC. 14 17336.02100\7011972.3 18 (a) Prior to commencement of operations of the Toll Facility, RCTC shall submit to Caltrans for its approval a maintenance plan for the Toll Facility (which, to the extent that RCTC engages Caltrans to perform maintenance services, shall be the work plan adopted pursuant to the Maintenance Agreement). (b) RCTC shall be responsible for the maintenance of the Toll Facility m accordance with the Maintenance Standards. (c) Caltrans shall furnish the Maintenance Standards to RCTC on a timely . basis. Receipt of the Maintenance Standards by RCTC shall constitute notice as to the contents therein. RCTC shall not be held responsible for implementing any changes to any such Caltrans Maintenance Standards expressed in such sources unless and until a manual is received or actual notice thereof is given to RCTC. (d) RCTC shall, in good faith, coordinate its schedule to consider potential impacts of RCTC's maintenance activities on the Toll Facility on the operation of the General Purpose Lanes. 8.5 Caltrans Annual Maintenance Review. Caltrans shall annually review the maintenance of the Toll Facility per the certification requirements set forth in the Section 129 Agreement and, if such maintenance has been undertaken in accordance with the Maintenance Standards, Caltrans shall timely certify the adequacy of such maintenance to FHW A as contemplated by the Section 129 Agreement. If, after inspection, it is Caltrans' opinion that appropriate maintenance of the Toll Facility has not been performed as required under this Agreement and Caltrans is not performing such maintenance under a Maintenance Agreement, Caltrans shall provide RCTC with a written notification of the specific items requiring maintenance. RCTC shall provide Caltrans with a plan to promptly initiate steps to cure the identified deficiencies. If Caltrans is performing such maintenance under a Maintenance Agreement, Caltrans shall promptly initiate steps to cure the identified deficiencies. Notwithstanding any other provision of this Agreement, Caltrans makes no warranty that if a party other than Caltrans is providing maintenance and Caltrans' inspection has determined that the appropriate maintenance as required under this Agreement has not occurred, that said negative finding will not be transmitted to FHW A or otherwise remain confidential. 8.6 Option to Enter Maintenance Agreement with Caltrans. The Parties may enter into a Maintenance Agreement pursuant to which maintenance services may be provided by Caltrans, unless RCTC determines otherwise. Such contract, if entered into by the Parties, shall provide for reimbursement of Cal trans for maintenance services as set forth therein. 15 17336.0210017011972.3 19 8.7 Responsibilities If a Party Other than Caltrans is Providing Maintenance of the Toll Facility. (a) The scope of Caltrans oversight responsibilities if a party other than Caltrans is providing maintenance of the Toll Facility shall be as follows: (i) At least annually, Caltrans shall review the maintenance of the Toll Facility per the certification requirements set forth in the Section 129 Agreement. (ii) If such maintenance has been undertaken in accordance with the maintenance required under this Agreement, Caltrans shall timely certify the adequacy of such maintenance to FHW A as contemplated by the Section 129 Agreement. (iii) If, after inspection, it is Caltrans' opinion that appropriate maintenance of the Toll Facility has not been performed in accordance with the maintenance required under this Agreement, Caltrans shall provide RCTC with a written notification of the specific items requiring maintenance. (b) If clause (iii) above is applicable, RCTC shall provide Cal trans with a plan to promptly initiate steps to cure maintenance deficiencies identified by Caltrans. (c) Notwithstanding any other provision of this Agreement, Caltrans makes no warranty that if a party other than Caltrans is providing maintenance and Caltrans' inspection has determined that the appropriate maintenance as required under this Agreement has not occurred, that said negative finding will not be transmitted to FHW A or otherwise remain confidential. 8.8 Right of Entry onto General Purpose Lanes. Caltrans hereby grants to RCTC, and its contractors, a right of entry onto the General Purpose Lanes, as required for RCTC to conduct maintenance activities with its own or its contractors' forces, or by contract. RCTC contractors shall, prior to entry onto the General Purpose Lanes, obtain from Caltrans an encroachment permit for such entry pursuant to Caltrans' standard practices and shall provide to Caltrans evidence of insurance reasonably sufficient for the work to be conducted by the RCTC contractor, as determined by RCTC, under which Caltrans shall be added as an additional insured. RCTC may enter into the General Purpose Lanes without an encroachment permit to remove debris or to perform other activities related to the clean-up of an accident which is not confined to the Toll Facility. 8.9 Coordination ofMaintenance Schedule. The Parties shall coordinate maintenance schedules with each other in order to minimize impacts of maintenance activities on the General Purpose Lanes or the Toll Facility. Each Party shall notify the other Party five (5) days in advance of any planned closure that may reasonably impact the facility operated by the other Party. 8.10 Coordination of Major Repairs, Modifications and Rehabilitation. The Parties shall cooperate and coordinate, as may be appropriate, in connection with major pavement and 16 17336.02100\7011972.3 20 structures repair, modification and rehabilitation of the General Purpose Lanes or the Toll Facility. 9. Reserve Funds. RCTC shall establish and maintain adequate reserve funds for maintenance and capital improvements, as required by RCTC's bond financing for the Project. Such reserve funds shall be sufficient to adequately maintain the Toll Facility in accordance with Maintenance Standards and to provide for transfer of the Toll Facility back to Caltrans at the end of the term of this Agreement in accordance with the requirements contained herein. I 0. Responsibility for Costs. 10.1 Costs for Maintenance, Operation and Rehabilitation of Toll Facility. Except as otherwise set forth herein, RCTC shall bear all costs of maintenance, operation and rehabilitation of the Toll Facility for the duration of the Agreement and any extension hereof. 10.2 Costs for Caltrans Services Reguested by RCTC. Other than expressly set forth herein or except as otherwise agreed upon by the Parties, RCTC shall be responsible for the costs of any services of Caltrans requested by RCTC including, but not limited to, the cost of . Pavement Management System testing if RCTC requests Caltrans perform such tests for the Toll Facility. 11. Public Safety/Policing. 11.1 California Highway Patrol (CHP) police services. (a) RCTC shall have the option to engage police services from CHP for the Toll Facility. (b) At RCTC's request, Caltrans shall assist RCTC in negotiation of the police services contract with CHP. 11.2 RCTC Right to Utilize Alternate California Law Enforcement Agency. RCTC shall have the right to use a California law enforcement agency other than CHP to provide police services on the Toll Facility, provided that such agency is a governmental entity that utilizes or can support the Statewide Integrated Traffic Records System (SWITRS) database, or such other highway safety program then in use by CHP or Caltrans for accident monitoring, or other comparable database or monitoring program subject to CHP approval. 11.3 Level of Police Services. The Parties agree that police services for the Toll Facility shall be equivalent to that provided on comparable Caltrans-operated transportation routes. 11.4 Toll violation enforcement. RCTC shall have the right to: (a) Engage services of CHP or other law enforcement agency to apprehend and/or cite toll violators in accordance with State law. 17 I 7336.02100\701 I 972.3 21 (b) Initiate civil and administrative actions and other toll enforcement and collection actions against toll violators consistent with applicable law. (c) Enforce all private rights against toll violators. (d) Engage private security to identify toll violators (e) Take other legally permissible actions to collect, enforce and protect toll revenues. 11.5 No Right to Toll Facility Customer Information. This Agreement shall not provide Caltrans with any independent right to any Toll Facility customer information. 11.6 Compliance with Laws. RCTC shall follow all applicable traffic enforcement laws and regulations and both Parties shall comply with all applicable privacy laws with respect to customer information. 12. Caltrans Closures of Toll Facility. 12.1 Emergency Use of Toll Facility. Except as otherwise specified herein, Caltrans shall not be entitled to close the Toll Facility or to allow the general public to utilize the Toll Facility without cost except in the case of an emergency. As used in this section, an "emergency" shall mean a circumstance that poses an immediate and grave threat to life or safety, or a serious environmental hazard that cannot be abated except by closure of the Toll Facility. Closures of or traffic on the General Purpose Lanes that cause an inconvenience to the public shall not be considered, on their own, an emergency, as used herein. Closures due to emergencies shall be limited to the shortest reasonable time to address the emergency situation and each Party shall act with all due diligence to address such emergency. Unless infeasible due to the nature of the emergency, Caltrans shall notify RCTC in advance of any intended closure ofthe Toll Facility due to an emergency (and if not feasible, Caltrans shall notify RCTC as soon as reasonably practicable). The prohibitions of this paragraph shall not apply to closures initiated or implemented by Caltrans staff at the request or order of the California Highway Patrol or other authorized law enforcement agency. 12.2 Closures Necessitated by Construction or Maintenance Activities. Should a closure of all or a portion of the Toll Facility be required to accommodate Caltrans' construction or maintenance activities on the General Purpose lanes adjacent to the Toll Facility, Caltrans shall submit a closure plan and closure criteria to RCTC for approval no less then ten (10) days prior to any such proposed closure. No closure of the Toll Facility shall be permitted for the purposes specified in this Section 12.2 unless and until RCTC has approved the closure plan and closure criteria. Caltrans shall make its best efforts to conduct construction and maintenance activities in such a manner as to minimize any required closures ofthe Toll Facility. 13. Financing. 13.1 Responsibility for Project Financing. RCTC shall be responsible for project . financing, unless otherwise agreed upon by the Parties. 18 17336.02100\7011972.3 22 13.2 Caltrans Assistance with Information Requirements. Caltrans shall provide reasonable assistance with any reporting, documentation and other reasonably necessary informational requirements of RCTC' s lenders/bond holders. (a) Except for periodic estoppel certificates to bondholders or lenders regarding RCTC's compliance under this Agreement (and any other agreement between the Parties relating to the 91 Express Lanes, including any Maintenance Agreement between Caltrans and RCTC), obligations under the Section 129 Agreement and any opinions required to come from Caltrans, any assistance shall be for informational purposes only and final reporting, documentation, projections, etc. shall be solely the responsibility of RCTC or the entity seeking bond revenues or other financing. Any prospectus or other public statement or offering shall include an express statement that neither the full faith and credit, nor the taxing authority of the State of California is pledged to the payment of principal or interest or otherwise offered as backing for the statement or offering. (b) Caltrans shall not certify that the financing meets Securities and Exchange Commission criteria, and shall not give any warranties related thereto. 14. Representations and Warranties. 14.1 Representations and Warranties of Caltrans. In addition to the other representations and warranties of Caltrans contained herein, Caltrans hereby represents and warrants as follows: (a) Caltrans is a department of the Executive branch of the State of California, duly organized and existing under the laws and Constitution of the State of California, is authorized to execute and deliver this Agreement and to perform its obligations hereunder and by proper action has duly authorized the execution, delivery and performance of this Agreement. (b) The execution and delivery by Caltrans of this Agreement and the consummation of the transactions contemplated hereby, is not in conflict with, or a breach of or a default under any law or regulation applicable to Caltrans, and to the best ofCaltrans' knowledge after due inquiry, there is no restriction or prohibition which would impair or render unenforceable or illegal, as to Caltrans, any provision of this Agreement including, without limitation, the Lease, or any other related agreement to which it is a party. (c) Caltrans has determined that RCTC will incur substantial cost and expense to design, develop, acquire, construct, install and operate the Toll Facility, and that it is necessary, appropriate and reasonable to provide the assurances, protections, rights and warranties contained herein. (d) No litigation is pending or, to the best knowledge of Caltrans, threatened challenging the authority of Cal trans to enter into this Agreement, and Caltrans is in compliance with all applicable laws and regulations. (e) Caltrans owns and controls the State Highway System, subject to those existing rights granted to third parties. 19 17336 02100\7011972.3 23 (f) The representations and warranties of Caltrans contained herein are, as of the date of execution hereof and thereof, accurate and complete. 14.2 Representations and Warranties ofRCTC. In addition to the other representations and warranties of RCTC contained herein, RCTC hereby represents and warranties as follows: (a) RCTC has the authority to execute, deliver and perform this Agreement, and the terms and conditions hereof are valid and binding obligations of RCTC. (b) The execution and delivery by RCTC of this Agreement and the consummation of the transactions contemplated hereby is not in conflict with, or a breach of or a default under any law or regulation applicable to RCTC, and to the best of RCTC's knowledge after due inquiry, there is no restriction or prohibition which would impair or render unenforceable or illegal, as to RCTC, any provision of this Agreement, or any other related agreement to which it is a party. (c) To RCTC's best knowledge, there is no litigation in effect challenging RCTC's authority to enter into this Agreement and RCTC is in compliance with all applicable laws and regulations. (d) RCTC makes no warranties or representations that the activities undertaken by it pursuant to this Agreement will result in actual construction of the Toll Facility, or any portion thereof, or that, if constructed, any of the same will be commercially or technologically viable or of any specified quality or fit for any intended use or function (all of which such warranties and representations are hereby expressly disclaimed). (e) The representations and warranties of RCTC contained herein are, as of the date of execution hereof and thereof accurate and complete. 15. Allocation ofResponsibility; Liability 15.1 RCTC Obligations Related to Toll Facility. As between Caltrans and RCTC, RCTC shall be responsible for operating, maintaining, policing, administering and collecting tolls for the use of the Toll Facility, subject to and in accordance with the terms of this Agreement, except to the extent RCTC engages Caltrans to perform maintenance as provided in Section 8, or any other services, and CHP to perform police services as provided in Section 11. 15.2 RCTC Indemnification of Cal trans Parties. RCTC shall indemnify, hold harmless and defend Caltrans Parties from any Third-Party Claim to the extent such Third-Party Claim results from any negligent act or omission of RCTC in the performance of the activities described in Section 15.1 above, except to the extent that such Third-Party Claim is attributable to or arises out of any of the matters described in Section 15.3 below. 15.3 Caltrans Indemnification of RCTC Parties. Caltrans shall indemnify, hold harmless and defend RCTC Parties from any Third-Party Claims attributable to or arising out of any negligent act or omission or willful misconduct of Caltrans. 20 17336.02100\701 1972.3 24 15.4 Waiver of Other Indemnity Rights. Except as provided in Sections 15.2 and 15.3, RCTC and Caltrans each waive any and all rights to indemnity of any kind (whether equitable, comparative, express or implied) from the Caltrans Parties and RCTC Parties, respectively, with respect to Third-Party Claims. 15.5 Resolution ofCiaims When Caltrans and RCTC are Named Joined Defendants. If Caltrans and RCTC are named joined defendants pursuant to a Third Party Claim arising under this Agreement, the legal issues between the plaintiff(s) bringing forth such claim and Caltrans and RCTC, as joined defendants, shall be resolved first without consideration as to the allocation or apportionment ofliability or damages between Caltrans and RCTC, if any liability or damages can be allocated or apportioned between them. A determination regarding allocation or apportionment of liability or damages between Caltrans and RCTC shall be made following final resolution of the Third Party Claim, either in a separate or second phase of trial or by some other mechanism the Parties may agree upon. 15.6 Resolution of Inverse Condemnation Claims. If either Caltrans or RCTC is named as a defendant pursuant to a Third Party Claim for inverse condemnation arising out of or related to the Toll Facility ("Inverse Claim"), the legal issues between the plaintiff(s) bringing forth the Inverse Claim and either Caltrans or RCTC, as applicable, shall be resolved first without consideration as to the allocation or apportionment of liability or damages between Caltrans and RCTC, if any liability or damages can be allocated or apportioned between them. The Party that is not a named defendant shall have the right, at its sole cost and expense, to participate in the defense and resolution of the Inverse Claim. Within ninety (90) days of the final resolution of the Inverse Claim, either Caltrans or RCTC may refer to the dispute resolution process set forth in Section 18.6 of this Agreement the apportionment of liability or damages for the Inverse Claim between Caltrans and RCTC. Liability or damages will be apportioned based on the extent to which the Claim is found to have arisen out of RCTC's construction or operation of the Toll Facility. As respects the Initial Toll Facility, the provisions set forth in this Section 15.6 shall have no further force or effect five (5) years from the date the Initial Toll Facility is placed into operation. As respects any subsequent Phase of the Ultimate Toll Facility, this Section 15.6 shall have no further force or effect five (5) years after such Phase is placed into operation. 16. Records. The Parties shall hold all administrative draft and administrative final reports, studies, materials, and documentation relied upon, produced, created, or utilized for operation and/or maintenance of the Toll Facility in confidence to the extent permitted by law. Where applicable, the provisions of California Government Code section 6254.5(e) shall govern the disclosure of such documents in the event that the Parties share said documents with each other. The Parties shall not distribute, release, or share said documents with anyone other than employees, agents, and consultants of the Parties or OCT A who require access to such documents for a purpose related to operation and maintenance of the Toll Facility without the written consent of the Party authorized to release them, unless required or authorized to do so by law. 17. Insurance. 21 17336.02100\7011972.3 25 17.1 Commercial General Liability Insurance. (a) RCTC shall procure and maintain throughout the term of this Agreement comprehensive general liability insurance protecting RCTC from risks arising from RCTC's activities covered under this Agreement. Such liability insurance policy shall include coverage for bodily injury and property damage. If RCTC uses existing coverage to comply with the requirements contained in this Section 17 and that coverage does not meet these requirements, RCTC agrees to amend, supplement, or endorse the existing coverage to meet the requirements herein. (b) Caltrans shall be included as an insured under the insurance policy(ies) described in this Section 17. As respects Caltrans, for claims arising out of the activities contemplated in this Agreement, such insurance shall be primary and non-contributory with any insurance maintained by Caltrans. (c) The insurance coverage required shall be m amount not less .than $25 million general aggregate per year. 17.2 Evidence of Coverage. (a) Evidence of insurance in compliance with the requirements ofthis Section 17 shall be furnished to Caltrans by providing complete copies of the underlying policy(ies) of insurance in RCTC's possession, including all addenda and exclusions as well as by standard certificates of insurance. Neither the insurance policies nor the additional insured endorsements shall contain provisions or exclusions inconsistent with this Agreement. Such policies or endorsements shall include a notice of cancellation, of not less than 30 days (1 0 days for non- payment of premiums), to Caltrans. (b) Such insurance shall be issued by a company or companies authorized to transact business in the State. 17.3 Denial of Coverage. If the insurance carriers for the policies of insurance described in this Section 17 deny coverage to RCTC or Caltrans with respect to any Claims reported to such carriers, Caltrans and RCTC shall cooperate in good faith to establish whether, to what extent, and how to fund the cost of contesting the denial of coverage. 18. Default/Remedies. 18.1 Default. Subject to the extensions of time set forth in this Agreement and/or any extensions agreed upon by the Parties, failure or delay by either Party to perform any material term or provision of this Agreement constitutes a breach under this Agreement. The Party who so fails or delays must immediately commence to cure, correct, or remedy such failure or delay, and shall complete such cure, correction or remedy with reasonable diligence. 18.2 Notice of Default. The non-breaching Party shall give written notice of breach to the Party in breach, specifying the alleged breach. Except as otherwise expressly provided in this Agreement, any failures or delays by either Party in asserting any of its rights or remedies as 22 17336.02100\7011972.3 26 to any breach shall not operate as a waiver of any breach or of any such rights or remedies. Delays by either Party in asserting any of its rights and remedies shall not deprive either Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 18.3 Failure to Cure. In the event that the breaching Party fails to commence to cure, correct or remedy a breach within thirty (30) calendar days following receipt of written notice, or thereafter fails to diligently complete such cure, correction or remedy, a default of this Agreement shall be deemed to have occurred, and the defaulting Party shall be liable to the non- defaulting Party for any damages caused by such default. 18.4 Rights and Remedies. In the event of a default, the non-defaulting Party may exercise the right to seek damages, specific performance or other injunctive or equitable relief. The exercise of a Party's rights and remedies shall be cumulative with the exercise of other rights and remedies. The Parties agree that, during the period in which RCTC is operating the Toll Facility, termination for default shall not be an available remedy of Caltrans. Caltrans also acknowledges that it shall not have the right to collect or retain toll revenues on account of damages or otherwise. 18.5 Lenders rights and remedies. (a) Leasehold Mortgages. The holder of any mortgage, pledge or other encumbrance or collateral assignment of this Agreement, including the Lease, and any other agreements between the Parties related to the Initial Toll Facility, the Toll Facility and/or the Ultimate Toll Facility, and the beneficiary of any such deed of trust or assignment shall be referred to in this Agreement as a "Leasehold Mortgagee"; and the mortgage, pledge, hypothecation, deed of trust, assignment, or other security instrument shall be referred to in this Agreement as a "Leasehold Mortgage". Leasehold Mortgages shall be subject to the following: (i) The provisions set forth in Section 20.2(c) of this Agreement. (ii) RCTC shall provide to Caltrans a fully executed copy of the original note or other evidence of indebtedness secured by any Leasehold Mortgage, together with written notice of the address of the Leasehold Mortgagee (or the address of a trustee, fiscal agent or other person or entity acting on behalf of a number of Leasehold Mortgagees) to which notices may be sent. In the event of an assignment of such Leasehold Mortgage, a copy thereof, together with written notice of the address of the assignee thereof (or the address of a trustee, fiscal agent or other person or entity acting on behalf of a number of assignees) to which notices may be sent, shall be delivered to Caltrans. (iii) All rights acquired by Leasehold Mortgagees under any Leasehold Mortgage shall be subject to each and all of the provisions of this Agreement, and to all rights of Caltrans hereunder, none of which provisions or rights is or shall be waived by Caltrans by reason of the giving of such Leasehold Mortgage; but nothing herein shall limit or restrict the rights of Leasehold Mortgagees as set forth in this section. Caltrans and RCTC agree that while any Leasehold Mortgage is in existence, there shall be no agreement between Caltrans and 23 17336.02100\7011972.3 27 RCTC for any modification or amendment of this Agreement that may have a material adverse impact on the rights of the Leasehold Mortgagee without the consent of the Leasehold Mortgagee, provided that such consent shall not be unreasonably withheld or delayed. The Leasehold Mortgagee shall use its reasonable best efforts to respond to any request for a modification or amendment within a reasonable period of time. (iv) Notwithstanding any foreclosure of any such Leasehold Mortgage, RCTC shall remain liable to Caltrans for the payment of all sums owed to Caltrans hereunder and the performance of all of the provisions of this Agreement which are to be carried out and performed by RCTC. (b) Rights and Obligations of Leasehold Mortgagees. As long as any Leasehold Mortgage created in accordance with this section shall remain unsatisfied and Caltrans has received the information specified in Section 18.5(a)(ii) above, the following provisions shall apply: (i) In the event Caltrans shall have issued a notice of default under Section 18.2 hereof, a copy of which Caltrans shall deliver to the Leasehold Mortgagee, and RCTC shall have failed to commence cure of the default within the specified cure period, Caltrans shall provide notice to the Leasehold Mortgagee of RCTC's failure to cure ("Failure to Cure Notice"). Upon receipt of the Failure to Cure Notice, the Leasehold Mortgagee shall have the right (but not the obligation) to remedy such default or cause the same to be remedied by its qualified and competent designee to effect such cure (a "Substituted Entity"); and Caltrans shall accept such performance by or at the instigation of such Leasehold Mortgagee or Substituted Entity as if the same had been done by RCTC. The Leasehold Mortgagee shall have thirty (30) days following receipt from Caltrans of the Failure to Cure Notice to commence cure of the default, provided that prior to commencing any cure of an RCTC default, the Leasehold Mortgagee shall first provide notice to Caltrans of its intent to commence cure as permitted hereunder. (ii) RCTC hereby constitutes and appoints the Leasehold Mortgagee as its authorized RCTC representative and attorney-in-fact with full power, in RCTC's name, place and stead, and at RCTC's sole cost and expense, to enter upon the Toll Facility and to perform all acts required or permitted to be performed herein, but only in the event that RCTC is in default hereunder, and fails to timely commence cure of such default, as evidenced by Caltrans' issuance of the Failure to Cure Notice. (iii) In the event that the default of RCTC is such that the Leasehold Mortgagee, in order to cure the default, shall be required to assume all of RCTC's rights and obligations hereunder, the Leasehold Mortgagee shall execute all documents reasonably requested by Caltrans effecting such assumption. (iv) Any payment to be made or action to be taken by a Leasehold Mortgagee hereunder shall be deemed properly to have been made or taken by the Leasehold Mortgagee if such payment is made or action is taken by a nominee, agent, or assignee of the right of such Leasehold Mortgagee. 24 17336.02100\7011972.3 28 (v) The Parties hereto shall give the Leasehold Mortgagee notice of any proceedings for condemnation of all or part of the Toll Facility or this Agreement. The Leasehold Mortgagee shall have the right to intervene and be made a party to any such condemnation proceedings, and Caltrans and RCTC do hereby consent that the Leasehold Mortgagee may be made such a party or an intervener. (vi) No Leasehold Mortgagee, nor any owner of the leasehold estate whose interest shall have been acquired by, through, or under any Leasehold Mortgage or whose interest shall have been derived immediately from any holder thereof, shall become personally liable under the provisions of this Agreement unless and until such time as the Leasehold Mortgagee or such owner elects to assume any rights of RCTC hereunder. Upon any permitted assignment of this Agreement, including the Lease, by a Leasehold Mortgagee or any party whose interest shall have been derived immediately therefrom, the assignor shall be relieved of any further liability which may accrue hereunder from and after the date of such assignment, provided that the assignee shall execute and deliver to Caltrans a recordable instrument of assumption wherein such assignee shall assume the rights and obligations of RCTC and agree to perform and observe all provisions ofthis Agreement as applicable to RCTC. (vii) If the holders of more than one such Leasehold Mortgage shall provide written notice to Caltrans of Leasehold Mortgagee's intent to cure a default of RCTC, Caltrans shall accept such notice and cure from the holder whose Leasehold Mortgage was the earliest to be recorded. (viii) The rights granted herein to Leasehold Mortgagees shall be enforceable by such Leasehold Mortgagees. In the event any action or proceeding is brought to enforce or interpret the provisions hereof or to seek damages arising under this Agreement or performance hereunder, or to declare the rights of the Parties hereto or of such Leasehold Mortgagees, the prevailing party (including such Leasehold Mortgagees, if prevailing) shall be entitled to costs and expenses actually and reasonably incurred (including reasonable attorneys' fees). (c) Cooperation. Caltrans and RCTC shall cooperate by including in this Agreement, by suitable amendment from time to time, any provision which may reasonably be requested by any proposed lender for the purpose of implementing the lender and Leasehold Mortgagee protection provisions contained in this Agreement and allowing such lender reasonable means to protect and preserve its lien (including the lien ofthe Leasehold Mortgage) on the occurrence of a default under the terms of this Agreement. Caltrans and RCTC each agree to execute and deliver (and to acknowledge, if necessary, for recording purposes) any agreement necessary to effect any such amendment; provided, however, that any such amendment shall not in any way affect the term or any payments due under this Agreement nor otherwise in any other material respect adversely affect any rights of Cal trans or RCTC under this Agreement. 18.6 Dispute resolution. (a) RCTC and Caltrans shall make a good faith attempt to resolve all disputes. In the case of a dispute, the following procedure shall govern: 25 17336.02100\7011972.3 29 (1) Representatives of Caltrans and RCTC shall attempt to resolve the dispute within fifteen ( 15) Days, or such longer period as agreed on by the Parties. (2) If the representatives of Caltrans and RCTC are unable to resolve the dispute, the matter shall be referred to a senior officer of Caltrans (with authority to resolve the dispute) and to the RCTC Executive Director. The foregoing senior officers of the Parties shall attempt to resolve the dispute within fifteen ( 15) Days, or such longer period as agreed on by the Parties. (3) If the senior officer of Caltrans and the RCTC Executive Director are unable to resolve the dispute, and if the disputed amount claimed by a Party does not exceed $500,000 and, in the aggregate, unresolved disputes do not exceed $5,000,000, either Party may demand that the dispute be submitted to binding arbitration. The amounts specified in the foregoing sentence shall be subject to annual adjustment, commencing as of the first day on which the Initial Toll Facility is placed into toll operations, in an amount equal to the percentage increase in the Index as of the effective date hereof. ( 4) If the dispute does not meet the specifications above, the Parties may agree to submit the dispute to arbitration or other form of alternative dispute resolution, or either Party may seek any other legal remedies available. (b) Not by way of limitation, the following provisions of this Agreement shall be specifically subject to the dispute resolution provisions set forth in this section: Section 5.5, Section 5.9 and Section 8.5. (c) Available remedies to the Parties shall include, without limitation, (i) injunctive relief and other equitable remedies, (ii) specific performance, (iii) termination, in whole or in part, of any obligation on the part of the prevailing Party to reimburse the losing Party for the disputed work at issue conducted by the losing Party, (iv) the right of the prevailing Party to recover monies paid to the losing Party as reimbursement for the disputed work at issue, or portions thereof, conducted by the losing Party, and (v) the right of the prevailing Party to reimbursement for costs incurred in conducting or completing work ordered by the losing Party. 19. Transfer Back to State. 19.1 Transfer of Property to Caltrans at End of Term. At the end of the term of this Agreement, including any extension terms, or upon any earlier termination of this Agreement pursuant to the terms set forth in Public Utilities Code section 130244(c)(6), all personal property of RCTC owned by RCTC and related to the Toll Facility, including the signs, gantries, other tolling equipment, traffic control devices and video surveillance and enforcement equipment, and other similar equipment utilized for the operation of the Toll Facility, excluding any computer software or hardware for which a license may be required, shall automatically become the property of Caltrans. Such property shall be transferred to Caltrans in its "as is" condition subject to all faults, liens and encumbrances. 26 17336.02100\7011972.3 30 19.2 Condition of Toll Facility at End of Term. Per Public Utilities Code section 130240(g) and 130244(c)(6), the Toll Facility shall be returned to Caltrans in a condition that meets the performance and maintenance standards established by Caltrans for existing State- operated transportation facilities of substantially equivalent size, location and character. The Parties agree that, if RCTC complies with the Maintenance Standards, the Toll Facility shall be deemed to meet the performance and maintenance standards of Caltrans. 19.3 Transfer of Obligations for Toll Facility to Cal trans. At the end ofthe term of this Agreement, including any extension terms, all maintenance and other obligations of RCTC shall become the responsibility of Caltrans, other than, unless otherwise agreed upon by the Parties, any then-existing financing obligations ofRCTC to third parties that relate to the Toll Facility. 19.4 Punch List. The Parties agree that a punch list, to include all outstanding maintenance and repair obligations of RCTC related to the Toll Facility, shall be developed by the Parties one (1) year prior to transfer of the Toll Facility to Caltrans. RCTC shall complete all agreed upon items on the punch list prior to the end of the term of this Agreement. 19.5 Transfer of Records at End of Term. At the end of the term of this Agreement, RCTC shall transfer to Caltrans all records pertaining to material maintenance, operations, unresolved complaints, safety and modifications of the Toll Facility generated within five (5) years prior to termination of this Agreement and maintained by RCTC. 20. Other Miscella,neous Standard Provisions. 20.1 Approvals. (a) Caltrans' Approvals. Whenever Caltrans' comment, approval or consent is required under this Agreement, such comment, approval or consent shall not be unreasonably withheld or delayed and, unless otherwise expressly provided herein, Caltrans' consent or approval shall be deemed given ifCaltrans has not responded to RCTC's request therefor within twenty-one (21) Days (or such other time period specified in this Agreement) after such request is received, or for Major Modifications, within a reasonable period of time, not to exceed the timeframe set forth by law for the encroachment permit process. (b) RCTC Approvals. Whenever RCTC's comment, approval or consent is required under this Agreement, such comment, approval or consent shall not be unreasonably withheld or delayed and, unless otherwise expressly provided herein, RCTC' s consent or approval shall be deemed given ifRCTC has not responded to Caltrans's request therefor within twenty-one (21) Days (or such other time period specified in this Agreement) after such request is received, provided that such time may be extended by mutual agreement. 20.2 Assignment of Agreement. (a) Except as provided in clause (c) below, any proposed assignment ofthis Agreement to a private entity shall require Caltrans' approval, in its sole discretion. Any proposed assignment shall require three (3) months prior written notice to Caltrans. Any potential assignee shall immediately upon request provide information reasonably required by 27 17336.02100\7011972.3 31 Caltrans to determine whether said potential assignee can meet the obligations of this Agreement. RCTC may assign its right, title and interest in and to toll revenues without Caltrans' approval. This paragraph is not intended to and shall not limit the rights of any Leasehold Mortgagee as set forth in Section 18.5 of this Agreement. (b) Any proposed assignment of this Agreement to a public entity shall require three (3) months prior written notice to Caltrans. Such notice shall include provision to Caltrans of evidence that the proposed assignee has the demonstrated financial ability to meet its obligations under this Agreement. Caltrans shall approve such assignment, within fifteen business (15) days of receiving notice from RCTC, unless it reasonably determines that the proposed assignee cannot meet the obligations of this Agreement. This paragraph is not intended to and shall not limit the rights of any Leasehold Mortgagee as set forth in Section 18.5 of this Agreement. Any potential assignee shall immediately upon request provide information reasonably required by Caltrans to determine whether said potential assignee can meet the obligations of this Agreement. (c) RCTC may, without the consent of Caltrans, assign, pledge, mortgage or otherwise encumber its respective interests in this Agreement including, without limitation, the Lease and any other related agreements, and/or any rights emanating therefrom, in order to secure financing or refinancing for the Toll Facility provided that RCTC retains responsibility for fulfilling the material obligations herein. Any amendment to the terms of this Agreement required as a result of a proposed refinancing, including, but not limited to, defeasance of existing bonds and issuance of new bonds, shall be subject to Caltrans' approval which shall not be unreasonably withheld or delayed. (d) Following any permitted assignment of this Agreement, RCTC shall be relieved of any further liability which may accrue hereunder from and after the date of such assignment, provided that the assignee shall execute and deliver to Caltrans a recordable instrument of assumption wherein such assignee shall assume the rights and obligations of RCTC and agree to perform and observe all provisions of this Agreement. 21. Subcontracting. RCTC may, in its sole discretion and in compliance with all applicable legal requirements, enter into subcontracts with third party contractors or consultants for performance of any of its obligations hereunder. Such rights of RCTC include the right of RCTC to subcontract for operation and/or maintenance of Toll Facility and, except as expressly set forth herein, for performance of any other obligations of RCTC under this Agreement. 22. Covenant to Cooperate. The Parties agree to take all reasonable steps; within the confines of existing laws, regulations or policy; for the effective implementation, operation and maintenance ofthe Toll Facility. While understanding the Parties cannot control the actions of the public or the ultimate users of the State Highway System nor can they control nature or acts of God, the Parties expressly agree to take all reasonable and necessary steps to avoid or minimize the effect of operational conflicts between the Toll Facility and the General Purpose Lanes. Such reasonable and necessary steps shall include, but not be limited to, maintenance by Caltrans, in good condition and repair, that portion of the General Purpose Lanes providing ingress to and egress from the Toll Facility. 28 17336.02100\7011972.3 32 23. Designation of Representatives. Caltrans shall designate a Caltrans representative to represent Caltrans and RCTC shall designate an RCTC representative to represent RCTC. All communications between the two agencies shall be channeled through the designated representatives. 24. Notice. Any notice provided pursuant to or required by this Agreement shall be in writing and shall be deemed sufficiently provided when sent by certified mail, return receipt requested, to the Parties at the following addresses: RCTC: Riverside County Transportation Commission 4080 Lemon Street, Third Floor Riverside, California 92501 Attn. ------- Fax: ------- CAL TRANS: Attn. Fax: Any notice so given shall be considered received by the other Party three (3) days after deposit in the U.S. Mail, first class postage prepaid, addressed to the Party at the above address. Actual notice shall be deemed adequate notice on the date .actual notice occurred, regardless of the method of service. 25. Force Majeure. The failure of performance by either Party (except for payment obligations) hereunder shall not be deemed to be a default where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor, railroad, or suppliers; acts of the other Party; acts or failure to act of any other public or governmental agency orentity(other than that acts or failure to act ofthe Parties); or any other causes beyond the control or without the fault of the Party claiming an extension of time to perform or relief from default. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent to the other Party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by mutual agreement between the Parties. 26. Bankruptcy; Estate of the Debtor. Upon the filing, petition or application for relief of the Bankruptcy Court, RCTC agrees and stipulates that the Initial Toll Facility and/or any element of the Ultimate Toll Facility, excluding any toll plazas, gantries and equipment cabinets; conduit, fiber, cameras, readers, signage and supporting or related computerized communications systems; and other toll related toll operations equipment and systems, are integrated elements of the State Highway System. RCTC further acknowledges that its interest in the Initial Toll Facility and/or any element of the Ultimate Toll Facility, other than the excluded equipment and systems referenced in the foregoing sentence, are possessory rights derived from this Agreement 29 I 7336.02100\7011972.3 33 including, without limitation, the Lease. RCTC agrees and acknowledges that the integrated elements of the State Highway System as noted above are also an integral element of the national federal aid highway system whose continued and efficient operation strongly implies the public's interest in travelling safety and the inter-regional transportation of goods and services. 27. Access for Maintenance or Operations Purposes. Access to any portion of the Toll Facility by Caltrans and to the General Purpose Lanes by RCTC for maintenance and/or operations purposes of either Party shall be through notice and coordination with the other Party. 28. Airspace Reserved. Airspace over any portion of the Ultimate Toll Facility is hereby expressly reserved to the Caltrans, with the exception of toll collection equipment, gantries and toll enforcement equipment. 29. Liens. RCTC agrees that under no circumstance shall RCTC allow any lien to attach to any portion of the General Purpose Lanes or to any portion of the Ultimate Toll Facility arising out of or related to the actions of RCTC and/or any of its contractors, whether constructed, completed or accepted. To the extent any lien is recorded or asserted in violation of the foregoing, RCTC agrees to promptly act to remove or satisfy said lien. Satisfaction or removal may be by payment, procurement of bond or otherwise. 30. Amendment, Repeal or Supersession. References to statutes, manuals orpolicies shall be deemed to incorporate any future amendment or supersession of said statutes, manuals or policies. If said statute, manual or policy has been repealed and if no amendment or supersession has been promulgated or effected, or if the effect of amendment or supersession is materially different from the predecessor statute, manual or policy, then Parties agree to meet and confer and amend the Agreement as warranted. 31. Agreement is Contractual in Nature and Not Mere Implementation of Statute. The Parties agree this Agreement and its terms are contractual in nature and not the mere implementation of otherwise applicable statutes or authorities. 32. No Partnership or Joint Venture. In no event shall this Agreement be construed as establishing a partnership or joint venture or similar relationship between the Parties. 33. Amendments. This Agreement may be amended at any time by the mutual consent of the Parties by an instrument in writing; however, no amendments or other modifications ofthis Agreement shall be binding unless executed in writing by both Parties hereto, or their respective successors or assigns. 34. Waiver. No delay or om iss ion in the exercise of any right or remedy of a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of either Party shall be deemed to waive or render unnecessary such Party's consent to or approval of any subsequent act of the other Party. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 30 17336.02100\7011972.3 34 35. Captions. The captions included in this Agreement are for convenience only and in no way define, limit, or otherwise describe the scope or intent of this Agreement or any provision hereof, or in any way affect the interpretation of this Agreement. 36. Interpretation. The Parties acknowledge that this Agreement is the product of mutual arms-length negotiation and drafting and that each Party has been represented by legal counsel in the negotiation and drafting of this Agreement. Accordingly, the rule of construction which provides that ambiguities in a document shall be construed against the drafter of that document shall have no application to the interpretation and enforcement of this Agreement. 37. Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the Parties hereunder. 38. Governing Law. This Agreement shall be governed by the Jaws of the State of California. Venue shall be in the California Superior Court for San Bernardino County. 39. Third Party Beneficiaries. There are no third party beneficiaries of this Agreement, and this Agreement is not intended, and shall not be construed, to be for the benefit of, or be enforceable by, any other person or entity whatsoever. 40. Entire Agreement. This Agreement, the attached exhibits and any other documents specifically referenced and incorporated herein constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersede all prior verbal or written agreements and understandings between the Parties with respect to the matters addressed in this Agreement. 41. Memorandum of Agreement I Further Assurances. RCTC and Caltrans agree to execute and record a memorandum of this Agreement, in the form attached hereto as Exhibit "D", against the Leased Property. The Parties further agree to execute any additional instruments as may be reasonably necessary to carry out the purposes and intent of this Agreement and to fulfill their respective obligations hereunder. 42. Time of the Essence. Time is ofthe essence in the performance ofthis Agreement. [Signatures on following page] 31 17336 02100\7011972.3 35 SIGNATURE PAGE TO TOLL FACILITIES AGREEMENT STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION By: ___________ _ Title: APPROVED AS TO FORM AND PROCEDURE: By: _____________ _ Attorney, Department of Transportation 17336.02100\7011972.3 32 36 RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: ______________ _ Title: APPROVED AS TO FORM: Legal Counsel Best, Best & Krieger LLP Exhibit "A'' General Description of Initial and Ultimate Toll Facility Initial Toll Facility The Initial Toll Facility which comprises the minimum and first portion of the Ultimate Toll Facility to be constructed under the Ultimate Project is presented in Figure 1 and includes: Extension of the existing OCTA 91 Express Lanes approximately 7.5 miles east from the Orange/Riverside County line to 1-15. Addition of a direct connector from the "RCTC 91 Express Lanes" to the median of 1-15 south of SR-91 to Ontario Avenue. The tolled lanes include one-lane connectors approximately 2.8 miles in each direction in the median of 1-15 providing access and egress to and from the "RCTC 91 Express Lanes". Additional Phases-Ultimate Toll Facility The additional Phases of work that may be added and constructed to provide for the Ultimate Toll Facility presented in Figure 1 below include: Extension of the tolled express lanes on 1-15 south ofSR-91 from Ontario Avenue approximately 1.9 miles south to Cajalco Road. Addition of direct connectors from the "RCTC 91 Express Lanes" to the median ofl-15 extending approximately 1.4 miles north ofSR-91 to Hidden Valley Parkway. Figure 1 Initial and Ultimate Toll Facilities Map 17336.02100\7011972.3 37 lEGENO ~nil!dT>)J.'fit:.iHy ~ Ultlm11k h"!!l ~J:dht:t 17336 02100\7011972.3 34 38 f.xhibit "If' Description of Ultimate Pro Jed The description of the Ultimate Project \Vbid1 comprises of the Initial Toll Facility, Ultimate Toll Facility and other non-toll roadway improvements as depicted below in Figure 2 and Figure 3 and commonly rcfcrn.:d to as ''Initial Project'" and "Future Phased Improvements" include: 17336.02!00\7011972.3 • Extension of the existing OCTA 91 Expruss Lanes appwximateiy 7,5 miles o::ast fi'Om the Orange/Riverside County line to 1-15. • Addition of a direci connector from the '·RCTC 91 Express Lanes"' to the median of 1·15 south of SR-91 to Ontario Avenue. The tolled lanes include one-lane connectors approximately 2Jl miles in each direction in the median of 1-15 providing access and egress 1o and from the .. RCTC 9! Express Lanes". • Extension of the tolled express lanes on l-l S south of SR-9 I from Ontario Avenue approximately 1.9 miles south to. Cajalco Road. • Addition of direct connectors from the "RCTC 91 Express Lanes·· to the median of l-15 extending approximately 1.4 miles north of SR-91 to Hidden Valley Parkway. • Addition of one general purpose lane in each directicm on the SR-91 fmm SR-71 to l-15 • Addition of general purpose lanes and other roadway improvement:-; t>n SR·91 extending east of I-15 on SR-91 3.3 miles to Pierce Street in the City of Riverside, Addition of one general purpose lanes in each direction from the SR- 71 /SR-91 interchange to SR-241 in Orange County. • Add a new trec\vay-to-frcnvay eonncctur from eastbound SR-91 to northbound SR-71. Add other related improvements to the SR-91/SR-71 interchnnge • Add direct connectors to and from the north at 1-I 5. Add one-lane connectors in each direction from ihe SR-91 tolled Express Lanes to future Express Lanes or HOV lanes in the median of 1-15. Extend the one lane Express Lane in each direction in the median of 1-I 5 approximately nne and one half mile nurlh to Hidden Valley PJrkway_ Exhibit B-1 39 17336.02100\7011972.3 lEGEHD SR-91 Initial Project Ultirn.atePro)e<t ._ Westbound lane; • fa;tbound lant>S l-IS lllitia!PrGje<t Ultimate Projw t Ni!rtilbound lane; • Southbound lanes lniiioll Pmjl'n futurePhmd fmprO¥ements ~\ Figure 2 Ultimate Project Map fUTURE PHASED IMPROVEMENTS Pha5t 1 -Tollltd UJli!'Sl Lme Dire<t Connectors t~ and from I· IS North Phase 2-General Pur~ lAnes from SR-141 toSR-71 Ph•se J. SR-71/SR-91 inter<hange improvements Pha.e4-SJl91 General Pw~tane imprOYementl east o!l-15 Phase 5 -Extend Tolled Express lAnes on 1-15 from Ontario Avt'fllle to (ajalco Road Figure 3 Typical Cross-Section WESTWUND Exhibit B-2 40 !ASTSDUNP Exhibit "C" Legal Description of Leased Property-Initial Toll facility The following legal description of the Initial Toll Facility is presented in draft based on current project information with the intent to define the property interests granted to Riverside County Transportation Commission (RCTC) by California Department of Transportation (Caltrans) for the operation and maintenance Initial Toll Facility as further defined under this Agreement. The final legal description will be developed and included as part of this Agreement through an amendment following the completion of the design and construction ofthe Initial Toll Facility. General Description The stationing shown herein is Project Schematic Engineering Stationing based on centerline alignments described as follows and shown on SR-91 Corridor Improvement Project Roadway Concept Plan Sheets 1 through 8, inclusive, prepared by Parsons dated June I 0, 20 II: Being strips of varying width over and along the SR-91 from Station 0+00 (Riverside County/Orange County Line) to 398+74.93, the I-I5 from Station 2036+00 to 2155+08 and the SR-9I to I-15 Flyover from Station from 1340+00 to 1427+50. SR-91 Centerline Alignment: Beginning at the intersection of the Riverside County/ Orange County Line with the Centerline ofthe SR-9I, being Station 0+00.00; thence North 68°49'44" East I336.I9 feet to station 13+36.I9 and the beginning of a curve concave northwest having a radius of 3000.00 feet; thence easterly along said curve 1282.29 feet through a central angle of 24°29'24" to an equation station, the station Back is 26+18.48, the station Ahead is 2I+91.83; thence North 44°20'21" East 2233.25 feet to station 44+29.08 and the beginning of curve concave southeast having a radius of 4000.00 feet; thence easterly along said curve 2103.38 feet through a central angle of 30°07'43" to station 65+32.46; thence North 74°28'04" East 5150.24 feet to station 116+82.70 and the beginning of a curve concave south having a radius of 4000.00 feet; thence easterly along said curve 2682.67 feet through a central angle of 38°25'35" to station 143+65.37; thence South 67°06'21" East I604.3I feet to station 159+69.68 and the beginning of a curve concave northeasterly having a radius of 4000.01 feet; thence along said curve 938.48 feet through a central angle of 13°26'34" to station I69+08.I6; thence South 80°32'54" East 3792.52 feet to station 207+00.68; thence South 9°27'06" West 12.00 feet to the beginning of a new offset centerline, the beginning station being 207+00.68, also being the beginning of a curve concave north having a radius of 4000.00 feet, a radial line to said beginning bears South 9°27'06" West; thence easterly along said curve 1382.61 feet through a central angle of 1 9°48' 16" to station 220+83.29; thence North 79°38'49" East 3748.42 feet to station 258+3I.7I and the beginning of a curve concave north having a radius of 5000.00 feet; thence easterly along said curve 1600.00 feet through a central angle of I8°20'05" to station 274+31.7I; thence on a non-tangent line South 8I 0 54'58" East 8347.1I feet to station 357+ 78.82 and the beginning of a curve concave north having a radius of 3000.00 feet; thence easterly along said curve I400.61 feet through a central angle of 26°44'59" to station 37I+79.43; thence North 71°20'03" East 2695.49 feet to station 398+74.92. Exhibit C-1 17336.02100\7011972.3 41 SR-91 to 1-15 Flyover Alignment: Beginning at a point on the above described centerline of the SR-91 said point being at station 330+00.00, said point also having the Flyover Alignment station of 1330+00.00 for the purpose of this description; thence South 81 °54'58" East 3384.64 feet to station 1363+84.64 and the beginning of a curve concave north having a radius of 1500.00 feet; thence easterly and northeasterly along said curve a distance of740.26 feet through a central angle of28°16'33" to station 1371+24.90; thence North 69°48'28" East 594.84 feet to station 1377+19.74 and the beginning of a curve concave southwesterly having a radius of 1600.00 feet; thence northeasterly, easterly, southeasterly, and southerly along said curve a distance of 2812.53 feet through a central angle of 100°42'59" to station 1405+32.27 and a point on the centerline ofthe 1-15 (the 1-15 station for this point is 2170+79.73); thence along said centerline South 9°28'33" East 2358.43 feet to station 1428+90. 70 (the 1-15 station for this point is 2148+50.00). 1-15 Centerline Alignment: Beginning at the intersection of the centerline of the SR-91 as described above with the centerline of the I-15, said intersection being SR-91 station 395+11.99 and 1-15 station 2190+46.09, also being a point on a curve concave westerly having a radius of 5000.14 feet, a radial line to said point bears North 68°48'39" East; thence southerly along said curve 1022.22 feet through a central angle of 11 °42' 48" to station 2180+23.87; thence South 9°28'33"East 3302.64 feet to station 2147+21.23 and the beginning of a curve concave northeasterly having a radius of 3999.90 feet; thence southerly and southeasterly along said curve 2283.96 feet through a central angle of32°42'58" to station 2124+37.27; thence South 42°11'31" East 901.20 feet to station 2115+36.07 and the beginning of a curve concave southerly having a radius of 3999.99 feet; thence southeasterly and southerly along said curve 2759.57 feet through a central angle of 39°31 '41" to station 2087+76.50; thence South 2°39'50"East 396.96 feet to station 2083+79.54 and the beginning of curve concave easterly having a radius of3998.74 feet; thence southerly along said curve 755.35 feet through a central angle of 10°49'23" to station 2076+24.19; thence South 13°29' 13"East 445.91 feet to station 2071+78.27 and the beginning of a curve concave westerly having a radius of 3999.91 feet; thence southerly along said curve 1619.59 feet through a central angle of 23°11 '58" to station 2055+58.69; thence South 9°42'45"West 412.90 feet to station 2051+45.79 and the beginning of a curve concave easterly having a radius of 5000.00 feet; thence southerly along said curve 3070.13 feet through a central angle of 35° I 0'52" to station 2020+ 75.66; thence South 25°28'07"East 2816.23 feet to station 1 992+59.43 and the beginning of a curve concave northeasterly having a radius of 4999.67 feet; thence along said curve 1711.09 feet through a central angle of 19°36'32" to station 1975+48.34. Exhibit C-2 17336.02100\7011972.3 42 Route Station Width SR-91 0+00 to 9+36.18 58.00' 9+36.18 to 13+36.18 Transition from 58.00' to 63.00' 13+36.1 0 to 20+92.35 63.00' 20+92.35 to 26+ 18.48 Back= 21 +95.83 85.00' Ahead 21+95.83 Ahead to 25+95.89 Transition from 85.00' to 80.00' 25+95.89 to 31 +64.00 80.00' 31 +64.00 to 35+09 .30 Transition from 80.00' to 77.00' 35+09.30 to 44+29.08 Transition from 77.00' to 72.00' 44+29.08 to 116+82.70 72.00' 116+82.70 to 128+37.09 Transition from 72.00' to 78.00' 128+37.09 to 302+64.94 78.00' 302+64.94 to 340+00.00 Transition from 78.00' to 136.00' WB SR-91 340+00.00 to 369+30.60 Transition from 27.25' to Toll 24.68' Entrance EB SR-91 340+00.00 to 391 +00.00 Transition from 27.25' to Toll Exit 23.00' SR-91 to 1-340+00.00=1340+00.00 Flyover Station to 81.50' 15 Flyover 1 358+09.64 1358+09.64 to 1362+10.17 Transition from 81.50' to 10 1.00' 1362+ 10.17 to 1374+00.00 69.50' 1374+00.00 to 1380+40.08 Transition from 69.50' to 116.33' 1380+40.08 to 1427+50.00 = 2148+50.00 57.50' 1-15 Station 1-15 2155+08 to 21 15+50 70' 2115+50 to 2107+00 Transition 70' to 71' 21 07+00 to 2036+00 71' Exhibit C-3 17336.02100\7011972.3 43 Exhibit "D" Form of Memorandum of Agreement RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Riverside County Transportation Commission P.O. Box 12008, Riverside, CA 92502-2208 Attention: Clerk ofthe Board Exempt from Recording fees per Government Code§ 27383 (Space above tor Recorder·s use) MEMORANDUM OF AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY THIS MEMORANDUM OF AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY ("Memorandum of Agreement") is made and entered into on , 201_ by and between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as "Caltrans," and the RIVERSIDE COUNTY TRANSPORTATION COMMISSION, referred to herein as "RCTC." Caltrans and RCTC are sometimes referred to herein individually as "Party", and collectively as the "Parties". This Memorandum of Agreement is made in reference to that certain Caltrans/RCTC Toll Facility Agreement (Including Real Property Lease) State Route 91 Express Lanes in Riverside County ("TF A") made and entered into by and between the Parties on , 201 Pursuant to the TF A, Caltrans agreed to lease to RCTC that certain freeway right of way legally described in Exhibit "A", attached hereto and incorporated herein by reference, for a term of fifty (50) years, commencing as of the first day on which the full Initial Toll Facility (as defined in the TF A) opens for public use and toll operations, assuming said facility is built. All of the terms and conditions of the TFA are made part ofthis Memorandum of Agreement as though fully set forth herein. The Parties shall record a lease commencement date certification setting forth the actual commencement date of the lease described herein, provided that if no such document is recorded, the lease commencement date shall be deemed to be the actual date the full Initial Toll Facility opens for public use and toll operations. Signatures on following page Exhibit D-1 17336 021 00\70 11972.3 44 SIGNATURE PAGE TO MEMORANDUM OF AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY * Signatures must be notarized. 17336.02100\7011972.3 State of California Department of Transportation: By: * Its: ---------------------------- Date: -------------------------- Approved as to legal form: By: --------------------------- Its: Riverside County Transportation Commission: By: * Its: Date: -------------------------- Approved as to legal form: BEST BEST & KRIEGER LLP By: --------------------------- General Counsel to Riverside County Transportation Commission Exhibit D-2 45 17336.02100\7011972.3 EXHIBIT "A" TO MEMORANDUM OF AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY Description ofCaltrans right of way subject to lease under the TFA [Attached behind this page] Exhibit D-3 46 NOTARY ACKNOWLEDGMENT (California All-Purpose Acknowledgment) STATE OF CALIFORNIA) ) ss. COUNTY OF RIVERSIDE) On ------201 before me, ___________ , notary public, personally appeared __________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ofNotary Public ATTACHED TO: MEMORANDUM OF AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY Exhibit D-4 17336.02100\7011972.3 47 NOTARY ACKNOWLEDGMENT (California All-Purpose Acknowledgment) STATE OF CALIFORNIA) ) ss. COUNTY OF RIVERSIDE) On ______ , 201_ before me, ___________ , notary public, personally appeared __________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies ), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ofNotary Public ATTACHED TO: MEMORANDUM OF AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY 17336.02100\7011972.3 48 Toll Facility Agreement State Route 91 Corridor Improvement Project for the Western Riverside County Programs and Projects Committee · Aprillt, 2012 Addreue•- RCTC'suseofdeslgJl-bulld fordesian.construetlon. Utifltyrela¢a~tlon,property •qu!sition,~ ..... ~ FIO!eJ.andri!Sponslblffties foreach<~genc;yforproject funding.de$\IJ(Iovei'Sight. quality, Inspection, etc. 3/20/2012 Addrnses... .RCTC'sSOyeanctlease rl&hbfofUllledel(pti!SS ~ne5withlnthec.Qrridor O.fin•a- RCTC'suse,operatlon. malntenanc:e, reporting. pubUcsaffty,polidns,etc, 1 Michael Blomquist, PE Toll Program Director 3/20/2012 2 AGENDA ITEM 8 --------------- RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 26, 2012 TO: Western Riverside County Programs and Projects Committee FROM: Mark Lancaster, Interim Right of Way Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Agreement with Riverside Transit Agency for the State Route 91 Shuttle Service for County Employee Parking Lot STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 12-31-069-00 with Riverside Transit Agency (RTA) for shuttle service for the County employee parking lot for a two-year term in the amount of $218,400; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. BACKGROUND INFORMA T/ON: As a part of the construction of the State Route 91 High Occupancy Vehicle (SR-91 HOV) project, the westbound Ninth Street on ramp will be moved from its current location at Ninth Street to a new location at Tenth Street. This relocation of the on ramp will affect the county employee parking lots, both temporarily and permanently, on Vine Street between Ninth and Eleventh Streets. During the design phase of the SR-91 HOV project, Caltrans was able to reconfigure the parking lots to recoup all of the existing parking spaces on a permanent basis. However, during construction, portions of the parking lots will be unavailable for use. Due to limited parking nearby, the Commission has agreed to make the Downtown Metrolink east parking auxiliary lot available and to provide shuttle service, at no cost to the employees, to and from the station and the County Administrative Center during business hours. The construction affecting the employee parking lots will be phased and reinstated in stages to maximize the number of spaces available for employee parking. RT A has agreed to implement and operate a temporary shuttle service on a reimbursable basis during construction. The service will operate Monday through Friday, approximately every 15 minutes, between 6:30 a.m. to 8:30 a.m., 11:30 Agenda Item 8 50 I a.m. to 1 :30 p.m. and 4:30 p.m to 6:30 p.m. This schedule can be adjusted to accommodate county employee needs and as construction progresses. The estimated annual cost of this service is $109,200 and will be available for a period of up to two years. While the duration of this service is anticipated to be less than two years based on a time estimation provided by Caltrans, the actual duration won't be known until the SR-91 HOV construction contractor provides a schedule. Financial Information In Fiscal Year Budget: 1 N/A Year: I FY 2012/13 + Amount: I $218,400 Source of Funds: l1 989 Measure A Highway Funds Budget Adjustment: I N/A GL!Project Accounting No.: 003005814012223181401 Fiscal Procedures Approved: ~~ I Date: I 03/19!12 Attachment: Draft Agreement with RTA Agenda Item 8 51 I CO-OPERATIVE AGREEMENT NO. 12-004 BETWEEN RIVERSIDE TRANSIT AGENCY AND RIVERSIDE COUNTY TRANSPORTATION COMMISSION THIS AGREEMENT is made and entered into this __ day of March 2012, by and between the Riverside Transit Agency, 1825 Third Street, Riverside, California 92507, (hereinafter referred to as "AGENCY") and the Riverside County Transportation Commission, 4080 Lemon Street, 3rd Floor, Riverside, California 92501 (hereinafter referred to as " the Commission"). WITNESSETH: WHEREAS, the Commission requires assistance from AGENCY to provide Riverside County employees and the general public with convenient, safe, and accessible transportation through the provision of a temporary shuttle service during the State Route 91 High Occupancy Vehicle construction project (SR-91 HOY construction project); and WHEREAS, AGENCY agrees to implement and operate a temporary shuttle service between the Riverside-Downtown Metrolink Station east side auxiliary lot, located at Tenth Street and Commerce Street, and the Riverside County Administration Center, hereinafter referred to as Route 54; and WHEREAS, the Commission agrees to provide operating costs for the AGENCY to provide these temporary shuttle services for Route 54; NOW, THEREFORE, it is mutually understood and agreed by AGENCY and the Commission as follows: ARTICLE 1. COMPLETE AGREEMENT A. This Agreement, including all exhibits and documents incorporated herein and made applicable by reference, constitutes the complete and exclusive statement of the term(s) and condition(s) ofthe agreement between AGENCY and the Commission and it 52 Agreement# 12-004 Riverside Transit Agency Riverside County Transportation Commission supersedes all pnor representations, agreements, understandings and communications with respect thereto. B. Changes to any portion of this Agreement shall not be binding except when specifically confirmed in writing by an authorized representative of AGENCY and the Commission by way of a written amendment to this Agreement and issued in accordance with the provisions contained in this Agreement. ARTICLE 2. SEVERABILITY If any provision, term or condition of this Agreement is held to be invalid, illegal or unenforceable, in whole or in part, then such provision, term or condition shall not affect the validity of any remaining provision, term or condition of this Agreement. All remaining provisions, terms and conditions ofthis Agreement shall continue in full force and effect. ARTICLE 3. AUTHORITY DESIGNEE A. The Chief Executive Officer of AGENCY, or designee, shall have the authority to act for and exercise any of the rights of AGENCY as set forth in this Agreement, subsequent to and in accordance with, the authorization granted by AGENCY'S Board of Directors. B. The Executive Director, or designee of the Commission, shall have the authority to act for and exercise any of the rights ofRCTC as set forth in this Agreement. ARTICLE 4. TERM OF AGREEMENT This Agreement shall commence on or about April 1, 2012, and shall continue in full force and effect during the SR-91 HOV construction project which has an estimated completion date of February 28, 2014, unless earlier terminated or extended as provided in this Agreement. ARTICLE 5. RESPONSIBILITIES OF AGENCY A. AGENCY shall provide services necessary to operate bus Route 54 service, as further described in the attached Exhibit A: Route 54 Service Description. 2 53 Agreement #12-004 Riverside Transit Agency Riverside County Transportation Commission B. AGENCY shall submit a monthly invoice to the Commission by the tenth business day of the month. Each monthly invoice will include daily revenue service hours and ridership data. C. AGENCY shall cause a Certificate of Insurance to be generated, by AGENCY'S insurance company, which names the Commission as additional insured and provides insurance coverage in the following minimum amounts: 1. Commercial General Comprehensive Liability Insurance (contractual liability included) with a limit of not less than $1,000,000 per occurrence, and $2,000,000 general aggregate, 2. Automobile Liability, with a combined single limit liability for primary bodily injury and primary property damage for not less than $1,000,000, and 3. Workers' Compensation as required under California law. ARTICLE 6. RESPONSIBILITIES OF RCTC A. The Commission agrees to provide operating costs on a monthly basis as determined by AGENCY's monthly reconciliation reports for the services as shown in Exhibit A, Route 54 Service Description, which is attached to and by this reference incorporated into and made a part of this Agreement. B. Reimbursement will be provided to RT A with 1989 Measure A Highway Funds. C. RCTC agrees to remit payment to RT A for all properly documented invoices no later than 30 days from the date of the approved invoice. ARTICLE 7. REVENUE OBLIGATION AGENCY and the Commission mutually agree that the Commission's estimated operating cost obligation under this Agreement shall be approximately $109,200 for a twelve-month period. This cost obligation shall be based upon actual service hours provided at a current rate of $70/hour which will be subject to reasonable increases throughout the term of the Agreement. 3 54 ARTICLE 8. INDEMNIFICATION Agreement # 12-004 Riverside Transit Agency Riverside County Transportation Commission A. AGENCY shall defend, indemnify and hold RCTC, its officers, agents and employees harmless from and against any and all liability, loss, expense (including reasonable attorney's fees), or claims for injury or damages arising out of or in connection with the performance of this Agreement and/or the provision of the Route 54 service due to the negligent or intentional acts or omissions of AGENCY, its officers, agents, employees or contractors. B. RCTC shall defend, indemnify and hold AGENCY, its officers, agents and employees harmless from and against any and all liability, loss, expense (including reasonable attorney's fees), or claims for injury or damages arising out of or in connection with the performance of this Agreement due to the negligent or intentional acts or omissions of RCTC, its officers, agents, or employees. ARTICLE 9. INDEPENDENT CONTRACTOR A. AGENCY'S relationship to the Commission in the performance of this Agreement is that of an Independent Contractor. AGENCY'S personnel performing services under this Agreement shall at all times be under AGENCY'S exclusive direction and control and shall be employees of AGENCY and not employees ofthe Commission. AGENCY shall pay all wages, salaries and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, such as social security, income tax withholding, unemployment compensation, worker's compensation and similar matters. B. The Commission's relationship to AGENCY in the performance of this Agreement is that of an Independent Contractor. The Commission's personnel performing services under this Agreement shall at all times be under RCTC'S exclusive direction and control and shall be employees of the Commission and not employees of AGENCY. The Commission shall pay all wages, salaries and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, such as social security, income tax withholding, unemployment compensation, worker's compensation and similar matters. 4 55 ARTICLE 10. TERMINATION Agreement# 12-004 R1verside Transit Agency Rivers1de Count\' Transportation Commission A. Either party may terminate this Agreement for its convenience any time, in whole or in part, by giving the other party written notice thereof. Upon termination, the Commission shall pay AGENCY its allowable costs incurred to date of that portion terminated, and AGENCY shall cease the expenditure of funds which are expected to be reimbursed by Commission. B. AGENCY may terminate this Agreement for the Commission's default if the Commission breaches any material provision of this Agreement and fails to cure such breach within thirty (30) calendar days of receipt of written notice from AGENCY. If AGENCY so terminates for default, then the Commission shall pay AGENCY its payment for actual bus usage incurred to date of termination based on the actual number of revenue service hours provided, not to exceed the maximum revenue obligations stated in Article 7. That payment shall be provided in full to AGENCY within thirty (30) calendar days of receipt of the Notice ofTermination. C. The Commission may terminate this Agreement for AGENCY'S default if AGENCY breaches any material provision of this Agreement and fails to cure such breach within thirty (30) calendar days of receipt of written notice from the Commission. If the Commission so terminates for default, then the Commission shall pay AGENCY its payment for actual bus usage incurred to date of termination based on the actual number of revenue service hours provided, not to exceed the maximum revenue obligations stated in Article 6. That payment shall be provided in full to AGENCY within thirty (30) calendar days of receipt of the Notice ofTermination. ARTICLE 11. AUDIT AND INSPECTION OF RECORDS A. AGENCY shall permit the authorized representative of the Commission, during standard business hours, to examine, inspect and audit all records and accounts pertaining to this Agreement. AGENCY shall make such items readily accessible to the Commission during the term of this Agreement and for a period of four (4) years from the date of final payment by the Commission hereunder. B. The Commission shall permit the authorized representative of AGENCY, 5 56 Agreement# 12-004 Riverside Transit Agency Riverside County Transportation Commission during standard business hours, to examine, inspect and audit all records and accounts pertaining to this Agreement. The Commission shall make such items readily accessible to AGENCY during the term of this Agreement and for a period of four (4) years from the date of final payment to AGENCY hereunder. ARTICLE 12. FORCE MAJEURE Either party shall be excused from performing its obligations under this Agreement during the time and to the extent that it is prevented from performing by an unforeseeable cause beyond its control, including but not limited to: any incidence of fire or flood; acts of God; commandeering of material, products, plants or facilities by the federal, state or local government; national fuel shortage; or a material act or omission by the other party; or strike, when satisfactory evidence of such cause is presented to the other party, and provided further that such nonperformance is unforeseeable, beyond the control and is not due to the fault or negligence of the party not performing. ARTICLE 13. NOTICES All notices hereunder and communications regarding the interpretation of the terms of this Agreement, or changes thereto, shall be effected by delivery of said notice(s) in person, via electronic mail, or by depositing said notices in the u_s. mail, registered or certified mail, returned receipt requested, postage prepaid and addressed as follows: TO COMMISSION: Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor p_o_ Box 12008 Riverside, CA 92502-2208 ATTENTION: Anne Mayer Executive Director (951) 787-7141; Fax: (95 1) 787-7920 6 57 TO AGENCY: Riverside Transit Agency 1 825 Third Street P.O. Box 59968 Riverside, CA 92517-1968 ATTENTION: Vince Rouzaud ChiefProcurement & Logistics Officer (951) 565-5180 Fax: (951) 565-5001 Agreement# I 2-004 Riverside Transit Agency Riverside County Transportation Commission ARTICLE 14. FEDERAL, STATE AND LOCAL LAWS A. AGENCY warrants that in the performance ofthis Agreement, it shall comply with all applicable federal, state and local laws, statutes and ordinances and all lawful orders, rules and regulations promulgated thereunder. B. The Commission warrants that in the performance ofthis Agreement, it shall comply with all applicable federal, state and local laws, statutes and ordinances and all lawful orders, rules and regulations promulgated thereunder. ARTICLE 15. GOVERNING LAW AND VENUE The law of the State of California, without regard to any conflicts of law provisions, shall govern any action or claim arising out of this Agreement. The parties agree that the venue for any action or claim arising out of or related to this Agreement shall be Riverside County. If any action or claim concerning this Agreement is brought by a third party, the parties agree to use their best efforts to obtain a change of venue to Riverside County. [Signatures on following page] 7 58 --------------------------------------------- Agreement# 12-004 Riverside Transit Agency Riverside County Transportation Commission SIGNATURE PAGE TO AGREEMENT NO. 12-004 IN WITNESS WHEREOF, the parties hereto have caused this Agreement No. 12-004 to be executed on the date first above written. RIVERSIDE TRANSIT AGENCY RIVERSIDE COUNTY TRANSPORTATION COMMISSION By ______________________ __ By ________________________ __ Larry Rubio ChiefExecutive Officer APPROVED AS TO FORM: By ________________________ __ Kennard R. Smart, Jr. General Counsel Anne Mayer Executive Director APPROVED AS TO FORM: By ______________________ _ 8 59 Best, Best & Krieger LLP General Counsel AGENDA ITEM 9 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 26, 2012 TO: Western Riverside County Programs and Projects Committee FROM: Jillian Edmiston, Staff Analyst Brian Cunanan, Multimodal Services Manager THROUGH: Robert Yates, Multimodal Services Director SUBJECT: Awards for Freeway Service Patrol Tow Truck Service STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement No. 12-45-045-00 to Pepe's Towing (Pepe's) for tow truck services on Beat No. 18 of the Freeway Service Patrol (FSP) program for a three-year term, and two one-year options to extend the agreement, in an amount not to exceed $1,520,000; 2) Award Agreement No. 1 2-45-046-00 to Pepe' s for tow truck services on Beat No. 19 of the FSP program for a three-year term, and two one-year options to extend the agreement, in an amount not to exceed $1,015,000; 3) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 4) Forward to the Commission for final action. BACKGROUND INFORMA T/ON: In 1986, the Commission established itself as the Riverside County Service Authority for Freeway Emergencies (RC SAFE) after the enactment of SB 1199 in 1985. The purpose of the formation of SAFEs in California was to provide call box services and, with excess funds, provide additional motorist aid services. Funding for RC SAFE is derived from a one dollar per vehicle registration fee on vehicles registered in Riverside County. Initially, these funds were used only for the call box program. As additional motorist aid services were developed, SAFE funds were also used to provide FSP and the Inland Empire 511 traveler information services as part of a comprehensive motorist aid system in Riverside County. In 1990, Proposition C was passed to fund transportation improvements and to help reduce traffic congestion in California. From this, the FSP program was created by Caltrans, which developed the corresponding Local Funding Allocation Plan to distribute funds to participating jurisdictions. In addition to funding received from Caltrans, agencies are required to contribute a 25 percent local Agenda Item 9 60 match. For the Commission, SAFE revenues are used to meet this match requirement. The Commission, acting 1n its capacity as the SAFE, is the principal agency in Riverside County, in partnership with Caltrans and the California Highway Patrol (CHP), managing the FSP program. The purpose of the FSP program is to provide a continuously roving tow services patrol along designated freeway segments (referred to as beats) to relieve freeway congestion and facilitate the rapid removal of disabled vehicles and those involved in minor accidents on local freeways. Contracts to provide FSP tow service are competitively bid as needed for each beat. Currently, the Commission contracts with four tow truck operators to provide service on a total of nine beats Monday through Friday during the peak commute hours, 5:30 a.m. to 8:30 a.m. and 3:00 p.m. (1 :00 p.m. on Fridays) to 7:00p.m. Staff sought a compet1t1ve solution to award tow service contracts to qualified firms for Beat Nos. 18 and 19, two of the nine total beats administered by the Commission. Beat No. 18 operates on Interstate 215 from the Riverside County line to Alessandro Boulevard and requires the use of three tow trucks during normal service hours. Beat No. 19 operates on Interstate 215 from Alessandro Boulevard to State Route 74/41h Street, which requires the use of two tow trucks during normal service hours. Procurement Process This procurement was conducted in accordance with established Commission procurement policies and procedures. Staff established certain m1mmum qualifications required of each potential proposer and developed a weighted evaluation criterion to select qualified tow services contractors for Beat Nos. 18 and 19. Non-price elements of the evaluation criteria included experience, the relative qualifications of the firms, proposed work plan, and the proposer's ability to respond to the requirements set forth under the terms of the request for proposals (RFP). RFP No. 1 2-45-045-00 was released and advertised by the Commission on January 30, 2012. A pre-proposal conference was conducted by the Commission on February 14, and was attended by two firms. Staff responded to all questions submitted by potential proposers prior to the March 1 proposal deadline. Two responsive and responsible firms -Navarro's Towing and Recovery (Navarro's) and Pepe's -submitted proposals in response to the RFP for services on Beat No. 18. One responsive and responsible firm -Pepe's -submitted a proposal in response to the RFP for services on Beat No. 19. Staff reached out to several tow firms to determine why these firms did not submit a proposal in response to the RFP. Reasons for not submitting a proposal included the firm's new yard in Riverside Agenda Item 9 61 was not completed in time, a significant distance between the beat and a yard, and financial issues. An evaluation committee cons1st1ng of representatives from the CHP Inland Division, San Bernardino Associated Governments, and Commission staff evaluated each proposal in accordance with the evaluation criteria set forth in the RFP. The Committee performed site visits, interviewed the proposing firms, and provided final scoring based on a comprehensive evaluation of each firm's written proposal and interview. Beat No. 18 Proposals submitted in response to Beat No. 18 were scored by the evaluation committee based upon the criteria set forth in the RFP. The two firms submitted hourly rates for tow services that ranged from a low of $51 . 7 4 per hour to a high of $53.00 per hour. Beat No. 18 services are currently provided by Pepe's at an hourly rate of $51.00. The all-inclusive hourly service rate for this beat, as well as Beat No. 19, includes all direct costs (e.g., fuel, labor, equipment), indirect costs (e.g., fringe benefits, overhead), and profit to provide the subject services. The overall rankings, inclusive of pricing, listed from highest to lowest total evaluation score for Beat No. 18 are as follows: Firm Hourly Rate Overall Ranking Pepe's $51.74 pt Navarro's $53.00 2nd Based on the overall score according to the evaluation criteria listed in the RFP, the evaluation committee recommends Pepe's for award of Beat No. 18. Beat No. 19 Pepe's is the only firm that submitted a responsive and responsible proposal in response to the RFP for services on Beat No. 19. The proposal was scored by the evaluation committee based upon the criteria set forth in the RFP. Pepe's proposed hourly rate for tow services is $51.7 4. Beat No. 19 services are currently provided by Pepe's at an hourly rate of $52.00. Based on the overall score according to the evaluation criteria listed in the RFP, the evaluation committee recommends Pepe's for award of Beat No. 19. Pepe's currently provides service for five of the Commission's FSP beats. Pepe's has performed satisfactorily and has a good working relationship with staff. Agenda Item 9 62 CONCLUSION: Staff recommends Pepe's for award of Beat Nos. 18 and 19 based on the evaluation process discussed. Additionally, Pepe's has had an exceptional working relationship with the Commission for several years. The proposed all-inclusive hourly rate of $51.74 by Pepe's for Beat Nos. 18 and 19 are considered fair and reasonable based upon adequate price competition under the RFP process and the historical cost experience of the Commission for comparable services. As noted above, current hourly rates for these two beats range from $51 .00 to $52.00. Staff recommends the award of Agreement No. 12-45-045-00 to Pepe's for tow truck services on Beat No. 18 in an amount not to exceed $1 ,520,000 and Agreement No. 12-45-046-00 to Pepe's for tow truck services on Beat No. 19 in an amount not to exceed $1,015,000. The Commission's standard form FSP services agreement will be entered into with Pepe's for each beat subject to any changes pursuant to legal counsel review. All obligations incurred by the Commission under the terms of these awards are funded using state funds and local SAFE revenues and are subject to continued funding from the state of California for the Riverside County FSP program. The FY 2012/13 cost of $507,000 will be included in the FY 2012/13 budget. Financial Information In Fiscal Year Budget: I N/A I Year: I FY 2012/13 + Amount: I $2,535,000 Source of Funds: I State of California Budget Adjustment: I N/A SAFE DMV Fees GL!Project Accounting No.: 002173 81014 201 45 81002 Fiscal Procedures Approved: ~~ I Date: I 03/15/12 Attachment: Standard Form FSP Services Agreement Agenda Item 9 63 Note Items in red/bold/underline will be filled in with contract execution Agreement No. 12-45-045-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION, ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES, AND [NAME OF CONTRACTOR] FOR FREEWAY SERVICE PATROL FOR BEAT NO.~ WITHIN RIVERSIDE COUNTY 1. PARTIES AND DATE. 1.1 This Contract ("Contract") is made and entered into this ~!!l day of Month, 2012, by and between the Riverside County Transportation Commission, a public entity, acting as the Riverside County Service Authority for Freeway Emergencies (referred to herein as "SAFE"), and [NAME OF FIRM], a [LEGAL STATUS OF CONTRACTOR e.g., CORPORATION] (referred to herein as "CONTRACTOR"). SAFE and CONTRACTOR are sometimes individually referred to herein as "Party" and collectively as "Parties". 1.2 The California Highway Patrol herein referred to as "CHP" and California Department of Transportation, herein referred to as "Caltrans" are hereby expressly designated as third-party beneficiaries of CONTRACTOR's performance under this Contract. 2. RECITALS. 2.1 WHEREAS, the Riverside County Transportation Commission ("RCTC") is a California County Transportation Commission existing under the authority of Section 130050 et seq. of the California Public Utilities Code; 2.2 WHEREAS, RCTC is authorized, pursuant to Section 2550 et seq. of the California Streets and Highways Code, to act as SAFE for purposes of providing a motorist aid system, including provision of freeway service patrols; 2.3 WHEREAS, SAFE requires the services of a CONTRACTOR to provide the freeway service patrol professional services as described in the Scope of Services; 2.4 WHEREAS, SAFE has determined that CONTRACTOR is best quQiified to perform the required services; 17336.0002A\6030198.4 64 2.5 WHEREAS, the CONTRACTOR is able and willing to perform the required services under the terms and conditions of this Contract; 2.6 WHEREAS, RCTC is the short range transportation planning agency for Riverside County, and programs federal, state, and local funds. RCTC has entered into a Memorandum of Understanding with Caltrans and CHP to fund peak period freeway service patrols on selected freeway segments in Riverside County; and 2.7 WHEREAS, Section 21718 (a) of the California Vehicle Code specifically authorized CHP to be responsible for freeway service patrols stopping on freeways for the purpose of rapid removal of impediments to traffic. Article 3, Section 91, of the Streets and Highways Code, states that Caltrans has responsibility to improve and maintain the state highways. Caltrans also has the responsibility for traffic management and removing impediments from the highways. NOW, THEREFORE, for the consideration hereinafter stated, SAFE and CONTRACTOR agree as follows: 3. TERMS. 3.1 General Scope of Services. 3.1.1. Contract Oversight. Caltrans and CHP will jointly oversee the Services. Both agencies will have responsibility for overseeing Service performance and ensuring that the CONTRACTOR abides by the terms of this Contract. CHP is responsible for dispatch services to incident locations within the CONTRACTOR's patrol limits. The dispatching will be done in accordance with this Contract. A Standard Operating Procedures ("SOP") manual will be given to the CONTRACTOR explaining the types of incidents to which his/her operators may be dispatched. 3.1.2 Beat Descriptions. The Freeway Service Patrol ("FSP") will operate on selected freeway segments referred to herein as "beats". Each beat has specific turnaround locations and designated drop locations identified by the CHP. Exhibit "A-1" shows the specific limits, number of tow trucks, number of back-up trucks and hours of operation and Exhibit "A-2" details the fiscal years 2013, 2014, and 2015 holidays for the CONTRACTOR's specific beat. SAFE reserves the right to add or delete holidays to the work schedule, provided that SAFE provides CONTRACTOR seven (7) days advanced notice of such addition or deletion. Travel time to and from the beat will be at the expense of the CONTRACTOR. At any time during the term of this Contract, SAFE reserves the right to adjust beat specifications to better accommodate demand for the Services. These changes can occur during the course of this Contract through written change orders. If warranted and during the hours of operation of the Services, the 17336.0002A\6030198.4 2 65 CONTRACTOR may be requested to temporarily reassign his/her FSP operators/trucks to locations outside the assigned beat. 3.1.3 Description of Services. CONTRACTOR shall be responsible for those services set forth in this Section 3.1.3, hereinafter referred to as "Services." The purpose of the FSP program is to provide for the rapid removal of disabled vehicles and vehicles involved in minor accidents from the freeway. Where conditions permit, safe removal of small debris will be required. CONTRACTOR vehicles shall be exclusively dedicated to the Services during the hours of operation. All vehicle maintenance activities shall be conducted during non-Services hours. When conducting the Services on an FSP shift, the CONTRACTOR's vehicle shall display all FSP markings and the vehicle operator shall wear an FSP uniform, as detailed in Exhibit "A-3". The CONTRACTOR's vehicle operators shall assist motorists involved in minor accidents and those with disabled vehicles. They shall be responsible for clearing the freeway of automobiles, small trucks and small debris. When and where conditions warrant, service may be executed on the freeway shoulders. Where conditions do not warrant, vehicle operators will remove the vehicles from the freeway to provide service. The FSP vehicles shall continuously patrol their assigned beat, respond to CHP dispatches for Services, use the designated turnaround locations and use the CHP identified designated drop locations. All FSP services shall be provided at no cost to the motorist. FSP vehicle operators shall not be accept gratuities, perform secondary towing services, recommend secondary tows, or recommend repair/body shop businesses. FSP vehicle operators may be required to change flat tires, provide "jump" starts, provide one gallon of gasoline or diesel fuel, temporarily tape cooling system hoses and refill radiators. Vehicle operators may spend a maximum of ten (1 0) minutes per disablement in attempting to mobilize a vehicle. If a vehicle cannot be mobilized within the ten (1 0) minute time limit, it shall be towed to a designated drop location identified by the CHP. The motorist can request the FSP vehicle operator to call the CHP Communications center to request a CHP rotational tow or other services. FSP operators shall not be allowed to tow as an independent contractor from an incident that occurred during the FSP shift unless called as a rotation tow by CHP. If called as a rotation tow after a FSP shift, the vehicle operator must remove all FSP markings and change his/her FSP uniform. There may be some instances where FSP operators may be requested to provide assistance to CHP officers. FSP operators shall follow the instructions of the CHP officer at the scene of any incident within the scope of the FSP program. 3.1.4. The SOP Manual. To promote a safe work environment and for the maintenance of professionalism, the most current version of the SOP manual shall, at all times, be followed by the CONTRACTOR and its vehicle operators. The 17336.0002A \6030198.4 3 66 SOP manual, as such manual may from time to time be amended, is incorporated into this Contract by reference. CONTRACTOR shall be notified and provided with a copy of any changes to the SOP manual. Drivers found not to be in compliance with FSP procedures, as set forth in the SOP manual or this Contract, may be suspended or terminated from the FSP program and the CONTRACTOR may be fined three (3) times the hourly Contract rate in one (1) minute increments until a replacement vehicle is provided (Driver and Truck must return to beat compliant with all FSP requirements), or fined for the entire shift at three (3) times the hourly rate at the discretion of the FSP Field Supervisors. 3.1.5 Check ln. Upon arrival at the location for each instruction to provide Services, and upon completion of each such request, CONTRACTOR shall check in with the CHP field supervisor using the radio provided by SAFE as set forth in Section 3.2, entitled "Equipment Requirements". 3.2 Equipment Requirements. CONTRACTOR shall comply with all equipment requirements outlined in RFP No. FSP12-45-045-00. Notwithstanding any other provision contained in the RFP, radio and AVL equipment shall be supplied by SAFE and installed (mounted) in all CONTRACTOR vehicles by SAFE's installation vendor, and shall remain mounted in all CONTRACTOR vehicles at all times. 3.3 Commencement of Services. The CONTRACTOR shall commence work upon receipt of a written Notice to Proceed from SAFE. 3.4 Term. The term of this Contract shall be from Month 1, 2012 through Month 31, 2015 unless earlier terminated as provided herein. SAFE, at its sole discretion, may renew this Contract for a total of two (2) separate one year terms, based on the option-year rates. SAFE shall also have the right to renew this Contract from one month up to a one year term after the initial term by providing notice as provided below. SAFE must provide written notice to CONTRACTOR no less than ninety (90) days prior to the end of the applicable term, indicating its renewal of the Contract. CONTRACTOR shall complete the Services within the term of this Contract, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Contract shall remain in effect following the termination of this Contract. If SAFE, at its sole discretion, renews this Contract for one or both of the additional separate one year terms as provided, the option-year rates shall be as follows: SCHEDULE OF HOURLY RATES Classification Option Year 1 Hourly Rate Option Year 2 Hourly Rate Contract -tow truck operators $ per hour $ per hour 3.5 SAFE's Representative. SAFE hereby designates the SAFE Executive Director or his or her designee, to act as its Representative for the performance of this Contract ("SAFE's Representative"). SAFE's Representative shall have the authority to act on behalf of SAFE for all purposes under this Contract. 17336.0002A\6030198.4 4 67 SAFE's Representative shall also review and give approval, as needed, to the details of CONTRACTOR's work as it progresses. CONTRACTOR shall not accept direction or orders from any person other than the SAFE's Representative or his or her designee. 3.6 CONTRACTOR'S Representative. CONTRACTOR hereby designates [INSERT NAME, TITLE], to act as its representative for the performance of this Contract ("CONTRACTOR's Representative"). CONTRACTOR's Representative shall have full authority to act on behalf of CONTRACTOR for all purposes under this Contract. The CONTRACTOR's Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Contract. CONTRACTOR shall work closely and cooperate fully with SAFE's Representative and any other agencies which may have jurisdiction over or an interest in the Services. CONTRACTOR's Representa- tive shall be available to the SAFE staff at all reasonable times. Any substitution in CONTRACTOR's Representative shall be approved in writing by SAFE's Representative. 3.7 Substitution of Key Personnel. CONTRACTOR has represented to SAFE that certain key personnel will perform and coordinate the Services under this Contract. Should one or more of such personnel become unavailable, CONTRACTOR may substitute other personnel of at least equal competence upon written approval by SAFE's Representative. In the event that SAFE's Representative and CONTRACTOR cannot agree as to the substitution of the key personnel, SAFE shall be entitled to terminate this Contract for cause, pursuant to the provisions of Section 3.15. The key personnel for performance of this Contract are: [LIST NAMES AND TITLES]. 3.8 Review of Work and Deliverables. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Contract may be required to be submitted to SAFE's Representative in draft form, and SAFE's Representative may require revisions of such drafts prior to formal submission and approval. In the event that SAFE's Representative, in his or her sole discretion, determines the formally submitted work product to be inadequate, SAFE's Representative may require CONTRACTOR to revise and resubmit the work at no cost to SAFE. Upon determination by SAFE that CONTRACTOR has satisfactorily completed the Services required under this Contract and within the term set forth in Section 3.4, SAFE shall give CONTRACTOR a written Notice of Final Completion. Upon receipt of such notice, CONTRACTOR shall-incur no further costs hereunder, unless otherwise specified in the Notice of Completion. CONTRACTOR may request issuance of a Notice of Final Completion when, in its opinion, it has satisfactorily completed all Services required under the provisions of this Contract. 3.9 Appearance at Hearings. If and when required by SAFE, CONTRACTOR shall render assistance at public hearings or other meetings related to the performance of the Services. 3.1 0 Standard of Care: Licenses. CONTRACTOR represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Contract. CONTRACTOR shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. CONTRACTOR warrants that all employees and subcontractors shall have 17336 0002A\60301984 5 68 sufficient skill and experience to perform the Services assigned to them. CONTRACTOR further represents and warrants to SAFE that its employees and subcontractors have all licenses, permits, qualifications (including medical certification) and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Contract. CONTRACTOR shall perform, at its own cost and expense and without reimbursement from SAFE, any services necessary to correct errors or omissions which are caused by the CONTRACTOR's failure to comply with the standard of care provided for herein, and shall be fully responsible to SAFE for all damages and other liabilities provided for in the indemnification provisions of this Contract arising from the CONTRACTOR's errors and omissions. Any employee of CONTRACTOR or its subcontractors who is determined by SAFE to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to SAFE, shall be promptly removed from performing the Services by the CONTRACTOR and shall not be re-employed to perform any of the Services. 3.11 Opportunity to Cure. SAFE may provide CONTRACTOR an opportunity to cure, at CONTRACTOR's expense, all errors and omissions which may be disclosed during performance of the Services. Should CONTRACTOR fail to make such correction in a timely manner, such correction may be made by SAFE, and the cost thereof charged to CONTRACTOR. 3.12 Inspection of Work. CONTRACTOR shall allow SAFE's Representative to inspect or review CONTRACTOR's performance of Services in progress at any time. SAFE/Caltrans/CHP also reserves the right to audit all paperwork demonstrating that CONTRACTOR participates in an employee alcohol/drug-testing program and the DMV Pull Notice Program. 3.13 Laws and Regulations. CONTRACTOR shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Services, including all Cai/OSHA requirements, and shall give all notices required by law. CONTRACTOR shall be solely liable for all violations of such laws and regulations in connection with Services. If the CONTRACTOR performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to SAFE, CONTRACTOR shall be solely responsible for all costs arising therefrom. CONTRACTOR shall defend, indemnify and hold SAFE, their officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.14 Damage Complaints. Upon receiving a damage complaint from a motorist assisted by the CONTRACTOR, that the CONTRACTOR damaged their vehicle while lending assistance, the CONTRACTOR shall notify CHP immediately regarding the nature of the damage complaint and its disposition. The CONTRACTOR shall reply to the motorist by telephone within twenty-four (24) hours of receiving the damage complaint notification. If necessary, the CONTRACTOR shall send either his or 17336.0002A\6030198.4 6 69 her authorized representative or his or her insurance company representative to inspect the vehicle and complete an incident report within forty-eight (48) hours after receiving the damage complaint. If the investigation shows that damage to the vehicle could have been caused by the CONTRACTOR, the CONTRACTOR shall negotiate in good faith to try and resolve the issue and shall report to the CHP the result of the negotiations. All complaints shall be resolved within a reasonable period of time after being received. 3.14.1 Complaint Review Committee. The FSP Technical Advisory Committee ("FSP TAC") is composed of voting members from CHP, SAFE and Caltrans. Voting members of the FSP T AC are hereby designated as the members of the Damage Complaint Review Committee ("DCRC"). If the DCRC finds that justifiable complaints are not resolved within a reasonable time frame, it can recommend that payment to the CONTRACTOR in the amount of the damage claim may be deducted from the CONTRACTOR's monthly invoice. 3.15 Termination. 3.15.1 Notice; Reason. SAFE may, by written notice to CONTRACTOR, terminate this Contract, in whole or in part, including, without limitation, the geographical territory covered by this Contract, at any time by giving written notice to CONTRACTOR of such termination, and specifying the effective date thereof ("Notice of Termination"). Such termination may be for SAFE's convenience or because of CONTRACTOR's failure to perform its duties and obligations under this Contract, including, but not limited to, the failure of CONTRACTOR to timely perform Services pursuant to the Scope of Services described in Section 3, entitled "Terms," as well as Section 7 of the RFP. CONTRACTOR may not terminate this Contract except for cause. 3.15.2 Discontinuance of Services. Upon receipt of the written Notice of Termination, CONTRACTOR shall discontinue all affected Services as directed in the Notice of Termination, and deliver to SAFE all Documents and Data, as defined in this Contract, as may have been prepared or accumulated by CONTRACTOR in performance of the Services, whether completed or in progress. 3.15.3 Effect of Termination For Convenience. If the termination is to be for the convenience of SAFE, SAFE shall compensate CONTRACTOR for Services fully and adequately provided through the effective date of termination as provided in the Notice of Termination. Such payment shall include a pro-rated amount of profit, if applicable, up through such effective date, but no amount shall be paid for anticipated profit on unperformed Services past such effective date. CONTRACTOR shall provide documentation deemed adequate by SAFE's Representative to show the Services actually completed by CONTRACTOR prior to the effective date of termination. This Contract shall terminate on the effective date of the Notice of Termination. 3.15.4 Effect of Termination for Cause. If the termination is for cause, CONTRACTOR shall be compensated for those Services which have been fully and adequately completed and accepted by SAFE as of the effective date of termination as provided in the Notice of Termination. In such case, SAFE may take over the work 17336.0002A \6030198.4 7 70 and prosecute the same to completion by contract or otherwise. Further, CONTRACTOR shall be liable to SAFE for any reasonable additional costs or damages incurred to revise work for which SAFE has compensated CONTRACTOR under this Contract, but which SAFE has determined in its sole discretion needs to be revised, in part or whole. Termination of this Contract for cause may be considered by SAFE in determining whether to enter into future contracts with CONTRACTOR. 3.15.5 Cumulative Remedies. The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Contract. 3.15.6 Procurement of Similar Services. In the event this Contract is terminated, in whole or in part, as provided by this Section, SAFE may procure, upon such terms and in such manner as it deems appropriate, services similar to those terminated. 3.15. 7 Waivers. CONTRACTOR, in executing this Contract, shall be deemed to have waived any and all claims for damages which may otherwise arise from SAFE's termination of this Contract, for convenience or cause, as provided in this Section. 3.15.8 Authorization to Terminate. The Executive Director of SAFE shall have the full authority and discretion to exercise SAFE's rights under this Section 3.15, entitled "Termination". 3.16 Trend Meetings. CONTRACTOR shall attend, or send a designated management-level representative, to all trend meetings (i.e. required FSP TAC meeting which meets every other month). These trend meetings will encompass focused and informal discussions concerning, but not limited to: scope, Services, schedule, current progress of Services, relevant cost issues, and future objectives. CONTRACTOR shall be responsible for having a representative attend all meetings (i.e. FSP TAC meetings) that has the ability to make management-level decisions on the behalf of the CONTRACTOR. If the CONTRACTOR cannot have a management-level representative at a meeting, CONTRACTOR shall notify SAFE and CHP prior to the meeting. Management-level attendance at these meetings shall be considered part of the CONTRACTOR's contractual responsibility. Meetings are scheduled, and CONTRACTOR will be notified of such schedule, no later than three (3) working days prior to the meeting. 3.17 Fees and Payment. 3.17.1 Amount to be Paid. Subject to the provisions set forth below for Services satisfactorily performed hereunder, SAFE shall pay the CONTRACTOR on a Time and Materials basis a ceiling price NOT TO EXCEED DOLLARS ($ ). 3.17.2 Maximum Payment is the Ceiling Price. SAFE shall not be obligated to pay costs which exceed the ceiling price set forth above, except as provided in Sections 3.15 and 3.17 .1 0. CONTRACTOR agrees to use its best efforts to perform the services and all obligations under this Contract within such ceiling price. 17336.0002A\6030198.4 8 71 3.17.3 Hourly Rate. For its performance of the Services, the CONTRACTOR shall be paid for labor expended directly in the performance of the Services at the rates specified below. The CONTRACTOR shall not be entitled to reimbursements for any expenses unless approved in advance in writing. SCHEDULE OF HOURLY RATES Classification Hourly Rate Contract -tow truck operators $ 3.17 .4 Payment Coverage. The compensation herein above specified will cover and include all applicable labor surcharges such as taxes, insurance and fringe benefits, as well as indirect costs, overhead, general and administrative expense, and profit. 3.17.5 Fines. Fines for starting late; leaving early; taking more than 15-minutes worth of breaks per 3-hour shift; or being ordered out of service by a CHP or Caltrans supervisor for Contract infractions shall be deducted from the CONTRACTOR's monthly invoice at three (3) times the hourly rate. 3.17.6 Invoices. Invoices for CONTRACTOR's Services shall be submitted monthly on forms approved by SAFE. Invoices will be routinely verified by CHP. To ensure prompt payment, most billing disputes may be resolved within ten (10) working days of written notice of dispute. However, at SAFE's discretion, reconciliation of disputed fines that sum to less than 2% of the months' Invoice may be corrected on the next month's Invoice to ensure prompt payment of the major portion of the invoice. Each Invoice shall include a cover sheet bearing a certification as to the accuracy of the statement signed by the CONTRACTOR's authorized officer. 3.17.6.1 Monthly Progress Reports. As part of its Invoice, CONTRACTOR shall submit a Monthly Progress Report, in a form determined by SAFE, which will cover the Invoice period and include spreadsheets showing hours expended for each day of the month per vehicle per beat, and the total for the term of the Contract to date. Submission of such Monthly Progress Report by CONTRACTOR shall be a condition precedent to receipt of payment from SAFE for each monthly Invoice submitted. 3.17.6.2 Payment Schedule. Invoice periods shall be based upon a calendar month, beginning with the first day of the month. SAFE shall reimburse CONTRACTOR for Services adequately provided under this Contract within thirty (30) days of receiving the current period invoice with no errors. If the Invoice is completed incorrectly by the CONTRACTOR it will delay payment. If SAFE fails to pay any amount owed to CONTRACTOR under this Contract within thirty (30) days after receipt of the invoice, CONTRACTOR may give SAFE a notice of failure to pay which shall set forth the invoice(s) and amount(s) which CONTRACTOR believes are thirty (30) days 17336.0002A\6030198.4 9 72 overdue. SAFE shall pay any undisputed invoice(s) and amount(s) within thirty (30) days of receipt of a notice of failure to pay. 3.17.7 Authorization to Inspect and Audit. The CONTRACTOR shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under this Contract. All such records shall be clearly identifiable. The CONTRACTOR shall permit the authorized representatives of SAFE, and any other government agency to inspect, audit and make transcripts or copies of any and all records, including ledgers and books of account, invoices, vouchers, cancelled checks, and any other documents, of CONTRACTOR relating to it and its subcontractor's performance under this Contract from date of Contract through and until expiration of three (3) years after completion of the Contract. Contracts with the CONTRACTOR's subcontractors shall include such provisions for such audits, as applicable. For purposes of audit, the date of completion of the Contract shall be the date of SAFE's payment for CONTRACTOR's final billing (so noted on the invoice) under this Contract, or a period of ninety (90) days from the date of SAFE's Notice of Final Acceptance. 3.17.8 Taxes. CONTRACTOR shall pay any sales, use, or other taxes, if any, attributable to the provision of the Services. 3.17.9 Source of Funding. It is understood that SAFE funding for the Services is being provided primarily from the State's FSP Funding program and the Department of Motor Vehicles ("DMV") Registration Fees (funding source for Motorist Assistance Programs). It is acknowledged that at any time funds from the State and DMV Registration Fees are not available to SAFE for the full amount of this Contract, SAFE may terminate this Contract pursuant to Section 3.15 entitled "Termination." 3.17 .1 0 Extra Work. At any time during the term of this Contract, SAFE may request CONTRACTOR to perform Extra Work. "Extra Work" shall mean any work which is determined by SAFE to be necessary for proper completion of the Services, but which the Parties did not reasonably anticipate would be necessary at the time of the execution of this Contract and was not included in the Scope of Services. Extra Work, if any, shall be reimbursed at the same hourly rate as identified in Section 3.17.3. CONTRACTOR shall not perform, nor be compensated for Extra Work without obtaining authorization in the form of a written Extra Work Order issued by SAFE's Representative. For instance, Construction FSP services as it relates to construction activity can be considered Extra Work. In the event an Extra Work Order is not issued and signed by SAFE's Representative, CONTRACTOR shall not provide such Extra Work. However, no compensation or reimbursement for Extra Work shall be paid if it is not authorized by SAFE and if the cumulative total of such Extra Work under the Contract exceeds $25,000. All Extra Work in a cumulative total in excess of $25,000 must be approved in advance by amendment to this Contract. 3.17.11 Most Favored Customer. CONTRACTOR agrees that, throughout the term of this Contract, it shall not enter into any FSP services agreement with any government agency with whom it has either existing contractual relationship or has no contractual relationship that predates this Contract, pursuant to which 17336.0002A 16030198.4 10 73 CONTRACTOR agrees to charge FSP services fees less than those as indicated in this Contract for substantially the same level of FSP services contemplated by this Contract. Should SAFE establish that such lower fees have been agreed to by CONTRACTOR with another government agency, CONTRACTOR agrees to renegotiate the fees or to refund SAFE an amount equal to the difference between the fees indicated in this Contract and the fees charged to other government agency customer. 3.18 Delay in Performance. 3.18.1 Excusable Delays. Neither Party shall be considered in default in the performance of its obligations to the extent that the performance of any such obligation is prevented or delayed by an Excusable Delay. Should CONTRACTOR be delayed or prevented from the timely performance of any act or Services required by the terms of the Contract by an Excusable Delay, Contractor's schedule for completion of tasks affected by such delay may be extended as set forth in Section 3.18.2. But in every case, CONTRACTOR's failure to perform must be reasonably beyond the control, and without the fault or negligence of the CONTRACTOR. Excusable Delays are acts of God or of the public enemy, acts or omissions of SAFE or other governmental agencies in either their sovereign or contractual capacities, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather. 3.18.2 Written Notice. If CONTRACTOR believes it is entitled to an extension of time due to conditions set forth in subsection 3.18.1, CONTRACTOR shall provide written notice to the SAFE within seven (7) working days from the time CONTRACTOR knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of CONTRACTOR to provide such timely notice shall constitute a waiver by CONTRACTOR of any right to an excusable delay in time of performance. 3.18.3 Mutual Contract. Performance of any Services under this Contract may be delayed upon mutual agreement of the Parties. Upon such agreement, CONTRACTOR's Schedule of Services (as defined in their Proposal) shall be extended as necessary by SAFE. CONTRACTOR shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 3.19 Status of CONTRACTOR/Subcontractors. 3.19.1 Independent Contractor. The Services shall be performed by CONTRACTOR or under its supervision. CONTRACTOR will determine the means, methods and details of performing the Services subject to the requirements of this Contract. SAFE retains CONTRACTOR on an independent contractor basis and not as an employee, agent or representative of the SAFE. CONTRACTOR retains the right to perform similar or different services for others during the term of this Contract. Any additional personnel performing the Services under this Contract on behalf of CONTRACTOR shall at all times be under CONTRACTOR's exclusive direction and control. CONTRACTOR shall pay all wages, salaries and other amounts due such personnel in connection with their performance of Services and as required by law. 1 7336.0002A\60301 98.4 11 74 CONTRACTOR shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, disability insurance, and workers' compensation insurance. 3.19.2 Assignment or Transfer. CONTRACTOR shall not assign, hypothecate, or transfer, either directly or by operation of law, this Contract or any interest herein, without the prior written consent of SAFE. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. Notwithstanding the foregoing, SAFE may transfer or assign any and all of its rights and obligations under this Contract, including, without limitation the rights to terminate this Contract, as assigned, pursuant to Section 3.15 hereof. 3.19.3 Subcontracting. CONTRACTOR shall not subcontract any portion of the work or Services required by this Contract, except as expressly stated herein, including the Scope of Services, without prior written approval of the SAFE. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Contract. SAFE shall have no liability to any subconsultant(s) for payment for services under this Contract or other work performed for CONTRACTOR, and any subcontract entered into by CONTRACTOR pursuant to the conduct of services under this Contract shall duly note that the responsibility for payment for the technical services or any other work performed shall be the sole responsibility of CONTRACTOR. 3.20 Ownership of Materials and Confidentiality. 3.20.1 Documents & Data; Licensing of Intellectual. Property. All plans, specifications, studies, drawings, estimates, materials, data, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, spreadsheets, or data magnetically or otherwise recorded on computer diskettes, prepared by or on behalf of CONTRACTOR under this Contract ("Documents and Data"), shall be made available to SAFE at all times during this Contract and shall become the property of SAFE upon the completion of the term of this Contract, except that CONTRACTOR shall have the right to retain copies of all such Documents and Data for its records. Should CONTRACTOR, either during or following termination of this Contract, desire to use any Documents and Data, it shall first obtain the written approval of SAFE. This Contract creates a no-cost, non-exclusive, and perpetual license for SAFE to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in the Documents and Data which are prepared or caused to be prepared by CONTRACTOR under this Contract ("Intellectual Property"). CONTRACTOR shall require all subcontractors to agree in writing that SAFE is granted a no-cost, non-exclusive, and perpetual license for any Intellectual Property the subcontractor prepares under this Contract. CONTRACTOR represents and warrants that CONTRACTOR has the legal right to license any and all Intellectual Property prepared or caused to be prepared by CONTRACTOR under this Contract. SAFE shall not be limited in any way in its use of the Intellectual Property at any time, provided that any such use not within the purposes intended by this Contract shall be at SAFE's sole risk. 17336.0002A\6030198.4 12 75 3.20.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to CONTRACTOR in connection with the performance of this Contract shall be held confidential by CONTRACTOR to the extent permitted by law, including, without limitation, the California Public Records Act, Government Code section 6250 et seq. Such materials shall not, without the prior written consent of SAFE, be used by CONTRACTOR for any purposes other than the performance of the Services as provided herein. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services, except as provided herein. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is generally known, or becomes known, to the related industry shall be deemed confidential. CONTRACTOR shall not use SAFE's name or insignia, photographs, or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production, or other similar medium without the prior written consent of SAFE. 3.21 Indemnification. CONTRACTOR shall indemnify and hold SAFE, RCTC, CHP, Caltrans and their directors, officials, officers, agents, contractors, consultants, employees, and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of, or incident to, alleged negligent acts, omissions, or willful misconduct of the CONTRACTOR, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services or this Contract, including without limitation, the payment of all consequential damages and other related costs and expenses. CONTRACTOR shall defend, at CONTRACTOR's own cost, expense and risk, any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against SAFE, RCTC, CHP, Caltrans or their directors, officials, officers, agents, contractors, consultants, employees, and volunteers. CONTRACTOR shall pay and satisfy any judgment, award, or decree that may be rendered against SAFE, RCTC, CHP, Caltrans or their directors, officials, officers, agents, consultants, employees, and volunteers, in any such suit, action, or other legal proceeding. CONTRACTOR shall reimburse SAFE, RCTC, CHP, Caltrans and their directors, officials, officers, agents, consultants, employees, and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. CONTRACTOR's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the CONTRACTOR, SAFE, RCTC, CHP, Caltrans or their directors, officials, officers, agents, consultants, employees, and volunteers. 3.22 Insurance. 3.22.1 Time for Compliance. CONTRACTOR shall not commence work under this Contract until it has provided evidence satisfactory to SAFE that it has secured all insurance required under this section. In addition, CONTRACTOR shall not 17336.0002A \6030198.4 13 76 allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.22.2 General Liability Insurance. CONTRACTOR shall procure a Commercial General Liability Insurance Policy in amounts and form set forth below: 3.22.2.1 Commercial General Liability Insurance. A policy of Commercial General Liability which provides limits of not less than: a. Per occurrence: b. Project Specific Aggregate: c. Products/Completed Operations: d. Personal Injury Limit: $2,000,000 $4,000,000 $1,000,000 $1,000,000 3.22.2.2 General Liability Policy Coverage. Any general Liability policy provided by CONTRACTOR hereunder shall include the following coverage: a. Premises and Operations b. Products/Completed Operations with limits of at least one million dollars ($1 ,000,000) per occurrence to be maintained for three (3) years following acceptance of the work by SAFE. c. Contractual Liability expressly including liability assumed under this Contract. d. Independent Contractor's Liability. If CONTRACTOR is unable to provide Commercial General Liability Insurance with the four million dollar ($4,000,000) project specific aggregate limits indicated in Section 3.22.2.1 above, or the two million dollar ($2,000,000) per occurrence limits in Section 3.22.2.2 above, CONTRACTOR shall provide an Excess or umbrella option which achieves twice the per occurrence limits. 3.22.2.3 Additional Insured Endorsement. Any general liability policy provided by CONTRACTOR hereunder shall also contain an additional insured endorsement which applies its coverage to RCTC, SAFE, CHP Cciltrans and their officers, agents and employees. Any self-funded program and/or insurance policy of any of the foregoing referenced agencies shall be excess only and not contributing to such coverage. 3.22.2.4 Form of General Liability Insurance Policies. All general liability policies shall be written to apply to all bodily injuries, including death, property damage, personal injuries and other covered loss, however, occasioned, occurring during the policy term, and shall specifically insure the performance by CONTRACTOR of that part of the indemnity agreement contained in this Contract relating to liability for injury to or death of persons and damage to property" per project, per location aggregate endorsement. If the coverage contains one or more aggregate limits, a minimum of 50% of any such aggregate limit must remain available at all times; 17336.0002A\6030198.4 14 77 if over 50% of any aggregate limit has been paid or reserved, SAFE may require additional coverage to be purchased by CONTRACTOR to restore the required limits. CONTRACTOR may combine primary, umbrella and as broad as possible excess liability coverage to achieve the total limits indicated above. Any umbrella or excess liability policy shall include the Additional Insured Endorsement described above. 3.22.3 Comprehensive Automobile Liability Insurance. CONTRACTOR shall procure Comprehensive Automobile Liability Insurance written for bodily injury, including death, and property damage, however occasioned occurring during the policy term, in the amount of not less than one million dollar ($1 ,000,000), combined single limits per occurrence, applicable to all owned, non-owned and hired vehicles. This coverage shall include contractual liability. 3.22.4 Statutory Worker's Compensation and Employer's Liability Insurance. CONTRACTOR shall maintain a policy of California Worker's Compensation coverage in statutory amount and Employer's Liability coverage for not less than one million dollars ($1 ,000,000) per occurrence for all employees of CONTRACTOR engaged in services or operations under this Contract. CONTRACTOR's policy shall contain the following provision, or CONTRACTOR shall provide endorsements on forms approved by SAFE to add the following provision to its insurance policy: the insurer shall agree to waive all rights of subrogation against SAFE, RCTC, CHP, Caltrans and the members of their Board of Directors and their officers, agents, employees and volunteers. Coverage shall include the following endorsements: 3.22.4.1 Broad Form All -States endorsement. 3.22.5 Subcontractor's Insurance. CONTRACTOR shall make certain that any and all subcontractors hired by the CONTRACTOR are insured in accordance with this Contract. If any subcontractor's coverage does not comply with the foregoing provisions, CONTRACTOR shall indemnify and hold SAFE, RCTC, CHP and Caltrans harmless of and from any damages, loss or cost or expense pursuant to Section 3.21, Indemnification, incurred by any of them as a result thereof. 3.22.6 General Provisions. 3.22.6.1 Evidence of Insurance. CONTRACTOR shall, as soon as practicable following the placement of insurance required hereunder, but in no event later that the effective date of this Contract, deliver to SAFE certificates of insurance evidencing the same, together with appropriate separate endorsements thereto, evidencing that CONTRACTOR has obtained such coverage for the period of this Contract. CONTRACTOR shall deliver certified copies of the actual insurance policies specified herein, within thirty (30) days after commencement of work. Thereafter, copies of renewal policies, or certificates and appropriate separate endorsements thereof, shall be delivered to SAFE within thirty (30) days prior to the expiration of the term of any policy required herein. CONTRACTOR shall permit SAFE at all reasonable times to inspect any policies of insurance of CONTRACTOR which CONTRACTOR has not delivered to SAFE. 17336.0002A \6030198.4 15 78 3.22.6.2 Claims Made Coverage. If coverage is written on a "claims made" basis, the Certificate of Insurance shall clearly so state. In addition to the coverage requirements specified above, such policy shall provide that: a. The policy retroactive date coincides with or preceded CONTRACTOR's commencement of work under this Contract (including subsequent policies purchased as renewals or replacements). b. CONTRACTOR will make every effort to maintain similar insurance during the required extended period of coverage following expiration of this Contract, including the requirement of adding all additional insureds. c. If insurance is terminated for any reason, CONTRACTOR shall purchase an extended reporting provision of at least two (2) years to report claims arising in connection with this Contract. d. The policy allows for reporting of circumstances or incidents that might give rise to future claims. 3.22.7 Failure to Obtain or Maintain Insurance: SAFE Remedies. CONTRACTOR's failure to procure the insurance specified herein, or failure to deliver certified copies or appropriate certificates of such insurance, or failure to make the premium payments required by such insurance, shall constitute a material breach of this Contract, and SAFE may, at its option, obtain and pay for such insurance and deduct from payments due to CONTRACTOR such amounts paid, or terminate this Contract for any such default by CONTRACTOR. 3.22.8 No Litigation of Obligations. The foregoing requirements as to the types and limits of insurance coverage to be maintained by the CONTRACTOR, and any approval of said insurance by SAFE or its insurance contractor(s), are not intended to or shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the CONTRACTOR pursuant to this Contract, including, but not limited to, the provisions concerning indemnification. 3.22.9 Notice of Cancellation of Change of Coverage. All insurance and the certificates of insurance provided by CONTRACTOR must evidence that the insurer providing the policy will give SAFE thirty (30) days written ~otice, at the address shown in Section 3.30, Notices, of this Contract, in advance of any lapse, cancellation, reduction or other adverse change respecting such insurance. 3.22.1 0 Qualifvinq Insurer. All policies of insurance required hereby shall be issued by companies which have been approved to do business in the State of California by the State Department of Insurance, and which hold a current policy holder's alphabetic and financial size category rating of not less than A: VIII according to the current Best Current Rating Guide, or a company of equal financial stability as determined by SAFE. 17336 0002A\60301984 16 79 3.22.11 Review of Coverage. SAFE retains the right at any time to review the coverage, form and amount of insurance required herein and may require CONTRACTOR to obtain additional insurance reasonably sufficient in coverage, form, amount to provide adequate protection against the kind and extent of risk which exists at the time of change in insurance required. 3.22.12 Safety. CONTRACTOR shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the CONTRACTOR shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment, and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.23 Prohibited Interests. 3.23.1 Solicitation. CONTRACTOR maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for CONTRACTOR, to solicit or secure this Contract. Further, CONTRACTOR warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for CONTRACTOR, any fee, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, SAFE shall have the right to rescind this Contract without liability. 3.23.2 Conflict of Interest. For the term of this Contract, no member, officer or employee of SAFE, during the term of his or her service with SAFE, shall have any direct interest in this Contract, or obtain any present or anticipated material benefit arising therefrom. 3.23.3 Conflict of Emolovment. Employment by the CONTRACTOR of personnel currently on the payroll of SAFE shall not be permitted in the performance of this Contract, even though such employment may occur outside of the employee's regular working hours or on weekends, holidays, or vacation time. Further, the employment by the CONTRACTOR of personnel who have been on SAFE payroll within one year prior to the date of execution of this Contract, where this employment is caused by, and or dependent upon, the CONTRACTOR securing this or related Contracts with SAFE, is prohibited. 3.24 Equal Opportunity Employment. CONTRACTOR represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, 17336.0002A\6030198.4 17 80 employee, or applicant for employment because of race, religion, color, national origin, ancestry, sex, age, disability (including HIV and AIDS), mental disability, medical condition (cancer), marital status, denial of family and medical care leave, or denial of pregnancy disability leave. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. Employment and Housing Act (Gov. Code Section 12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Admin. Code, Tit. 2, Section 7285.0 et seq.): The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this Contract by reference and made a part hereof as if set forth in full. CONTRACTOR shall include the provisions of this Section in all of CONTRACTOR's subcontracts with respect to work under this Agreement, unless exempted by the Regulations. CONTRACTOR shall also comply with all relevant provisions of SAFE's Minority Business Enterprise program, Affirmative Action Plan, or other related SAFE programs or guidelines currently in effect or hereinafter enacted. 3.25 Right to Employ Other CONTRACTORs. SAFE reserves the right to employ other CONTRACTORs in connection with the Services. 3.26 Governing Law. The validity of this Contract and of any of its terms or provisions, as well as the rights and duties of the parties hereunder, shall be governed by and construed with the laws of the State of California. 3.27 Venue. The Parties acknowledge and agree that this Contract was entered into and intended to be performed in Riverside County, California. The Parties agree that the venue for any action or claim brought by any Party will be the Central District of Riverside County.· Each Party hereby waives any law or rule of court which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party, the Parties agree to use their best efforts to obtain a change of venue to the Central District of Riverside County. 3.28 Time of Essence. Time is of the essence for each and every provision of this Contract. 3.29 Headings. Article and section headings, paragraph captions, or marginal headings contained in this Contract are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.30 Notices. All notices hereunder and communications regarding interpretation of the terms of this Contract or changes thereto shall be given to the respective Parties at the following addresses, or at such other addresses as the respective Parties may provide in writing for this purpose: I 7336.0002A\60301 98.4 18 81 CONTRACTOR: Name Title Address City, State ZiQ Attn: ______ _ SAFE: Riverside County Service Authority for Freeway Emergencies FSP Program P.O. Box 12008 Riverside, CA 92502-2208 Attn: Brian Cunanan Such notice shall be deemed made when personally delivered or when mailed, forty- eight (48) hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the Party at its applicable address: Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.31 Contract Documents and Conflicting Provisions. This Contract consists of, in addition to the Exhibits attached hereto and incorporated by reference herein, the following documents ("Contract Documents"): (1) Request for Proposal No. FSP12-45-045-00, including all of the Exhibits attached thereto and incorporated therein by reference and any amendment or addendum thereto (the "RFP"); and (2) CONTRACTOR's response thereto, including any amendments or addendums ("CONTRACTOR's Proposal"). In the event that provisions of this Contract conflict in any way with the provisions of the RFP, and/or CONTRACTOR's Proposal, the terms of this Contract shall control. In the event that the provisions of the RFP conflict with CONTRACTOR's Proposal, the terms of the RFP shall control. Otherwise, the Contract Documents are intended to be complementary. Services required by one of the Contract Documents and not by others shall be performed as required by all. In the event that provisions of any attached Exhibits conflict in any way with the provisions set forth in this Contract, the language, terms and conditions contained in this Contract shall control the actions and obligations of the Parties and the interpretation of the Parties' understanding concerning the performance of the Services. 3.32 Amendment or Modification. No supplement, modification, or amendment of this Contract shall be binding unless executed in writing and signed by both Parties. 3.33 Entire Contract. This Contract contains the entire Contract of the Parties relating to the subject matter hereof and supersedes all prior negotiations, Contracts or understandings. 3.34 lnvaliditv: Severability. If any portion of this Contract is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.35 No Waiver. Failure of CONTRACTOR to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be 17336.0002A\6030198.4 19 82 deemed a waiver or relinquishment of such other right or power at any other time or times. 3.36 Counterparts. This Contract may be signed in one or more counterparts, any one of which shall be effective as an original document. 3.37 Attorneys' Fees and Costs. If any legal action is instituted to enforce or declare any Party's rights hereunder, each Party, including the prevailing Party, must bear its own costs and attorneys' fees. This paragraph shall not apply to those costs and attorneys' fees directly arising from any third party legal action against a Party hereto and payable under Section 3.21, Indemnification. 3.38 Consent. Whenever consent or approval of any Party is required under this Contract, that Party shall not unreasonably withhold nor delay such consent or approval. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first herein written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES By: ______________________ _ John J. Benoit, Chair APPROVED AS TO FORM: By: ______________________ _ Best Best & Krieger LLP, Counsel to the Riverside County Service Authority for Freeway Emergencies 17336.0002A \6030198.4 20 83 [CONTRACTOR'S COMPANY NAME] [LEGAL STATUS OF CONTRACTOR] By: ________________________ _ (Name) (Title) Attest: By: ----------------------- Its: Secretary EXHIBIT "A" Exhibit "A-1" Beat Descriptions Exhibit "A-2" Preliminary List of FSP Holidays 17336.0002A \6030198.4 21 84 EXHIBIT "B" Compensation and Payment [INSERT FINAL PRICE PROPOSALS FROM CONTRACTOR'S PROPOSAL] 1 7336 0002A \60301984 22 85 RiversiGe MWG!c!::a~ 17336.0002A \6030198.4 Attachment G-1: BEAT 18 AREA MAP RFP No. 12-45-045-00 Agreement No. 12-45-045-00 RIVERSIDE COUNTY FREEWAY SERVICE PATROL Rubidoux + F·abob ,~, l'.i<PO'l ~ C;e-stmore iJj [i' Riverside.£ Beat 18 23 86 Moreno Valley ,f<>;l Attachment G-2: BEAT NO. 19 AREA MAP RFP No. 12-45-045-00 Agreement No. 12-45-046-00 RIVERSIDE COUNTY FREEWAY SERVICE PATROL Wooocrest ~ ! Al " -. 1-!arf1ltd SpriO!}$ Coui"•IY P~rk 2 ~ "' ::> "' '!: ~ 1\' 0 i ~ )?;' $'2 C;!JW<;oRd ~ Marchi\ir Reserve Base z 'V j "' ~ " m ~ 6 "" "' R~<n?ti;j £AFt ~-tloreno \h ' '·-Ram:h v'l ?. t".isc ·:J:Sts '§:!20 11 Gcogl~~ u 1- I 7336_ 0002A \6030198.4 24 87 AGENDA ITEM 1 0 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 26, 2012 TO: Western Riverside County Programs and Projects Committee FROM: Brian Cunanan, Multimodal Services Manager THROUGH: Robert Yates, Multimodal Services Director SUBJECT: Lease of Frequencies and Repeaters for Freeway Service Patrol Digital Radio Communications STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 12-45-071-00 with Lucky's Two-Way Radios (Lucky's) for lease of frequencies and repeaters for Freeway Service Patrol (FSP) digital radio communications for a term of 38 months in an amount not-to-exceed $25,000; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. BACKGROUND INFORMATION: The Commission, acting in its capacity as the Service Authority for Freeway Emergencies (SAFE), is the principal agency in Riverside County, in partnership with Caltrans and the California Highway Patrol (CHP), managing the FSP program. The purpose of the FSP program is to provide a continuously roving tow services patrol along designated freeway segments (referred to as beats) to relieve freeway congestion and facilitate the rapid removal of disabled vehicles and those involved in minor accidents on local freeways. In FY 2010/11, FSP provided nearly 46,000 assists. Currently, the Commission contracts with four tow truck operators to provide service on a total of nine beats Monday through Friday during the peak commute hours, 5:30 a.m. to 8:30 a.m. and 3:00 p.m. (1 :00 p.m. on Fridays) to 7:00 p.m. The local CHP provides daily field supervision of the FSP tow operators, for both Riverside and San Bernardino County FSP programs, to ensure service performance. Clear communication between CHP, CHP dispatch, and all FSP operators is critical to program operations. Agenda Item 1 0 88 DISCUSSION: The FSP program relies heavily on the use of the radio system to transmit communications between CHP and FSP operators. Currently, FSP communications run through an analog radio system. Over the years, the coverage of FSP beat areas and reliability of this analog system has deteriorated. Therefore, a solution was sought by the Commission and San Bernardino Associated Governments (SANBAG), the SAFE for San Bernardino County. Acquiring digital radio has been the goal and came with specific needs. SANBAG took the lead and researched various options for better radio coverage for the FSP program. In partnership with CHP, various providers of digital radio systems were evaluated. An evaluation of the signal strength, coverage, costs, and reliability of the various systems was performed with Bearcom, Fisher Wireless, and Lucky's as well as Riverside County/San Bernardino County. Incomplete radio solutions or higher costs eliminated Bearcom, Fisher Wireless, and County radio systems from consideration. Lucky's provided a comprehensive solution and the coverage needed to support both the Commission and SANBAG FSP programs. In addition, Lucky's is granting the FSP program exclusivity to prevent busy-outs. Busy-outs give CHP officers and FSP operators a busy tone or signal in a time of crisis when all lines are busy. After thorough testing by the FSP CHP officers, they viewed this as the best radio solution that provided the coverage needed. As a result of its assessment, SANBAG is recommending approval of an agreement with Lucky's at its Plans and Programs Committee on March 21, 2012, and then its Board on April 4, 2012. Given that the Commission shares CHP FSP officers with SANBAG, maintaining a compatible radio system for both counties is in the best interest of all parties in order to achieve interoperability, ease of use, and operational efficiency. Therefore, staff recommends that the Commission approve Agreement No. 12-45-071-00 with Lucky's for the lease of frequencies and repeaters ( $22 per month per radio unit) for the FSP service in an amount not to exceed $25,000. for a term of 38 months commencing May 1, 2012. Further, Lucky's is a well qualified provider of radio coverage services, and staff has determined that the monthly fee is at a commercially reasonable rate. Upon approval of the Lucky's agreement, all 21 FSP tow trucks and 9 back-up tow trucks will be outfitted with new digital radio equipment. The quality of digital radio will bring more reliable and secure communications between FSP operators and CHP officers. In addition, migrating to this new digital radio system will make the program compliant with Federal Communications Commission mandates requiring the adoption of Narrow Band performance standards to be enforced by January 2013. Agenda Item 1 0 89 I Financial Information I In Fiscal Year Budget: I Yes I FY2011/12 Amount: l $1,056 N/A Year: FY 2012/13 + $23,944 Source of Funds: I State of California Budget Adjustment: J No SAFE DMV Fees N/A GL/Project Accounting No.: 002173 81016 201 45 81002 Fiscal Procedures Approved: ~~ I Date: I 03/19/12 Attachment: Lucky's Two-Way Radio Draft Agreement Agenda Item 1 0 90 lUCKY'S TWO-WAY RADIOS P.O. Box 7835 Van Nuys, CA 91409 (818) 894-3566 lease Agreement-DRAFT FORM Agreement No. 12-45-071-00 This lease Agreement ("Agreement") is made this ___ day of ___ , 20_, by and between lucky's Two-Way Radios, Van Nuys, CA 91409, hereinafter referred to as "lessor", and the Riverside County Transportation Commission acting as the Riverside County Service Authority for Freeway Emergencies, hereinafter referred to as "lessee". 1. For and in consideration of the covenants and conditions herein contained, lessor hereby leases to lessee, and lessee does hereby rent and hire from lessor, the use of lessor's mobile relay station equipment located at Sunset Peak, Santiago Peak, and Sansivine Peak in California ("Premises"). The mobile relay station equipment as defined within this Agreement consists of each site, it's frequencies, its repeaters, wiring, and any other parts related to each site. lessor agrees to make the use of the mobile relay station equipment available to the lessee on a, shared basis for the full term of this Agreement. The lessee agrees and understands that the lessor will not be in any way responsible for downtime on the mobile relay station due to mechanical or electrical failure which includes an act of nature (wind, falling tower, lightning, earthquake, fire, etc.). lessor agrees to repair the mobile relay station in a reasonable time according to the failure. The parties agree that in every instance "reasonable time" means 24 hours with the exception of an unusual circumstance such as an area wide catastrophic event at which time the parties shall discuss timing of repair. 2. In the trunking system, lessee shall have the highest queue of any user of the mobile relay station so that, in any situation, lessee shall have priority access at all times. Trunking repeaters will be set up so that one repeater shall be dedicated to lessee traffic at each site to avoid or prevent a "busy-out" situation. For the purposes of this agreement, the term "busy-out" is defined as a situation where a catastrophic event or any other event occurs that causes all radio channels to become extremely busy, and a busy signal is reached. Due to the fact that this agreement shall be used by law enforcement (California Highway Patrol) for a safety program (Freeway Service Patrol), it is essential that the lessee not reach a "busy-out" signal. 3. lessee shall pay to lessor the sum of $6,336.00 per year, payable in __ 12 __ installments of __ $528.00 each, payable in advance commencing with the second month's use. Invoice must arrive by the first of the prior month for payment to be turned around with 45 days or the 15 1 h of the succeeding month. The not-to-exceed amount of this contract is $25,000.00 over a thirty-eight (38) month term which includes a $4,936.00 contingency to be used by the lessor only with written permission by the lessee. Exhibit "B" is incorporated into this Agreement and details payment schedule breakdown. lessee shall pay to the lessor the sum of $1,056.00 concurrently with the execution of this lease as payment for the first and last month's rent. On the 45th day after payment is due the lessee will be delinquent, and service will be disconnected. A $20 reconnection fee will be charged. Because law enforcement is involved in use of lessor's frequencies, prior to service being disconnected and $20 reconnection fee being assessed, lessor shall notify lessee within five business days in writing about the delinquency and allow an additionall0-15 business days for payment turnaround. 91 Agreement No. 12-45-071-00 4. The rental rate specified in paragraph 3 will cover Lessee's use of Lessor's mobile relay station in association ___ 24 __ units and control stations. An additional fee will be charged for any additional radios. Frequency (s) authorized are: __ Santiago _______ with sub-audible tone of _______ only. __ Sunset. ________ with sub-audible tone of _______ only. __ Sansivine. ______ with sub-audible tone of _______ only. 5. The term of this Agreement shall be through June 30' 2015, unless earlier terminiated in accordance with this Agreement. The term shall commence on the date of the installation of Lessee's radio system. 6. Lessee shall submit monthly checks made payable to LUCKY'S TWO-WAY RADIOS, P.O. Box 7835, Van Nuys, CA 91409. 7. Notwithstanding the provisions of preceding paragraph 5, this lease shall terminate upon Lessor's being prevented by the action of the Federal, State, County, or Municipal governments or any other authority from continuing to use the premises in the same manner and for the same purposes for which they are to be used by Lessee pursuant to this Agreement. Lessor shall, within 60 days of such termination, notify and refund to Lessee the prorated amount of monthly fees identified herein for the time period affected by such termination. Either party may, in its own discretion terminate this Agreement by giving sixty (60) days prior written notice to the other. 8. The Lessee will be solely responsible for the proper and legal use of all radio equipment at all times. Lessee will comply with all FCC rules and regulations. Lessor shall maintain the mobile relay station equipment at all times in good condition and repair, and in accordance with all federal and state laws, rules, and regulations. 9. Indemnity-Lessee agrees to indemnify, defend, and hold harmless the Lessor and its authorized officers, employees, and agents for any damage caused by the Lessee's use of the Premises during the term of this Agreement, except to the extent any such damages or expenses suffered by the Lessor are the result of the Lessor's negligent or wrongful acts or the acts of any persons acting under or on behalf of the Lessor and/or where the Lessee is found to have no liability by reason of any immunity arising by or from statute or common law in connection with the fulfillment of Lessee's constitutional and statutory public responsibilities, where such indemnification and/or defense is prohibited by law. The Lessor is not responsible for any loss of business or money due to downtime on the mobile relay station. The Lessor will credit the Lessee on a prorated basis for downtime on the mobile relay station only when downtime exceeds 24 hours. Lessee shall notify the Lessor within two hours of its knowledge of such failure. Lessor shall defend, indemnify and hold harmless Lessee and its officers, employees, contractors, and agents for any damages or expenses, other than loss of business, arising out of injury to persons or property to the extent cause by the sole negligence or wrongful acts of Lessor, its employees, agents, or contractors. 10. The distance at which usable radio signals may be transmitted and received by the radio equipment and or mobile relay station herein under shall be as set forth in Exhibit "A" attached hereto and incorporated herein by reference. Lessee is hereby notified that all radio systems are subject to degradation of service from natural and 92 Agreement No. 12-45-071-00 man-made phenomena such as interference, intermodulation, co-channel interference, power lines, ignition noise and interference from users of the same or adjacent radio frequencies. The Lessor is not responsible for interference due to any of the above or other causes, however will make every effort to resolve the interference, including relocation to another frequency. 11. Lessee will not furnish communication service for hire or render the service to others by use of these frequencies. The foregoing shall not limit Lessee's ability to make the frequencies available for use by contractors of Lessee in the provision of Freeway Service Patrol Services. 12. If Lessee does not make payments stated in paragraph 3 of this Agreement or if Lessee is otherwise in default or in violation of this Agreement and fails to correct such default or violation upon notice by Lessor, Lessor may declare entire unpaid balance immediately due and payable. In the event suit is brought against the Lessee by reason of a default or violation on the part of the Lessee, Lessee hereby promises to pay the Lessor court costs and reasonable attorney's fees. 13. All notices and demands required, or permitted to be given or made hereunder, shall by in writing and shall be deemed duly given upon actual delivery, if delivery is by hand; or upon receipt by the transmitting party of confirmation or answer back if delivery is by facsimile (or e-mail); or five days following receipt of delivery. Each notice to be sent at the address indicated below or to any other address or person that the respective party may later designate by written notice delivered pursuant hereto: Lessee: Lessor: Riverside County Service Authority for Freeway Emergencies 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Attn: Brian Cunanan Phone:951-787-7141 Fax: 951-787-7920 Lucky's Two-Way Radios P.O. Box 7835 Van Nuys, CA 91409 Attn: ______________________ __ Phone: ----------------------- Fax: --------------------------- 14. This Agreement shall be governed by the laws of the State of California and constitutes the entire agreement between the parties and supersedes all prior negotiations, discussions, and preliminary understand{ng. This Agreement may be amended by the parties as they shall mutually agree in writing. Lessee may not assign this Agreement except with the prior written approval of Lessor. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates set forth below. 93 RIVERSIDE COUNTY TRANSPORTATION COMMISSION ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES By: John J. Benoit, Chair APPROVED AS TO FORM: By: Best Best & Krieger LLP General Counsel Agreement No. 12-45-071-00 LUCKY'S TWO-WAY RADIOS By: Name: Title: 94 Agreement No. 12-45-071-00 EXHIBIT A DISTANCES AT WHICH USABLE SIGNALS SHALL BE TRANSMITTED AND RECEIVED BY THE RADIO EQUIPMENT AND/OR MOBILE RELAY STATION At minimum, the following highway segments and a 2mile radius around the length of these segments shall be covered. Riverside: (each in both directions) RVBeat #1-SR-91 from Orange County line to Lincoln Ave. RVBeat #2-SR-91 from Lincoln Ave. to Magnolia Ave. RVBeat #4-SR-91 from Magnolia Ave. to 60/91/215 RVBeat #7-SR-60 from Milliken St. to Main St. RVBeat #8-SR-60/215 Interchange to Theodore St . . RVBeat #18-1-215 from Riverside County line to Alessandro RVBeat #19-1-215 from Alessandro to SR-74/4th St. RVBeat #25 -1-15 from Hidden Valley Pkwy. to SR-60/1-15 Interchange RVBeat #26 -1-15 from Hidden Valley Pkwy. to Temescal Canyon Rd. 1-15 from Temescal Canyon Rd. to Temecula Parkway 1-215 from SR-74/4 1 h St. to 1-15 San Bernardino: (each in both directions) SBBeat #1-1-10 from Indian Hill (Los Angeles County line) to Haven Avenue SBBeat #2 -1-10 from Haven Avenue to Sierra Avenue SBBeat #3 -1-10 from Sierra Avenue to Waterman Avenue SBBeat #4-SR-60 from Reservoir Street (Los Angeles County line) to Milliken Avenue SBBeat #5 -1-15 from Jurupa Street (Riverside County Line) to Summit Avenue SBBeat #6 -1-215 from Center Street (Riverside County line) to 2nd Street SBBeat #7-1-215 from 2nd Street to Palm/Kendall Avenue SBBeat #8 -1-10 from Waterman Avenue to University Avenue SR-210 from LA County Line to the 1-10 Freeway 1-15 from Summit Avenue to Nisqualli Road in Victorville 1-215 from Palm/Kendall Avenue to 1-15/1-215 interchange 1-10 from University Avenue to Riverside County Line. 95 Agreement No. 12-45-071-00 EXHIBIT B Payment Schedule Overview of Contract 12-45-071-00 with Lucky's Two-Way Radios for FSP digital radio frequencies Contract Term: May 1, 2012 -June 30, 2015 Monthly Number Fiscal Year Number of months rate of units Total cost FY 11/12 2 $22.00 24 $1,056.00 FY 12/13 12 $22.00 24 $6,336.00 FY 13/14 12 $22.00 24 $6,336.00 FY 14/15 12 $22.00 24 $6,366.00 Contingency $4,936.00 TOTAL 38 $22.00 24 $25,000.00 RCTC shall pay first and last months payment at commencement of contract per the contract. Compensation is based on a per month per active mobile unit radio rate of $22.00. Contract not to exceed $25,000.00 96