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04 April 23, 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,April23,2012 LOCATION: BOARD ROOM County of Riverside Administrative Center 4080 Lemon Street, First Floor, Riverside 'J'o COMMITTEE MEMBERS ~ 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 'J'o STAFF~ Anne Mayer, Executive Director John Standiford, Deputy Executive Director 'J'o AREAS OF RESPONSIBILITY ~ 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 (STIP), 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. Alexandra Rackerby From: Alexandra Rackerby Sent: To: Thursday, April19, 2012 10:20 AM Alexandra Rackerby Subject: RCTC Western Riverside County Programs and Projects Committee -lpad Compatible Users Good Morning Commissioners, The Western Riverside County Programs and Projects Committee agenda for Monday April 23, 2012 is posted on our Website at http://www.rctc.org/uploads/media items/western-riverside-county-programs-and- projects-march-26-2012 -l.original.pdf Let me know if you have any questions or concerns. Thank you. Respectfully, Allie Rackerby Riverside County Transportation Commission (951) 787-7141 1 Riverside County Tronsportation Commission TO: Riverside County Transportation Commission FROM: Jennifer Harmon, Office and Board Services Manager DATE: April16, 2012 SUBJECT: Possible Conflicts of Interest Issues -Western Riverside County Programs and Projects Committee Agenda of April 23, 2012 The April 23, 2012 agenda of the Western Riverside County Programs and Projects Committee includes items which may raise possible conflicts of interest. A RCTC member may not participate in any discussion or action concerning a contract or amendment if a campaign contribution of more than $250 is received in the past 1 2 months or 3 months following the conclusion from any entity or individual listed. Agenda Item No. 9 -Agreement with Jacobs Project Management Co. for Construction Management Services and Cooperative Agreement with Caltrans for Construction of the Interstate 215 Central Widening Project from Scott Road to Nuevo Road, in the City of Perris Consultant(s): Arellano Associates 13791 Roswell Ave., Suite A Chino, CA 91710 Genoveva Arellano, Principal Coyote Nights, Inc. 4894 W. Lone Mountain Rd. #225 Las Vegas, Nevada 89130 Gilbert Flores, Landscape Architect Falcon Engineering Services, Inc. 2482 Steven Drive Corona, CA 92879 Wael Fagih, V.P. Principal Jacobs Project Management Co. 3257 Guasti Rd., Suite 120 Ontario, CA 91761 John Fisher, Vice President Meadows Consulting 24 71 West 7th Street San Bernardino, CA 92410 Karen Meadows, Owner MTGL, Inc. 14467 Meridian Parkway, Building 2A Riverside, CA 92518 Michael J. Landon, President Psomas 1500 Iowa Avenue, Suite 210 Riverside, CA 92507 Cliff Simental, Vice President Vali Cooper and Associates, Inc. 1935 Chicago Ave., Unit A Riverside, CA 92507 Agnes Weber, President Agenda Item No. 11 -Agreement with HDR Construction Control Corporation for Construction Management Services for the Construction of the Interstate 215/Biaine Street to Martin Luther King Boulevard Widening Project Consultant(s): HDR Construction Control Corporation 2280 Market Street, Suite 100 Riverside, CA 92501 Jon Rohrer, Vice President Meadows Consulting 2471 West 7th Street San Bernardino, Ca 92410 Karen Meadows, Owner Towill, Inc. 2901 Business Center Drive, Suite 150 Irvine, CA 92612-1130 Dawn Antonucci, Vice President Twining, Inc. 7 32 East Carnegie Drive, Suite 100 San Bernardino, Ca 92408 Chris Gerber, Infrastructure Division Manager RCTC Conflict of Interest Form Purpose: This form is provided to assist members of the RCTC Commissioners in meeting requirements of Government Code Section 84308 and 87100 in documenting conflict of interests as related to RCTC Commission/Committee agenda items._ Instructions: Under certain circumstances, RCTC Commission may be required to disclose and disqualify themselves from participating in, influencing, or voting on an agenda item due to personal income, real property interests, investments, business positions, or receipt of campaign contributions. If applicable, Commissioners must personally state the following information, for entry into the public record, prior to consideration of the involved agenda item(s) and turn in the completed form to the Clerk of the Board prior to leaving the meeting. An RCTC member may not participate in any discussion or action concerning a contract or amendment if a campaign contribution of more than $250 is received in the past 1 2 months or 3 months following the conclusion from any entity or individual. I. Board Member Information Board Member Name City/County Name Meeting Date II. Campaign Contributions 1. I have a disqualifying campaign contribution of over $250 from / !AYtU~. · 4entif~ c;;:;:,ny ~d/or lnllividual) and therefore I am abstaining from participation on Agenda item , jec . 'll"d_AJ V x:-lf-9' M;>. . _Lf!' IL ~~\ \._..../ '-- 2. I have a disqualifying campaign contribution of over $250 from ~'-''i?~ /""P''-<££ A~ , (Identify the name of the company and/or Individual) and therefore I am abstaining from participation on Agenda item /6 , Subject: s t;c-'"71.. vu:. ~~ f)Jrr-r/1.(''-.. f'i\(1 1\_ ~~CI--7"'/ 3. I have a disqualifying campaign contribution of over $250 from ' (Identify the name of the company and/or Individual) and therefore I am abstaining from participation on Agenda item , Subject: 4. I have a disqualifying campaign contribution of over $250 from ' -(Identify the name of the company and/or Individual) and therefore I am abstaining from participation on Agenda item , Subject: Ill. Financial Interest ~GrJ~~~r= .a.LI 1. I have a financial interest of A ~L.. fll" P~l''z ;J;;.~~fro~ ~2,.J:l~""2X!:'7~\'-r (State income, real property interest. investment or business positioff ~D ldent'l'fy name of company or property location! and therefore I am abstaining from participation on Agenda ltem__Q.__..:, ubject: 8 CJT"'J:-I!tV·~rld fie>~ 2. I have a financial interest of ;/JAr7~~~ . , from/in (State income. real property interest, investment or business position) (Identify name of company or property location) and therefore I am abstaining from participation on Agenda Item __ , Subject: IV. Signature Board Member Signat~ ~· ~ Date: Please remember you must state the information into the public record prior to consideration of the involved agenda item(s) and turn in the completed form to the Clerk of the Board prior to leaving the meeting_ RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE www.rctc.org AGENDA* *Actions may be taken on any item listed on the agenda 1:30 p.m. Monday, April 23, 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. rete. 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 April 23, 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-MARCH 26, 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 less than 2/3 of the Committee members present, adding an item to the agenda requires a unanimous vote. Added items will be placed for discussion at the end of the agenda.) 7 · CONSTRUCTION CHANGE ORDER POLICIES Page 1 Overview This item is for the Committee to: 1) Review the Commission's existing change order procedure; 2) Require committee action when contract change orders exceed the previously-approved contingency; and 3) Forward to the Commission for final action. 8. COOPERATIVE AGREEMENT WITH THE COUNTY OF RIVERSIDE FOR THE STATE ROUTE 91 CORRIDOR IMPROVEMENT PROJECT Page4 Overview This item is for the Committee to: · 1) Approve Agreement No. 12-31-080-00, a cooperative agreement between the Commission and the county of Riverside (County) related to the State Route 91 Corridor Improvement Project (SR-91 CIP); 2) Authorize the Executive Director, 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 April 23, 2012 Page 3 9. AGREEMENT WITH JACOBS PROJECT MANAGEMENT CO. FOR CONSTRUCTION MANAGEMENT SERVICES AND COOPERATIVE AGREEMENT WITH CALTRANS FOR CONSTRUCTION OF THE INTERSTATE 215 CENTRAL WIDENING PROJECT FROM SCOTT ROAD TO NUEVO ROAD, IN THE CITY OF PERRIS Page 18 Overview This item is for the Committee to: 1) Award Agreement No. 12-31-034-00 to Jacobs Project Management Co. (Jacobs) to provide construction management (CM) services, materials testing, and construction surveying for the 1-21 5 central widening project, Scott Road to Nuevo Road, in the city of Perris, in the amount of $11 ,807 ,334, plus a contingency amount of $1,192,666, for a total amount not to exceed $1 3 million; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work as may be required for the project; 4) Approve Cooperative Agreement No. 12-31-078-00 with Caltrans for construction of the project; 5) Authorize the Executive Director, pursuant to legal counsel review, to execute the cooperative agreement and future non-funding related amendments to this agreement; and 6) Forward to the Commission for final action. 10. INTERSTATE 215 SCOTT ROAD TO NUEVO ROAD -UTILITY AGREEMENTS AND CONSTRUCTION AND MAINTENANCE AGREEMENT Page 101 Overview This item is for the Committee to: 1 ) Authorize the Executive Director, pursuant to legal counsel review, to execute the utility agreements related to the 1-215 Scott Road to Nuevo Road Central widening project on behalf of the Commission; 2) Approve Agreement No. 12-31-082-00 with Caltrans for construction and maintenance of the Ethanac Overhead Bridge; 3) Authorize the Executive Director, pursuant to legal counsel review, to execute Agreement No. 1 2-31-082-00 on behalf of the Commission; and 4) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee April 23, 2012 Page 4 11 · AGREEMENT WITH HDR CONSTRUCTION CONTROL CORPORATION FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE CONSTRUCTION OF THE INTERSTATE 215/BLAINE STREET TO MARTIN LUTHER KING BOULEVARD WIDENING PROJECT Page 141 Overview This item is for the Committee to: 1) Award Agreement No. 12-31-057-00 to HDR Construction Control Corporation (HDR) to provide construction management (CM), materials testing, and construction surveying services for the Interstate 21 5/Biaine Street to Martin Luther King Boulevard widening project, in the amount of $218,731, plus a contingency amount of $21,873, for a total amount not to exceed $240,604; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work as may be required for the project; and 4) Forward to the Commission for final action. 12. AMENDMENT WITH STV, INCORPORATED FOR FEDERAL TRANSIT ADMINISTRATION COORDINATION AND SMALL STARTS SUPPORT FOR THE PERRIS VALLEY LINE Page 208 Overview This item is for the Committee to: 1) Approve Agreement No. 08-33-069-03, Amendment No. 3 to Agreement 08-33-069-00, with STV Incorporated (STV) for additional assistance with Federal Transit Administration (FTA) coordination and Small Starts program support for the Perris Valley Line project in the amount of $11 5,000, for a total contract amount of $31 5, 709; 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 April 23, 2012 Page 5 13. PERRIS VALLEY LINE -UTILITY AGREEMENTS Page 213 Overview This item is for the Committee to: 1 ) Authorize the Executive Director, pursuant to legal counsel review, to execute the utility agreements related to the Perris Valley Line commuter rail project on behalf of the Commission; 2) Authorize the Executive Director, pursuant to legal counsel review, to execute the utility service agreements related to the Perris Valley Line commuter rail project on behalf of the Commission; and 3) Forward to the Commission for final action. 14. AGREEMENT FOR THE OPERATION OF THE FREEWAY SERVICE PATROL PROGRAM IN RIVERSIDE COUNTY Page 220 Overview This item is for the Committee to: 1) Approve Agreement No. 1 2-45-068-00 with the California Department of Transportation (Caltrans) for the operation of the Riverside County Freeway Service Patrol (FSP) program in the amount of $1 ,653,564 in state funding for FY 2011 /12; and 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. 15. AMENDMENTS TO FREEWAY SERVICE PATROL AGREEMENTS Page 230 Overview This item is for the Committee to: 1) Approve Agreement No. 07-45-134-04, Amendment No. 4 to Agreement No. 07-45-134-00, with Pepe's Towing (Pepe's) to provide Freeway Service Patrol (FSP) services on Beat No. 18 in the amount of $115,000; 2) Approve Agreement No. 07-45-136-03, Amendment No. 3 to Agreement No. 07-45-136-00, with Pepe's to provide FSP services on Beat No. 19 in the amount of $200,000; 3) Approve Agreement No. 11-45-146-01, Amendment No. 1 to Agreement No. 11-45-146-00, with Pepe's to provide FSP services on Beat No. 4 in the amount of $800,000; and 4) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee April 23, 2012 Page 6 16. FREEWAY SERVICE PATROL COST EFFECTIVENESS EVALUATION Overview This item is for the Committee to: Page 233 1) Approve Agreement No. 1 2-45-079-00 with DKS Associates (DKS) to provide a Freeway Service Patrol (FSP) cost effectiveness evaluation in the amount of $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. 17. 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. 18. 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, May 21,2012, Board Chambers, First Floor, County Administrative Center, 4080 Lemon Street, Riverside. RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE ROLL CALL APRIL 23, 2012 Present County of Riverside, District I County of Riverside, District V City of Banning City of Corona City of Eastvale City of Jurupa Valley City of Menifee City of Moreno Valley City of Norco City of Perris City of San Jacinto City of Wildomar D :: ~ ;;r ~ .J;r' xr tl ::::- Absent j( (] D (] D [] D (] D ~ D RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS SIGN-IN SHEET APRIL 23, 2012 NAM~ n. ~ AGENCY I 1 E MAIL ADDRESS -//'"/ (£/). v.--i!z> l(_l J?/~ / df!A__~?t!J~x /)/(,--./ {{)£/jlo£ -~ L,// 1..1?4-rJ"A ~( r:0aJc.,_ -1:,) h V\~ -....JI.Nrt/1.~ \/~ l6ob fSofts C(t;. d ('If /1 j~ J. _--t.. ~ta.rA._W I rJ IJ~tJ/t ~ ( /Jo /7 .. c..o i\1 f;1(Yi J s t-.__\J-H !f-1(\. >\fY·;,. "-1 \Ct)t~ W(,- r netic\.,)';) fi f-,~-\~ \(_(IJ cv·) ~i), cc..c l1 r·~ v . .. "\ ~1 \L J..) .... t/1 Z--1 .! --1._. I AGENDA ITEM 5 MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Monday, March 26, 2012 MINUTES 1. CALL TO ORDER The meeting of the Western Riverside County Programs and Projects Committee was called to order by Chair Adam Rush at 1:30 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, Commissioner Berwin Hanna led the Western Riverside County Programs and Projects Committee in a flag salute. 3. ROLL CALL Members/ Alternates Present Marion Ashley Ben Benoit Bob Botts Daryl Busch Bob Buster Marcelo Co Berwin Hanna Frank Johnston Andrew Kotyuk Darcy Kuenzi Adam Rush Karen Spiegel 4. PUBLIC COMMENTS Members Absent There were no requests to speak from the public. RCTC WRC Programs and Projects Committee Minutes March 26, 2012 Page 2 5. APPROVAL OF MINUTES-FEBRUARY 27, 2012 M/S/C (Kuenzi/Spiegel) to approve the minutes as submitted. Abstain: Benoit 6. ADDITIONS/REVISIONS There was a revision to Agenda Item No. 7, #State Route 91 Toll Facility Agreement". At this time Commissioners Bob Buster and Andrew Kotyuk arrived at the meeting. 7. STATE ROUTE 91 TOLL FACILITY AGREEMENT Michael Blomquist, Toll Program Director, presented an overview of the details of the agreement with Caltrans for the State Route 91 toll facility. He also stated the only revision to the item as the contract value. In response to Commissioner Buster's request for clarification, Michael Blomquist stated the required reserves will be set aside as part of the financing for operations and maintenance, and capital improvements. At Commissioner Buster's request, Michael Blomquist discussed the dispute resolution process. In response to Commissioner Karen Spiegel's concern regarding the two-year gap between the termination dates for the agreements with Caltrans, Michael Blomquist stated the three agencies have acknowledged the difference and determined to allow future management/boards to determine how to address that issue due to the current number of variables. M/S/C (Kuenzi/Hanna) 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; 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. RCTC WRC Programs and Projects Committee Minutes March 26, 2012 Page 3 8. AGREEMENT WITH RIVERSIDE TRANSIT AGENCY FOR THE STATE ROUTE 91 SHUTTLE SERVICE FOR COUNTY EMPLOYEE PARKING LOT Mark lancaster, Interim Right of Way Manager, presented a brief overview of the scope and cost of the agreement with RT A for the SR-91 shuttle service for the county employee parking lot. M/S/C (Busch/Kotyuk) 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. At this time, Commissioner Marion Ashley recused himself from Agenda Item 9 due to a conflict of interest. 9. AGREEMENTS FOR FREEWAY SERVICE PATROL TOW TRUCK SERVICE Jillian Edmiston, Staff Analyst, provided an overview of the recommended awards for FSP tow truck service on Beat Nos. 18 and 19. In response to Commission Buster's questions regarding beat numbers, construction FSP, and implementation of new service, Jillian Edmiston stated the beat numbers are assigned by the California Highway Patrol. Additionally, she explained how construction FSP and new beats are determined and implemented. In response to Commissioner Kotyuk's question regarding service costs, Jillian Edmiston discussed the various approaches the tow operators use to determine their costs. M/S/C (Kuenzi/Benoit) 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; RCTC WRC Programs and Projects Committee Minutes March 26, 2012 Page 4 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. At this time, Commissioner Ashley rejoined the meeting. 10. LEASE OF FREQUENCIES AND REPEATERS FOR FREEWAY SERVICE PATROL DIGITAL RADIO COMMUNICATIONS Brian Cunanan, Commuter and Motorist Assistance Manager, presented the scope and cost of the agreement with Lucky's Two Way Radios for lease of frequencies and repeaters for FSP digital radio communications. In response to Commissioner Bob Botts' question regarding leasing, Brian Cunanan explained the frequency licenses are registered with the FCC, however, he will need to research how they are acquired from the FCC by a private company. In response to Commissioner Spiegel's question regarding the repeaters, Brian Cunanan stated these repeaters are exclusively used for the FSP program. The tow operators have separate repeaters for their regular business. M/S/C (Kuenzi/Spiegel) 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 11A. Executive Director Anne Mayer reminded Commissioners that Form 700's are due by Monday, April 2. 11 B. Chair Rush announced the city of Eastvale' s state of the city address will be held on Thursday, March 29. RCTC WRC Programs and Projects Committee Minutes March 26, 2012 Page 5 12. ADJOURNMENT There being no further business for consideration by the Western Riverside County Programs and Projects Committee, the meeting was adjourned at 2:12p.m. Respectfully submitted, Jennifer Harmon Clerk of the Board AGENDA ITEM 7 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April 23, 2012 TO: Western Riverside County Programs and Projects Committee FROM: Marlin Feenstra, Project Delivery Director THROUGH: Anne Mayer, Executive Director SUBJECT: Construction Change Order Policies STAFF RECOMMENDATION: This item is for the Committee to: 1) Review the Commission's existing change order procedure; 2) Require committee action when contract change orders exceed the previously-approved contingency; and 3) Forward to the Commission for final action. BACKGROUND INFORMATION: This item is a follow up to a request by the Commission to develop a policy handling requests by staff to add to the contract contingency authorization for construction contracts. Typically, the Commission authorizes a 1 0 percent contingency with the approval of construction contracts. That contingency is released as necessary through contract change orders. Every contract requires change orders, and certain types of work can be accomplished only through change orders. State law requires that only work that can be reasonably quantified and estimated can be required to be bid by the contractor, which means that work that must be performed to build the project but cannot be quantified during the bidding process must be paid for using change orders. Typical change orders of this type for highway construction contracts include traffic control, storm water pollution prevention measures, partnering, quantity adjustments, incentives for performance based bid items, and price adjustments for oil on projects with large amounts of asphalt paving. Current Change Order Process The current change order process includes various controls to ensure that the public funds added to the contract are warranted, and a fair price is paid for the work performed. The process followed by the Commission conforms to the Caltrans Construction Manual; for non-highway projects typically the requirements Agenda Item 7 1 of the Federal Transit Administration (FTA) may also apply. The specific steps in the change order process are as follows: 1 . The need for a change order is identified by the Resident Engineer (RE), who is part of the Construction Management team. 2. The RE discusses the change order with Commission/Bechtel Construction Manager and, if significant, the Commission project manager as well. The item is also discussed with the Caltrans oversight RE. 3. The RE drafts the change order and sends it to the contractor with a request for a cost proposal or a concurrence with the RE's proposal. 4. The contractor returns the cost proposal, which is analyzed by the RE to ensure the price is fair and reasonable; the RE may recommend approval or reject it and ask the contractor to try again. 5. After the RE and the contractor sign the change order, the RE sends it to the Commission with a cover memo that explains in detail the need for the change, the proposed solution, and the basis for the price. 6. The Commission/Bechtel Construction Manager, Commission project manager, and Commission Project Delivery Director all review and sign the change order, and if the change order is over $100,000, the Executive Director reviews and signs as well. 7. After approval, the transfer of funds from the contingency to the contract is authorized. The documents involved in the entire process are retained in the project files and are subject to audit by federal and state agencies. In accordance with the Commission Quality Assurance Plan, quality audits are performed periodically (usually twice during each contract; more often if required to guarantee compliance) to ensure that the process is followed correctly and all documents are filed properly. Process When Additional Funds Are Needed Before issuing any change order that would exceed the authorized contingency, Commission action is required to increase the contingency. The standard practice has been to take these items to the Western Riverside County Programs and Projects Committee or to the Eastern County Programs and Projects Committee, depending on the location of the project. Agenda Item 7 2 Staff is recommending no change to this procedure. However, standing committee meetings are occasionally cancelled due to holidays or other events. In this case, or if requested by the Executive Director in cases which require a more detailed level of oversight, it is recommended that the Chair appoint an ad hoc committee to consider the item and make a recommendation to the Commission. The key change in this approach is that it will ensure that a significant. change order item receives a thorough review from a committee prior to its consideration by the Commission. Due to the nature of construction projects, decisions on change orders often need to be made quickly; this process would ensure that while the need to appoint a construction ad hoc committee for a single item would be rare, it would provide the Commission with a level of review while ensuring that a pressing time deadline can be met. Agenda Item 7 3 AGENDA ITEM 8 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April 23, 2012 TO: Western Riverside County Programs and Projects Committee FROM: David Thomas, Toll Project Manager THROUGH: Michael Blomquist, Toil Program Director SUBJECT: Cooperative Agreement with the County of Riverside for the State Route 91 Corridor Improvement Project STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 12-31-080-00, a cooperative agreement between the Commission and the county of Riverside (County) related to the State Route 91 Corridor Improvement Project (SR-91 CIP); 2) Authorize the Executive Director, 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 SR-91 CIP will widen the SR-91 through the County, extend the ex1stmg 91 Express Lanes from the Orange County line to Interstate 1 5, improve five local interchanges, reconstruct a portion of the 1 5/91 interchange, and provide 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). Interagency Agreements Vital to the project's success is the communication and coordination with project stakeholders. Further, certain project stakeholders are potentially directly impacted by the project and/or require the Commission to obtain agreement on issues that impact the project. For these project stakeholders, the Commission initiated discussions and is negotiating interagency agreements in advance of the design- build work phase. Currently interagency agreements are complete or are in process Agenda Item 8 4 for the following agencies: Federal Highway Administration, Caltrans, California Highway Patrol, city of Corona, Orange County Transportation Authority, and the County. Cooperative Agreement with the County of Riverside The SR-91 CIP involves major construction of the SR-91 freeway through the County, local freeway interchanges, and local streets and intersections. The Commission and County staffs have negotiated a cooperative agreement for the project that addresses the foreseeable issues in advance of the project construction. The following are some key provisions of this cooperative agreement: • The Commission shall be responsible for design, reviews, approvals, and inspection of the project work within the County's jurisdiction to ensure conformance with the County standards; • The County shall review the sections of the request for proposals that pertain to work to be completed within the County's jurisdiction and provide comments to the Commission; • The County shall timely process the required encroachment permits to cover the contractor's work on the project within the County's right of way; • The County will attend and provide input at meetings of the contractor's task forces formed for public information, traffic management and detours, local street construction, and related work; • The County shall waive any and all charges and fees related to plan review and inspections for the project; • The County will make its best efforts to perform all obligations of the County related to the project in such a manner as to allow the project to progress as scheduled; • The Commission shall acquire, at its sole cost, new, replacement right of way for the County in exchange for the Frontage Road right of way to be vacated by the County, and shall deed such replacement Frontage Road right of way to the County in fee concurrently with the vacation and quitclaim of the frontage road vacated by County. The County shall timely accept such new right of way from the Commission; and • The Commission and County agree to the dispute resolution process. Staff is seeking Commission approval of the cooperative agreement and authorization for the Executive Director to execute the agreement between the Commission and County for the project. There is no direct cost related to this cooperative agreement. Agenda Item 8 5 I Financial Information I In Fiscal Year Budget: I N/A I Year: I FY 2012/13 + Amount: I $0 Source of Funds: IN/A Budget Adjustment: I N/A GL/Project Accounting No.: N/A Fiscal Procedures Approved: ~~ I Date: I 04/12112 Attachments: 1) Draft Agreement No. 12-31-080-00 2) Map of SR-91 CIP Agenda Item 8 6 COOPERATIVE AGREEMENT ATTACHMENT 1 DISCUSSION DRAFT NO. 8 .t/5/2012 Agreement No. 12-31-080-00 FOR STATE ROUTE 91 EXPRESS LANES AND CORRIDOR IMPROVEMENTS BETWEEN RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND THE COUNTY OF RIVERSIDE This Cooperative Agreement for State Route 91 Express Lanes and Corridor Improvements ("Cooperative Agreement") is made and entered into this __ day of ____ 2012, by and between the Riverside County Transportation Commission ("RCTC") and the County of Riverside (the "County"). RCTC and the County are sometimes referred to herein individually as "Party", and collectively as the "Parties". RECITALS WHEREAS, the Orange County Transportation Authority operates and maintains the existing SR-91 Express Lanes in Orange County under a franchise agreement with the State of California. WHEREAS, RCTC is studying the extension of the SR-91 Express Lanes on the existing State Route 91 between the Riverside/Orange County line and the State Route 15 interchange, including transition areas anticipated to commence as far north as Hidden Valley Parkway on State Route 15, as far south as Cajalco Road on State Route 15, as far east as Pierce Street on State Route 91, and as far west as Gypsum Canyon on State Route 91 (the "Project"). WHEREAS, the potential Project may include improvements to County streets and other related improvements that will ultimately be owned by the County, and may include certain additional improvements requested by the County. WHEREAS, because the Project, if constructed, may impact County owned and/or maintained facilities, coordination between the Parties prior to and during construction of the Project is crucial to provide for mitigation of potential impacts that construction may have on the County, and to ensure that improvements within the County comply with applicable standards. WHEREAS, the Parties acknowledge that, if a Project is constructed, it is RCTC's intent to utilize the design-build method of Project procurement and construction. WHEREAS, it is the intent of the Parties in entering into this Cooperative Agreement to establish certain opportunities for cooperation and coordination and to set forth various responsibilities of the Parties, all as further set forth herein. 17336.02100\5937448.3 7 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 the Project. WHEREAS, the Parties acknowledge and agree that nothing m this Cooperative Agreement commits RCTC to approving or constructing the Project. NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, it is mutually understood and agreed by RCTC and the County as follows: TERMS I. Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Cooperative Agreement as though fully set forth herein. 2. Definitions. 2.1 Caltrans. As used in this Cooperative Agreement, the term "Caltrans" shall mean and refer to the California Department of Transportation. 2.2 County Standards. As used in this Cooperative Agreement, the term "County Standards" shall mean and refer to the County's standards, policies, guidelines, and ordinances, including Ordinance 461, design criteria, construction details, and testing/inspection requirements, and amendments and supplements thereto, for work within the County's Jurisdiction, approved by the County and in effect before the date of issuance of the final addendum to the RFP. 2.3 County's Jurisdiction. As used in this Cooperative Agreement, the term "County's Jurisdiction" shall mean and refer to the areas within the Project limits either owned and/or maintained by the County. As used herein, the term "County's Jurisdiction" expressly excludes the State highway right of way. 2.4 Contractor. As used in this Cooperative Agreement, the term "Contractor" shall mean and refer to the design-build contractor selected by RCTC for the Project pursuant to its Request for Proposal process. 2.5 Project. As used in this Cooperative Agreement, the term "Project" shall mean and refer to the proposed RCTC State Route 91 Express Lanes and Corridor Improvement project as further described in the second recital of this Cooperative Agreement. 2.6 Request for Proposals. As used in this Cooperative Agreement, the term "Request for Proposals" shall mean and refer to RCTC's request for proposals for the design- build contractor for the Project. 3. Term. 3.1 This Cooperative Agreement shall be effective as of the date first set forth above, and shall continue in effect until the Project is complete, as evidenced by RCTC's issuance to the 2 17336.02100\5937448.3 8 Contractor of a notice of completion pursuant to the terms of RCTC's contract with the Contractor ("Notice of Completion"). 3.2 Notwithstanding any other provision of this Cooperative Agreement, if the "no build" alternative is selected as a result of the completion of environmental review for the Project, this Cooperative Agreement shall immediately terminate without liability to either Party. 4. General Agreement to Cooperate. The Parties agree to mutually cooperate in order to help ensure that the Project is successfully completed with minimum impact to both Parties, the Contractor and the public. 5. Obligations ofRCTC. 5.1 RCTC shall incorporate the County Standards for work within the County's Jurisdiction into the Request for Proposals, and shall require that improvements within the County's Jurisdiction be completed pursuant to such standards. 5.2 No less than sixty (60) calendar days prior to release of the final Request for Proposals, RCTC shall provide the County an opportunity to review and comment on those sections ofthe Request for Proposals that pertain to work to be completed within the County's Jurisdiction. 5.3 RCTC shall require its Contractor to obtain encroachment permits from County for construction of any Project work within the County's Jurisdiction. 5.4 RCTC shall include, in its contract with the Contractor, a requirement that the Contractor include the County as an additional insured and as an indemnified party under said agreement. 5.5 As between the RCTC and the County, RCTC shall be responsible for design, reviews, approvals, and inspection ofthe Project work within the County's Jurisdiction to ensure conformance with the County Standards during completion of the Project design following selection ofthe Contractor, and during Project construction and maintenance periods. 5.6 Except in the case of an unforeseen circumstance, RCTC shall require its Contractor to provide at least a fifteen (15) day notification to County prior to any full or partial closure of any streets within County's Jurisdiction exceeding one (I) day in duration. Short term closures less than one (1) day in duration shall require forty eight (48) hours prior notice. 5.7 RCTC will institute a public outreach campaign to keep the residents of the County and the general public apprised of the Project work, and any street closures and other impacts to use of the County right of way that may result from the Project. 5.7 RCTC shall provide as-built plans for Project work within County's Jurisdiction within 120 days ofNotice ofCompletion. 6. Obligations ofthe County. 3 17336.02100\5937448.3 9 6.1 The County shall review the sections of the Request for Proposals that pertain to work to be completed within the County's Jurisdiction, and shall provide comments to RCTC, if any, within thirty (30) calendar days of the County's receipt from RCTC of the Request for Proposals. 6.2 The County shall timely process the required encroachment permits to cover the Contractor's work on the Project within the County right of way. Encroachment permits shall be processed in no more than five (5) working days after receipt of a complete encroachment permit application from Contractor. The County shall not issue any encroachment permits to any other contractors if the proposed work thereunder has the potential to delay or impact the Project, without first coordinating the same with the Contractor and RCTC. All required encroachment permits to be issued by County shall be issued in the name ofRCTC. 6.3 The County shall have appropriate representatives regularly attend meetings of the Contractor's task forces formed for public information, traffic management and detours, local street construction, and related construction work impacting the County', and shall provide input at such meetings related to Project work that may impaCt County residents. 6.4 The County shall waive any and all charges and fees related to plan review and inspections for the Project. 6.5 The County shall waive any street trenching restrictions/moratoriums currently in place within the County limits as respect to the Project work. 6.6 Following completion of the Project work within the County Jurisdiction and prior to final acceptance thereof, the County shall timely review and approve the work. The County shall assume responsibility of the Project facilities completed within the County's Jurisdiction upon acceptance of the work. Such acceptance shall be evidenced by the recordation of the deed for the new Frontage Road. 6.7 The County shall timely, so as not to delay the Project, review, approve, and execute any necessary agreements or amendments to agreements with RCTC, Caltrans and/or the Contractor related to the Project work, or any Project facilities within the County's Jurisdiction. 6.8 The County shall not allow any encroachment within the County's right of way if such encroachment may interfere with the Project or the Project construction, without first coordinating the same with the Contractor and RCTC. 6.9 The County shall install, maintain, operate, and repair its facilities in a manner which avoids or minimizes, to the extent possible and reasonable, any impact to the Project. 6.10 The County will make its best efforts to perform all obligations of the County related to the Project in such a manner as to allow the Project to progress as scheduled. 7. Mutual Agreement Regarding Project Plans and Construction. 7.1 Other than reviews related to final inspection and County acceptance of the Project facilities within the County's Jurisdiction, the Parties agree that RCTC shall be the party 4 17336.02100\5937448.3 10 responsible for conducting reviews of the Contractor's designs and plans, and for performance of any required field inspections to document that the work performed conforms to County Standards. RCTC shall provide the County copies of all designs plans for improvements within County's Jurisdiction, for review and comment during development by the Contractor of the final design for the Project. Approval of the Contractor's in-process designs and plans shall remain within the sole discretion of RCTC. The above does not preclude the County from performing inspections or reviews of any County facility. 8. Right of Way Acquisition/Relinquishment. 8.1 The Parties acknowledge and agree that Frontage Road along the corridor of the Project within the County's jurisdiction, as shown on Exhibit A, may require relinquishment consisting of vacating and quitclaiming right of way by County to RCTC in order to allow for construction of the Project. 8.2 RCTC shall acquire, at its sole cost, new, replacement right of way for the County in exchange for the Frontage Road right of way to be vacated by the County, and shall deed such replacement Frontage Road right of way to the County in fee concurrently with the vacation and quitclaim of the Frontage Road vacated by County. The County shall timely accept such new right of way from RCTC. 8.3 RCTC and the County agree that RCTC acquired replacement right of way for any relocated Frontage Road will be just compensation for the vacated Frontage Road right of way required for the Project. 8.4 The County shall, in a timely manner, following notification of completion of the new Frontage Road by RCTC and acceptance by the County thereof, vacate and quitclaim the existing Frontage Road property. Exhibit A shows the existing Frontage Road alignment along with a proposed realignment alternative. The final alignment of Frontage Road will be subject to County approval, which approval shall not be unreasonably withheld or delayed. 9. Dispute Resolution. Unless otherwise specified herein, the Parties shall comply with the following procedures in the case of a dispute, claim or controversy arising under or in relation to this Cooperative Agreement. If one of the procedures below has already been completed pursuant to another section of this Cooperative Agreement, the matter shall immediately be submitted to the subsequent procedure. 9.1 Submission to RCTC Executive Director and Transportation Director. The dispute shall be referred for negotiation to the RCTC Executive Director and the Director of the County Transportation Department ("Transportation Director"). The RCTC Executive Director and the Transportation Director agree to undertake good faith attempts to resolve said dispute, claim or controversy within ten (1 0) calendar days after the receipt of written notice from the Party alleging that a dispute, claim or controversy exists. The Parties additionally agree to cooperate with the other Party in scheduling negotiation sessions. However, if said matter is not resolved within thirty (30) calendar days after conducting the first negotiating session, either Party may then request that the matter be submitted to further dispute resolution procedures, as may be agreed upon by the Parties. 5 17336.02100\5937448.3 11 9.2 Legal Action. If a matter is not resolved within thirty (30) calendar days after the first negotiating session between the RCTC Executive Director and the Transportation Director, unless otherwise agreed upon in writing by the Parties, either Party may proceed with any other remedy available in law or in equity. 10. Indemnification. I 0.1 RCTC shall indemnify, defend and hold the County, its directors, officials, officers, employees, agents, consultants and contractors free and harm less from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any breach of contract, negligent acts, omissions or breach of law, or willful misconduct of RCTC, its officials, officers, employees, agents, consultants or contractors in the performance ofRCTC's obligations under this Cooperative Agreement, including the payment of all reasonable attorneys fees. 10.2 The County shall indemnify, defend and hold RCTC, its directors, officials, officers, employees, agents, consultants and contractors free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any breach of contract, negligent acts, omissions or breach of law, or willful misconduct of the County, its officials, officers, employees, agents, consultants or contractors in the performance of the County's obligations under this Cooperative Agreement, including the payment of all reasonable attorneys fees. 10.3 The indemnification provisions set forth in this Section 10 shall survtve any expiration or termination of this Cooperative Agreement. 11. 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 or entity (other than that acts or failure to act of the Parties); or any other causes beyond the control or without the fault of the Party claiming an extension of time to perform or relief from default. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sentto the other party within thirty (30) days of the commencement of the cause. Times of performance under this Cooperative Agreement may also be extended in writing by mutual agreement between the Parties. 12. Amendments. This Cooperative Agreement may be amended at any time by the mutual consent of the Parties by an instrument in writing; however, no amendments or other modifications of this Cooperative Agreement shall be binding unless executed in writing by both Parties hereto, or their respective successors or assigns. 6 17336 02100\5937448.3 12 13. Assignment of Cooperative Agreement. Neither Party may assign or transfer its respective rights or obligations under this Cooperative Agreement without the express written consent of the other Party. Any purported assignment or transfer by one Party without the express written consent of the other Party shall be null and void and of no force or effect. 14. Waiver. No delay or omission in the exercise of any right or remedy of a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of either Party shall be deemed to waive or render unnecessary such Party's consent to or approval of any subsequent act of the other Party. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Cooperative Agreement. 15. Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Cooperative 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 ofthe remaining phrases, sentences, clauses, paragraphs, or sections of this Cooperative Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 16. Third Party Beneficiaries. The Contractor is an intended third-party beneficiary of this Cooperative Agreement. Except for the Contractor, there are no third-party beneficiaries to this Cooperative Agreement. [Signatures on following page] 7 ] 7336.02] 00\5937448.3 13 SIGNATURE PAGE TO COOPERATIVE AGREEMENT FOR STATE ROUTE 91 EXPRESS LANES AND CORRIDOR IMPROVEMENTS RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: Anne E. Mayer Executive Director Approved as to form: BEST BEST & KRIEGER LLP General Counsel for RCTC 17336.02100\5937448.3 8 14 COUNTY OF RIVERSIDE By: Attest: By: John J. Benoit Chair of the Board County Clerk Approved as to form: County Counsel 17336.02100\5937448.3 Exhibit A FRONTAGE ROAD ALIGNMENT (insert map) 9 15 ~ -------EXISTING STATE RIW 1 1 1 1 1 1 1 PROPOSED STATE RIW -------AREA POTENTIAL EFFECT ----PROPOSED CITY RIW ----PERMANENT EASEMENT ----PARCEL LINE ----PERMANENT EASEMENT (UTILITIES) ----TCE (UTILITIES) I I I I I I I PROPOSED RIW (UTILITIES) ---PROPOSED SIDEWALK PROPOSED LOCAL STREET COLD MILL AND OVERLAY ATTACHMENT 2 SR -91 CORRIDOR IMPROVEMENT PROJECT SHT 1 OF 2 PARSONS HDO E. GUo\1111111., IUITI 100 PIIIIE (101) 211-31011 tiii'ARJO. CA 11,_1 FAX (101) II .... "OISCLAIIIER-Riverelde County Tranepqrtotlon Commleelon, Calene and vorl-other public ap~lee are_ still In lhe prannlng eta-of tl'te pr~ pro ect. No decision ha8 tieen mQCI'i {fl,arp,ln.fh. the al gnment or e:fn'clilalon of tne f,:_rnWfl• da, off ram~ and ancillary foe~~~. a'll:t•~r.t:: ~.re=1::cs.tte~ n •,W~nded ~~·~be ~,mer.t any ~cted capital ,:reravement. The lnf~r'\ can~~i:l an<ltor c~epfc"ted ~H~. ~ 1Pn'"aGtrJ.~b~~~M10.W fa C::~~ ~~ cgt ~i t~~n~rt~~·-any -------AREA POTENTIAL EFFECT ----PROPOSED CITY RIW PERMANENT EASEMENT ----PARCEL LINE PERMANENT EASEMENT (UTILITIES) TCE (UTILITIES) 'TJ'Ti'TI-,1-,Irii'TI PROPOSED RIW (UTILITIES) -PROPOSED SIDEWALK -PROPOSED LOCAL STREET -COLD MILL AND OVERLAY SR -91 CORRIDOR IMPROVEMENT PROJECT SHT 2 OF 2 PARSONS ..... ~ ......... ~ 1100 E. usn-., IUI1E • ...._ CIOI) 21~1100 GIITMJO. CA tt'Nt FAX (101) 2113101 AGENDA ITEM 9 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April 23, 2012 TO: Western Riverside County Programs and Projects Committee FROM: Lisa DaSilva, Capital Projects Manager THROUGH: Marlin Feenstra, Project Delivery Director Agreement with Jacobs Project Management Co. for Construction SUBJECT: Management Services and Cooperative Agreement with Caltrans for Construction of the Interstate 21 5 Central Widening Project from Scott Road to Nuevo Road, in the City of Perris STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement No. 1 2-31-034-00 to Jacobs Project Management Co. (Jacobs) to provide construction management (CM) services, materials testing, and construction surveying for the 1-21 5 central widening project, Scott Road to Nuevo Road, in the city of Perris, in the amount of $11,807,334, plus a contingency amount of $1,192,666, for a total amount not to exceed $13 million; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work as may be required for the project; 4) Approve Cooperative Agreement No. 12-31-078-00 with Caltrans for construction of the project; 5) Authorize the Executive Director, pursuant to legal counsel review, to execute the cooperative agreement and future non-funding related amendments to this agreement; and 6) Forward to the Commission for final action. BACKGROUND INFORMATION: The Commission requires the services of a qualified firm to provide CM, materials testing, and construction surveying services for construction of the 1-21 5 central widening project from Scott Road to Nuevo Road. Services are anticipated to include pre-construction plan, specification, and estimate review; construction project advertising, bid analysis, and award; construction inspection; claim analysis; contractor interface and contract administration; office engineering; and other duties as appropriate for CM, as well as materials testing and construction surveying. Agenda Item 9 18 Selection Process A request for qualifications (RFQ) for CM services, material testing, and construction surveying for the project was issued on December 12, 2011, with consultant statement of qualifications (SOQ) due February 9, 2012. The Commission received six SOQs from AECOM/CAL TROP Corp., ARCADIS U.S. Inc., Harris & Associates, HDR Construction Control Corp., Jacobs, and Transtech Engineers, Inc. An evaluation committee was appointed to review the SOQs received and to conduct firm interviews. The evaluation committee members included representatives from Commission staff, Bechtel, Caltrans, and the city of Perris. Based on the committee's evaluation of written SOQ submittals, and pursuant to the terms of the RFQ, the committee shortlisted four of the six offerors and invited those firms to the interview portion of the evaluation and selection process. The short listed firms included: • AECOM/CALTROP Corp. • ARCADIS U.S. Inc. • Harris & Associates • Jacobs Interviews with the above-referenced firms were conducted on March 14, and, after final scoring by the evaluation committee, Jacobs was ranked the most qualified firm under the terms of the RFQ. Subsequently, staff negotiated the scope (including the appropriate level of effort, labor categories/mix, etc.), cost, and schedule proposal with Jacobs for the project services and established a fair and reasonable price. Pre-award payroll audits of the Jacobs team (Arellano Associates, Falcon Engineering Services, Jacobs, MTGL, Inc., Psomas, and Vali Cooper and Associates, Inc.) including overhead rates and accounting systems, are being conducted by a certified public accounting firm retained by the Commission. In addition, staff has been working with Caltrans to develop a cooperative agreement between the Commission and Caltrans that defines the respective roles and responsibilities for the .construction of the project. The draft cooperative agreement is included as Attachment 2. Recommendation Staff recommends award of Agreement No. 1 2-31-034-00 to Jacobs to perform CM services, materials testing, and construction surveying for the 1-21 5 central widening based on the final project scope and cost included with Attachment 1, in Agenda Item 9 19 the amount of $11 ,807 ,334, plus a contingency amount of $1,192,666 for unanticipated changes, for a total amount not to exceed $13 million. Staff further recommends that the Commission approve Cooperative Agreement No. 12-31-078-00 with Caltrans for construction of the project and authorize the Executive Director, pursuant to legal counsel review, to execute the cooperative agreement and future non-funding related amendments to this agreement. Financial Information In Fiscal Year Budget: I Yes \Year: I FY 2011/12 Amount: I $22,000 N/A FY2012/13+ $12,978,000 Source of Funds: I CMIA or other State Budget Adjustment: I No N/A GL!Project Accounting No.: 003023 81302 262 31 81301 Fiscal Procedures Approved: ~~ I Date: I Attachments: 1) Agreement 12-31-034-00 with Jacobs Project Management Co. 2) Cooperative Agreement 12-31-078-00 with Caltrans (District Agreement 08-1533) Agenda Item 9 20 04/13/12 ------------------------------------------------ ATTACHMENT 1 AGREEMENT NO. 12-31-034-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH JACOBS PROJECT MANAGEMENT CO. FOR CONSTRUCTION MANAGEMENT, MATERIALS TESTING AND CONSTRUCTION SURVEYING SERVICES FOR THE INTERSTATE 215 WIDENING, SCOTT ROAD TO NUEVO ROAD PROJECT 1. PARTIES AND DATE. This Agreement is made and entered into this _ day of , 2012, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and JACOBS PROJECT MANAGEMENT CO. ("Consultant"), a Delaware corporation. 2. RECITALS. 2.1 On November 8, 1988 the Voters of Riverside County approved Measure A authorizing the collection of .a one-half percent (1/2 %) retail transactions and use tax (the "tax") to fund transportation programs and improvements within the County of Riverside, and adopting the Riverside County Transportation Improvement Plan (the "Plan"). 2.2 Pursuant to Public Utility Code Sections 240000 et seq., the Commission is authorized to allocate the proceeds of the Tax in furtherance of the Plan. 2.3 On November 5, 2002, the voters of Riverside County approved an extension of the Measure A tax for an additional thirty (30) years for the continued funding of transportation and improvements within the County of Riverside. 2.4 Consultant desires to perform and assume responsibility for the provision of certain professional services required by the Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing construction management, engineering surveying and testing services to public clients, is licensed in the State of California (as necessary), and is familiar with the plans of the Commission. 2.5 The Commission desires to engage Consultant to render such services for the Interstate 215 Widening, Scott Road to Nuevo Road Project ("Project"), as set forth in this Agreement. 17336.0140017381061.2 1 21 3. TERMS. 3.1 General Scope of Services. Consultant shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise, and incidental and customary work necessary to fully and adequately supply the professional construction management, engineering surveying and testing services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.2 Commencement of Services. The Consultant shall commence work upon receipt of a written "Notice to Proceed" or "Limited Notice to Proceed" from Commission. 3.3 Term. The term of this Agreement shall be from the date of execution of this Agreement or the date of issuance of the Notice to Proceed by the Commission, whichever occurs first, to the issuance by the Commission to Consultant of a Notice of Final Acceptance, as defined in paragraph 3.12 below, or December 31, 2015, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. 3.4 Commission's Representative. The Commission hereby designates the Commission's Executive Director, or his or her designee, to act as its Representative for the performance of this Agreement ("Commission's Representative"). Commission's Representative shall have the authority to act on behalf of the Commission for all purposes under this Agreement. Commission's Representative shall also review and give approval, as needed, to the details of Consultant's work as it progresses. Consultant shall not accept direction or orders from any person other than the Commission's Representative or his or her designee. 3.5 Consultant's Representative. Consultant hereby designates Joseph E. Jenkins to act as its Representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to act on behalf of Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his professional skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. Consultant shall work closely and cooperate fully with Commission's Representative and any other agencies which may have jurisdiction over, or an interest in, the Services. Consultant's Representative shall be available to the Commission staff at all reasonable times. Any substitution in Consultant's Representative shall be approved in writing by Commission's Representative. 17336.01400\7381061.2 2 22 3.6 Substitution of Key Personnel. Consultant has represented to the Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval by the Commission. In the event that the Commission and Consultant cannot agree as to the substitution of the key personnel, the Commission shall be entitled to terminate this Agreement for cause, pursuant to the provisions of Section 3.14. The key personnel for performance of this Agreement are identified in the attached organization chart, attached as part of Exhibit "A". 3. 7 Preliminarv Review of Work. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Agreement shall be submitted to the Commission's Representative in draft form, and the Commission may require revisions of such drafts prior to formal submission and approval. In the event plans and designs are to be developed as part of the Project, final detailed plans and designs shall be contingent upon obtaining environmental clearance as may be required in connection with the Project. In the event that Commission's Representative, in his sole discretion, determines the formally submitted work product to be not in accordance with the standard of care established under this agreement, Commission's Representative may require Consultant to revise and resubmit the work atria cost to the Commission. 3.8 Appearance at Hearings. If and when required by the Commission, Consultant shall render assistance at public hearings or other meetings related to the Project or necessary to the performance of the Services. However, Consultant shall not be required to, and will not, render any decision, interpretation or recommendation regarding questions of a legal nature or which may be construed as constituting a legal opinion. 3.9 Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Consultant further represents and warrants to the Commission that its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the Commission, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from 17336.01400\7381061.2 3 23 the Consultant's errors and om1ss1ons. Any employee of Consultant or its sub- consultants who is determined by the Commission to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the Commission, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project 3.10 Opportunity to Cure. Commission may provide Consultant an opportunity to cure, at Consultant's expense, all errors and omissions which may be disclosed during Project implementation. Should Consultant fail to make such correction in a timely manner, such correction may be made by the Commission, and the cost thereof charged to Consultant 3.11 Inspection of Work. Consultant shall allow the Commission's Representative to inspect or review Consultant's work in progress at any reasonable time. 3.12 Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term set forth in Section 3.3, the Commission shall give Consultant a written Notice of Final Acceptance. Upon receipt:of such notice, Consultant shall incur no further costs hereunder, unless otherwise specified in the Notice o'f Final Acceptance. Consultant may request i~suance of a NotiCe of Final Acceptance when, in its opinion, it has satisfactorily completed all Servi~s required under the terms ef this Agreement In the event copyrights are permitted 'tinder this Agreement, then in connection with Federal funding, it is hereby acknowledged and agreed that the United States Department of Transportation shall have the royalty-free non-exclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for governmental purposes. 3.13 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cai!OSHA requirements, and shall give all notices required by law. For example, and not by way of limitation, Consultant shall keep itself fully informed of and in compliance with all implementing regulations, design standards, specifications, previous commitments that must be incorporated in the design of the Project, and administrative controls including those of the United States Department of Transportation. Compliance with Federal procedures may include completion of the applicable environmental documents and approved by a governmental body. If the Consultant performs any work knowing it to be contrary to the requirements of laws, rules and regulations and without giving written notice to the Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the 17336.01400\7381061.2 4 24 indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.14 Termination. 3.14.1 Notice; Reason. Commission may, by written notice to Consultant, terminate this Agreement, in whole or in part, at any time by giving written notice to Consultant of such termination, and specifying the effective date thereof ("Notice of Termination"). Such termination may be for Commission's convenience or because of Consultant's failure to perform its duties and obligations under this Agreement, including, but not limited to, the failure of Consultant to timely perform Services pursuant to the Schedule of Services described in Section 3.15 of this Agreement. Consultant may not terminate this Agreement except for cause. 3.14.2 Discontinuance of Services. Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein, and deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 3.14.3 Effect of Termination For Convenience. If the termination is to be for the convenience of the Commission, the Commission shall compensate Consultant for Services fully and adequately provided through the effective date of termination. Such payment shall include a prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit on unperformed Services. Consultant shall provide documentation deemed adequate by Commission's Representative to show the Services actually completed by Consultant prior to the effective date of termination. This Agreement shall terminate on the effective date of the Notice of Termination. 3.14.4 Effect of Termination for Cause. If the termination is for cause, Consultant shall be compensated for those Services which have been fully and adequately completed and accepted by the Commission as of the date the Commission provides the Notice of Termination. In such case, the Commission may take over the work and prosecute the same to completion by agreement or otherwise. Further, Consultant shall be liable to the Commission for any reasonable additional costs incurred by the Commission to revise work for which the Commission has compensated Consultant under this Agreement, but which the Commission has determined in its sole discretion needs to be revised, in part or whole, to complete the Project because it did not meet the standard of care established in Section 3.9. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 3.14.5 Cumulative Remedies. The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 17336.01400\7381061.2 5 25 3.14.6 Procurement of Similar Services. In the event this Agreement is terminated, in whole or in part, as provided by this Section, the Commission may procure, upon such terms and in such manner as it deems appropriate, services similar to those terminated. 3.14.7 Waivers. Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. 3.15 Schedule and Progress of Services. 3.15.1 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of Commission's Representative, Consultant shall provide a more detailed schedule of anticipated perfdrmance to meet the Schedule of Services. 3.15.2 Modification of the Schedule. Consultant shall regularly report to the Commission, through correspondence or progress reports, its progress in providing required Services within the scheduled time periods. Commission shall be promptly informed of all anticipated delays. In the event that Consultant determines that a schedule modification is necessary, Consultant shall promptly submit a revised Schedule of Services for approval by Commission's Representative. 3.15.3 Trend Meetings. Consultant shall conduct trend meetings with the Commission's Representative and other interested parties, as requested by the Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a standard day and time. These trend meetings will encompass focused and informal discussions concerning scope, schedule, and current progress of Services, relevant cost issues, and future Project objectives. Consultant shall be responsible for the preparation and distribution of meeting agendas to be received by the Commission and other attendees no later than three (3) working days prior to the meeting. 3.15.4 Progress Reports. As part of its monthly invoice, Consultant shall submit a progress report, in a form determined by the Commission, which will indicate the progress achieved during the previous month in relation to the Schedule of Services. Submission of such progress report by Consultant shall be a condition precedent to receipt of payment from the Commission for each monthly invoice submitted. 17336.0140017381061.2 6 26 3.16 Delay in Performance. 3.16.1 Excusable Delays. Should Consultant be delayed or prevented from the timely performance of any act or Services required by the terms of the Agreement by reason of acts of God or of the public enemy, acts or omissions of the Commission or other governmental agencies in either their sovereign or contractual capacities, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather, performance of such act shall be excused for the period of such delay. 3.16.2 Written Notice. If Consultant believes it is entitled to an extension of time due to conditions set forth in subsection 3.16.1, Consultant shall provide written notice to the Commission within seven (7) working days from the time Consultant knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of Consultant to provide such timely notice shall constitute a waiver by Consultant of any right to an excusable delay in time of performance. 3.16.3 Mutual Agreement. Performance of any Services under this Agreement may be~delayed upbn mutual agreement of the Parties. Upon such agreement, Consultant's Schedule of Services shall be extended as necessary by the Commission. eonsultant shall take all reasonable steps to minimize delay in completion, and additioiJal costs, resulting from any such extension. <,:c':." 3.17 Status of Consultant/Subconsultants. 3.17.1 Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and not as an employee, agent or representative of the Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries and other amounts due such personnel in connection with their performance of Services and as required by law. Consultant shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, disability insurance, and workers' compensation insurance. 3.17 .2 Prevailing Wages. By its execution of this Agreement, Consultant certifies that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et ~ ("Prevailing Wage Laws"), which require the payment of 17336.01400\7381061.2 7 27 prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Copies of the prevailing rate of per diem wages are on file at the Commission's offices. Consultant shall make copies of the prevailing rates of per diem wages for each craft; classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Certified Payrolls are to be submitted whenever required by Prevailing Wage laws. 3.17.3 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein, without the prior written consent of the Commission. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3~17.4 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. If Consultant wishes to use a firm as a subcontractor which is not specified in the proposal upon which this Agreement was awarded, prior written approval must be obtained from the Commission. The Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Consultant has, as part of its proposal, identified certain companies/firms that will be subconsultants utilized by Consultant ("Subconsultants") for Project delivery. A list of said Subconsultants is attached hereto as Exhibit "C" Part 2 and made a part hereof. The Commission hereby approves the use by Consultant of the Subconsultants identified in Exhibit "C" Part 2. In the event and prior to the replacement of any Subconsultant approved herein, the Consultant shall seek and obtain the Commission's written approval. Exhibit "C" Part 2 also sets forth the rates at which each Subconsultant shall bill the Consultant for Services and that are subject to reimbursement by the Commission to Consultant. The cost of Addition Direct Costs, as defined in exhibit "C," shall be the same for both the Consultant and all subconsultants, unless otherwise identified in Exhibit "C" Part 2. Consultant acknowledges that approval of Consultant's utilization of the identified Subconsultants together with the incorporation of Subconsultants' rate schedules and cost proposals into this Agreement shall in no way be construed to create any contractual relationship between any Subconsultant and the Commission. The Subconsultant rate schedules and cost proposals contained herein are for 17336.01400\7381061.2 8 28 accounting purposes only. In the event that any Subconsultant shall bring any action, claim or proceeding purporting to enforce any right purportedly arising under this Agreement, the Consultant shall be responsible for the Commission's reasonable legal fees without regard to the merits of any such claim. 3.18 Ownership of Materials/Confidentiality. 3.18.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all su~h . Documents & Data. Consultant makes no such representation and warrantY in'te'gafct: to Documents & Data which were prepared by desjgn professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission's sole risk. 3.18.21ntellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media ("Intellectual Property") prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. 17336.0140017381061.2 9 29 Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 3.18.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descrip~ions, computer progra~ data, input record data, written information, and ~ther Documerlts and Data either created by or provided to Consultant in connection with the p,€lrformance of this Agreem,tFnt. shall be held confidential by Consultant. Such materials shall npt, without the prior written con~ent of Commission, be used by Consultant for any purposes other than the performcif]ce of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.19 Indemnification. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold Commission, its directors, officials, officers, employees, consultants, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to alleged negligent acts, omissions, or willful misconduct of Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of consequential damages, expert witness fees, and attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Commission, its directors, officials, officers, employees, consultants, or agents. 17336.01400\7381061.2 10 30 --------------------------------------- Consultant shall pay and satisfy any judgment, award or decree that may be rendered against Commission or its directors, officials, officers, employees, consultants, or agents, in any such suit, action or other legal proceeding. Consultant shall reimburse Commission and its directors, officials, officers, employees, consultants, and/or agents, for any and all legal expenses and costs, including reasonable attorney's fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Commission, its directors, officials officers, employees, consultants, or agents. Notwithstanding the foregoing, to the e~xtent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 3.20 Insurance. 3.20.1 Time for Compliance:. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.20.2 Minimum Requirememts. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same types of insurance for the duration of the Agreement. Consultant's insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) if Consultant has employees, Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required and Employer's Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal and advertising injury and property damage. If General Liability Insurance or includes a general aggregate limit, ~ither the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability: Statutory Workers' Compensation limits as required by the applicable Labor Code and 17336.01400\7381 061_2 11 31 Employer's Liability limits of no less than $1,000,000 per accident for bodily injury or disease. 3.20.3 Professional Liability. Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an amount not less than $2,000,000 per claim. 3.20.4 Aircraft Liability Insurance. Consultant, prior to the direct or indirect use of any civil aircraft to provide Service under this Agreement, shall procure and maintain, or cause to be procured and maintained, aircraft liability insurance or equivalent form, with a single limit of not less than $5,000,000 per each occurrence. Such insurance shall include coverage for owned, hired and non-owned aircraft and passengers, and shall name, or be endorsed to name, the Commission, its directors, officials, officers, employees, consultants, and agents as additional insureds with respect to the Services or operations performed by or on behalf of the Consultant. 3.20.5 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (A) General Liability. The general liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the Services or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self- insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. 17336.01400\7381061.2 12 32 (C) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the Commission; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the Commission, its directors, officials, officers, employees and agents. 3.20.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: ( 1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or (2) the Consultant shall procure a. bond guarantee!ing payment of losses and related investigation costs, claims amfadministrative and defense expenses. 3.20.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current AM. Best's rating no less than A: VIII, licensed to do business in California, and satisfactory to the Commission. 3.20.8 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.20.9 Other Insurance. At its option, the Commission may require such additional coverage(s), limits and/or the reduction of deductibles or retentions it considers reasonable and prudent based upon risk factors that may directly or indirectly impact the Project. In retaining this option Commission does not warrant Consultant's insurance program to be adequate. Consultant shall have the right to purchase insurance in addition to the insurance required in this Section. 3.21 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal 17336.01400\7381061.2 13 33 laws, rules and regulations, and shall exercise all necessary precautions for the safety of its 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. As between Consultant and the construction contractors only, the construction contractors shall remain solely responsible for construction safety notwithstanding any safety obligations of Consultant at the jobsite. The foregoing sentence shall not impact nor in any way modify or alter Consultant's indemnity and defense obligations to the Commission, as set forth in Section 3.19 of this Agreement, not any of Consultant's duties or obligations set forth under this Agreement, including the attached exhibits. 3.22 Fees and Payment. 3.22.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and Incorporated herein by reference. The total compensation shall be on the basis of direct costs plus a fixed fee as further set forth in Exhibit "C" and shall not exceed the maximum amount of Eleven Million Eight Hundred Seven Thousand Three Hundred Thirty Four Dollars ($11,807,334), without written approval of Commission's Executive Director. 3.22.2 Payment of Compensation. Consultant shall submit a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the Statement. Charges specific to each Milestone listed in the Schedule of Services shall be listed separately on an attachment to each statement. Each statement shall be accompanied by a monthly progress report and spreadsheets showing hours expended for each task for each month and the total Project to date. Each statement shall include a cover sheet bearing a certification as to the accuracy of the statement signed by the Consultant's Project Manager or other authorized officer. 3.22.3 Additional Work. Any work or activities that are in addition to, or otherwise outside of, the Services to be performed pursuant to this Agreement shall only be performed pursuant to a separate agreement between the parties. Notwithstanding the foregoing, the Commission's Executive Director may make a change to the Agreement as permitted by law or authorized by the Commission .. 17336.0140017381061.2 14 34 (a) In addition to the changes authorized above, a modification which is signed by Consultant and the Commission's Executive Director, other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable adjustment to the Agreement price, delivery schedule and other terms resulting from the issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other agreements of the parties modifying the terms of this Agreement ("Bilateral Contract Modification"). (b) Consultant shall not perform, nor be compensated for any change, without written authorization frorri the Commission's Executive Director as set forth herein. In the event such a change authorization is not issued and signed by the Commission's Executive Director, Consultant shall not provide such change. 3.22.4 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission's Representative. 3.23 Prohibited Interests. 3.23.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, t(isolicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the Commission shall have the right to rescind this Agreement without liability. 3.23.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of the Commission, during the term of his or her service with the Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.23.3 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee's regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and/or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 3.23.4 Covenant Against Contingent Fees. The Consultant represents and warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, 17336.01400\7381061.2 15 35 other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Commission shall have the right to terminate this Agreement without liability pursuant to Section 3.14, or at its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 3.23.5 Covenant Against Expenditure of Local Agency, State or Federal Funds for Lobbying. Intentionally Omitted. 3.24 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under this Agreement. The Federal Acquisition Regulations in Title 48, CFR 31 shall be the governing factors regarding allowable elements of cost. All such records shall be clearly identifiable. Consultant shall allow a representative of the Commission or any duly authorized representative of the Commission during normal business hours to examine, audit, and make transcripts or copies of any and all ledgers and books of account, invoices, vouchers, canceled checks, and any other records or documents created pursuant to this Agreement. All such information shall be retained by Consultant for at least three (3) years following termination of this Agreement. 3.25 Equal Opportu~ity Employment. Consultant represents that it is an equal opportunity employer <and it·shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, eolor, national origin, ancestry, sex or age. ·Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 3.26 Right to Emolov Other Consultants. Commission reserves the right to employ other consultants in connection with the Project. As required, Consultant shall cooperate fully with any other consultant engaged by the Commission on the Project. 3.27 Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 3.28 Attorneys' Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys' fees and, all other costs of such actions. 3.29 Time of Essence. Time is of the essence for each and every provision of this Agreement. 17336.01400\7381061.2 16 36 3.30 Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.31 Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: CONSULTANT: Jacobs Project Management Co. 3257 East Guasti Road, Suite 120 Ontario, CA 91761 Attn: Joseph E. Jenkins COMMISSION: Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty- eight (48) hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.32 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties' understanding concerning the performance of the Services. 3.33 Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.34 Entire Agreement. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof and supersedes all prior negotiations, agreements or understandings. 3.35 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.36 Provisions Applicable When Federal Department of Transportation Funds Are Involved. Omitted Intentionally 3.37 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be 17336.01400\7381061.2 17 37 deemed a waiver or relinquishment of such other right or power at any other time or times. 17336.0140017381061.2 [Signatures on following page] 18 38 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: ------------------------ John J. Benoit Chair APPROVED AS TO FORM: By: Best Best & Krieger LLP General Counsel 17336.01400\7381061.2 19 39 JACOBS PROJECT MANAGEMENT co By: ---------------------- Name Title ATTEST: By: ----------------------- Its Secretary 17336.01400\7381061.2 EXHIBIT "A" SCOPE OF SERVICES L_INSERT_j Exhibit "A" 40 EXHIBIT "A" SCOPE OF SERVICES Commission is seeking proposals from qualified engineering professionals to provide Construction Management (CM), Materials Testing, Construction Surveying and public outreach services for construction of 1-215 Widening, Scott Road to Nuevo Road, Project located in the County of Riverside and cities of Menifee and Perris, CA. Services will include pre-construction plan, specification, and estimate (PS&E) review, bid analysis, and award recommendation; construction inspection; preparation of progress payments and change orders, schedule and claim analysis; Contractor interface and contract administration; office engineering; and other assorted duties as appropriate for construction management, as well as materials testing and construction surveying and project closeout tasks. The project's final design is schedule for completion by late summer 2012. Background Information The following information will be available on CD to assist the Offeror in understanding the scope of the project. To purchase a CD for $5.00 if picked up at the Commission Offices or $10.00 if it is mailed to Offeror, send a request to Matthew Wallace at mwallace@rctc.org. The check should be made payable to the "Riverside County Transportation Commission." 1 . 95% Plan set 2. 95% Standard Special Provisions 3. 95% Engineer's estimate 4. Final Project Report (April 2011) 5. Final Environmental Document (MND/FONSI April 2011) Construction Schedule (Tentative) The anticipated construction schedule for the project is shown below: Advertisement Date: Bids Due: Recommendation to Committee: Anticipated Commission Award: Notice to Proceed Anticipated Completion Date Complete Close-Out August 7, 2012 September 27, 2012 October 22, 2012 November 14, 2012 January 2, 2013 June 30, 2015 December 31,2015 The dates listed above are contingent upon funding authorization in by August 2, 2012. Exhibit A A-1 41 Performance Requirements Construction Management: OFFEROR shall furnish a Project Manager or a Resident Engineer as a single point of contact for this agreement and to coordinate OFFEROR'S operations with COMMISSION. The single point of contact shall be responsible for all matters related to OFFEROR'S personnel and operations. The Resident Engineer shall be in responsible charge of construction activity within the Project. The Resident Engineer and Structures Representative shall be Civil Engineers, registered in the State of California. Other Assistant Resident Engineers may be assigned to each specific project responsibilities as needed. A qualified electrical engineer or inspector shall be provided to review electrical and traffic systems requirements as well as electrical utility arrangements. If the Resident Engineer is not also a registered Landscape Architect, a registered Landscape Architect shall be assigned to the project responsible for daily on-site inspections and decisions regarding highway planting and the irrigation systems that comprise a small portion of the Project. The number of. QFFER,OR personnel assigned to the project will vary throughout the duration of i~e agreement. OFFEROR personnel shall be assigned, in varying levels of responsibility, as needed by the QFFE,ROR to meet.· the project schedule, project requirements, and constructiqn activities~ Resumesi'of personnel shall be submitted to COMMISSION for review and approval prior to assignment to the Project. COMMISSION and OFFEROR will jointly determine the quality and quantity of services that are required by OFFEROR's personnel. Personnel selected for assignment by OFFEROR shall be made available for personal interviews prior to acceptance by COMMISSION. If, in the opinion of COMMISSION, an individual lacks adequate experience, the individual may be rejected or may be accepted on a trial basis until such time the individual's ability to perform the required services has been demonstrated. If, at any time, the performance of OFFEROR personnel is unsatisfactory to COMMISSION, COMMISSION may release him/her by written notice and may request another qualified person be assigned. If OFFEROR personnel are on leave of absence, the Project Manager shall provide approved, equally qualified replacement personnel until the assigned personnel returns to the Project. The typical workday includes all hours worked by the construction Contractor. If necessary, overtime for OFFEROR personnel may be required. The construction Contractor's operations may be restricted to specific hours during the week, which shall become the normal workday for OFFEROR personnel. The Project Manager, with concurrence from COMMISSION, shall have the authority to Exhibit A A-2 42 increase, decrease, or eliminate OFFEROR personnel work hours dependent on the schedule and requirements of the construction Contractor. All overtime required by OFFEROR personnel shall be approved and authorized by COMMISSION prior to each occurrence. OFFEROR personnel shall be knowledgeable of and comply with all applicable local, state, and federal regulations related to construction and construction engineering. OFFEROR personnel shall cooperate and consult with COMMISSION, State, and City officials during the course of the Project. Offeror shall consult with and coordinate activities of third party agencies and utilities. OFFEROR personnel shall perform duties as may be required to assure that construction is being performed in accordance with the Project plans and specifications. OFFEROR personnel shall keep accurate and timely records and document all work performed by the Contractor and OFFEROR. OFFEROR shall monitor for Contractor's compliance with the labor standards provisions of the contract and the related wage determination decisions of the Secretary of Labor. OFFEROR personnel shall assist COMMISSION and local agencies in obtaining compliance with the safety and accident prevention provisions of the projects. Local agencies will retain jurisdictional control for traffic control. All services required hereunder shall be performed in accordance with California Department of Transportation guidelines, regulations, policies, procedures, manuals, and standards, except as noted in the special provisions or superseded/augmented by Commission's procedures Materials Testing: The number of field testing personnel assigned to the project will vary throughout the duration of the construction contract. OFFEROR personnel will be assigned as needed by the Resident Engineer to meet the schedule of the construction Contractor. A field technician will be required throughout the construction contract period. At times, additional technicians may be required to provide support for on-going construction activities. The duration of assignments could vary from a minimum of a few days to the full term of the project. OFFEROR personnel will be available within two (2) days of written notification by COMMISSION. It is the intent of COMMISSION to maintain a consistency of material testing quality throughout each phase of each project. OFFEROR is therefore encouraged to provide, wherever and whenever possible, the same field personnel for the duration of the project. Exhibit A A-3 43 On days when work is not performed by the construction contractor, such as rainy or unsuitable weather days, OFFEROR will not provide services unless authorized by the COMMISSION Construction Manager. Resumes of materials testing personnel shall be submitted to COMMISSION for review and approval prior to assignment to the Project. If, at any time, the level of performance of any testing personnel is below expectations, COMMISSION may release that field person and request that another be assigned as needed. If a member of OFFEROR's personnel is on a leave of absence, OFFEROR's project manager will provide an equally qualified replacement employee until the original member returns to work. The replacement employee will meet all the requirements of a permanently assigned employee. All personnel will be knowledgeable of, and comply with, all applicable local, Caltrans, and federal regulations; cooperate and consult with COMMISSION and local agency officials during the course of the contract; and perform other duties as may be required to assure that the construction is being performed in accordance with permit requirements, the project plans and specifications. OFFEROR's personnel will keep records and document the work as directed by the Resident Engineer. "'' OFFEROR personnel shall assist COMMISSION and local :2~gencies in obtaining compliance with the safety and accident prevention provisions of the project. Local agencies will retain jurisdictional control for local traffic control. All services required hereunder will be performed in accordance with Caltrans regulations, policies, procedures, manuals, and standards as modified by the Commission's General Conditions and procedures. Construction Surveying: OFFEROR will furnish surveying crew(s) to perform construction surveys for the project. The number of survey crew(s) assigned to the project will vary throughout the duration of the construction contract. OFFEROR personnel will be assigned as needed by the Resident Engineer to meet the schedule of the construction contractor. It is the intent of COMMISSION to maintain a consistency of construction survey quality throughout each phase ·of each project. Therefore, OFFEROR is encouraged to provide the same field personnel for the duration of construction. It is important that the Field Party Chief(s) assigned to a project be completely familiar with the survey control and staking requirements established for the project. Construction surveying will not be performed when conditions such as weather, traffic, and other factors prevent safe and efficient operation. Exhibit A A-4 44 Resumes of OFFEROR personnel and certification must be submitted to COMMISSION for review. OFFEROR personnel must be approved by COMMISSION prior to assignment to a project. COMMISSION and OFFEROR will have the responsibility of determining the quality and quantity of work performed by OFFEROR personnel. If, at any time, the level of performance by OFFEROR personnel is below expectations, COMMISSION may release the survey crew member and request that another be assigned. If OFFEROR's survey crew personnel assigned to the project is on a leave of absence, the Project Manager will provide an equally qualified replacement(s) until the original employee(s) returns to work. The replacement will be required to meet all the requirements of the permanently assigned employee. OFFEROR personnel will: • Be knowledgeable of, and comply with all, applicable local, Caltrans, state, and federal regulations. • Cooperate and consult with COMMISSION officials during the course of the contract. • Perform duties as may be required to assure construction is performed in accordance with the project plans and specifications. • Keep contemporaneous records and document work as directed by the Resident Engineer. ~ <'' . ' All services required hereunder will be performed in accordance with Caltrans regulations, policies, procedures, manuals, and standards as modified by the Commission's General Conditions and procedures. Duties and Responsibilities 1. Pre-construction Services a. Plan Review OFFEROR shall review construction contract documents prior to construction. Tasks include review of plans, specifications, technical reports, Resident Engineer's pending files, and associated items in order to verify completeness and consistency throughout the Project. At a minimum, OFFEROR shall check for quantity discrepancies, potential conflicts, constructability, and consistency between plans, specifications and pay items. OFFEROR'S plan review shall include a review of various discipline plans (e.g., layout, drainage, bridge, landscaping, electrical, etc.) for conflicting or missing information. Exhibit A A-5 45 b. Schedule OFFEROR shall review the proposed Project schedule, compare it to the Project plans and specifications, and provide recommendations to COMMISSION, as appropriate, to ensure efficiency of Contractor and OFFEROR operations and safe and expeditious completion of the Project. C. Budget OFFEROR shall review the Project estimate and provide recommendations to COMMISSION, as appropriate, to ensure efficient utilization of funds and control of project costs. 2. Bid Process a. Bid Documents OFFEROR shall assist COMMISSION, as requested, with the following tasks: 1) Review of bid documents 2) Review bid questions and draft responses 3) Prepare bid tabulations b. .. Pre-construction Meetings OFFEROR shall assist COMMISSION in conducting one or more, pre-construction meetings with all involved parties on the Project. Parties may include, but are not limited to, the Contractor, the design engineer, Caltrans, county, cities, utility companies, and developers. C. Contract Award OFFEROR shall assist COMMISSION, as requested, with the following tasks: 1) Review bids for completeness and responsiveness 2) Perform bid analysis 3) Check Contractor references, licenses, insurance, and sureties 4) Coordinate with prospective Contractor for award of construction contract. All processes will be consistent with procedures outlined by Caltrans for Special Funded Programs. Exhibit A A-6 46 3. Project Administration a. OFFEROR shall administer the project construction contract using Caltrans Construction Manual as a guideline. b. OFFEROR shall conduct regular project coordination meetings with Contractor, COMMISSION, local agencies, and design engineer, as appropriate. c. OFFEROR shall prepare Contractor progress payments and maintain payment records and supporting documentation. All progress payments shall be reviewed by COMMISSION for approval. d. OFFEROR shall establish and maintain Project records. Project record keeping shall include, but are not limited to, RE and Assistant RE daily reports, correspondence, memoranda, contract documents, requests for information (RFis), change orders, claims, COMMISSION and engineer directives, meeting minutes, shop drawings, supplementary drawings, review and approval of submittals, schedule reviews and preparation of weekly working day statements, quantity calculations and/or documented field measurement/count and Daily Extra Work Reports that support progress payments. OFFEROR shall maintain a record of the names, addresses, and telephone and fax numbers of the Contractors, subcontractors .. and principal material suppliers. e. OFFEROR shall establish and maintain a filing system for each Project using the Caltrans Construction Manual as a guideline. OFFEROR shall transmit certain project records to the Commission using either e-Rooms or lnfoWorks, an electronic transfer and collection system. (Commission will train OFFEROR in the requirements and use of the system.) f. OFFEROR shall monitor Contractors' construction schedules on an ongoing basis and alert COMMISSION to conditions that may lead to delays in completion of the Project. g. OFFEROR shall prepare and submit a Monthly Report for the project. The Monthly Report shall describe construction activity, accomplishments, issues and status of submittals, RFis, Change Orders and the project budget and schedule status against approved Baseline Schedule. A minimum of four (4) construction photos shall be submitted. h. OFFEROR shall review and ensure compliance with environmental requirements. i. OFFEROR shall participate in partnering sessions with the Contractor, Exhibit A A-7 47 COMMISSION, and Local Agencies, if required. j. OFFEROR shall assure that the Project meets all provisions of the Caltrans Quality Assurance Program Manual. OFFEROR shall prepare and submit a project-specific Quality Assurance Plan (QAP) to the COMMISSION for review and approval. The QAP shall be reviewed quarterly and updated as necessary. All OFFEROR'S project personnel shall indicate their review of the QAP by signature. k. OFFEROR shall review Contractors' certified payroll records and other labor compliance records and assure the construction Contractor's compliance with Contract requirements I. OFFEROR shall monitor and maintain records to assure that the construction Contractor complies with all provisions of the Storm Water Pollution Prevention Plan (SWPPP). m. OFFEROR shall assure that the Project meets all applicable regulations of the Air Quality Management District (AQMD). 4. Construction Coordination a. OFFEROR shall provide a minimum of one qualified Senior Resident Engineer and other qualified Resident Engineers, as'.needed to effectively manage the Project. b. OFFEROR Resident Engineer shall act as the prime point of contact between Contractor~ COMMISSION, OFFEROR's construction surveyor, OFFEROR's materials inspector, OFFEROR's public outreach, and utility companies. OFFEROR may, when requested by COMMISSION, act as point of contact between design engineers, cities, and the public. c. OFFEROR shall maintain regular contact with COMMISSION's Construction Manager. d. e. f. Exhibit A OFFEROR shall coordinate relocations and arrangements for power for the site with utility companies and their designees. , OFFEROR shall review Project plans and special provisions for possible errors and deficiencies prior to construction of any specific element and report such findings to COMMISSION. Should COMMISSION determine that changes are necessary, OFFEROR shall process and implement change orders in accordance with contract documents. OFFEROR shall provide all required monitoring, coordination, and tracking A-8 48 of construction progress to ensure the Project proceeds on schedule and according to the order of work in the plans and special provisions. OFFEROR shall expedite work, as required, to maintain schedule in conjunction with the overall construction staging program. g. OFFEROR shall review shop drawings, coordinating with the Source Inspection Project Manager and Division of Structures as appropriate. OFFEROR shall coordinate resolution of Requests for Information (RFI) with the Commission's designer and communicate actions and status with the Commission's Construction Manager. OFFEROR shall log and track all submittals and requests. h. OFFEROR shall provide a qualified SWPPP coordinator who shall review Contractor-prepared Storm Water Pollution Prevention Plans (SWPPP) and coordinate approval with COMMISSION. OFFEROR shall cooperate with monitoring agency inspections and field reviews. i. OFFEROR shall coordinate the implementation of any changes with the Construction Manager and the design engineer. All change orders shall be prepared using Commission's format and procedures. All change orders will be submitted to Caltrans (on the State Highway System) and the Commission for approval. J. OFFEROR shall review and approve falsework, shoring and other temporary work plans. k. I. m. 5. a. Exhibit A OFFEROR shall review and approve Traffic Control Plans and forward to local jurisdictions for approval as necessary. OFFEROR shall coordinate all Project construction activities with other on- going projects within and adjacent to the Project limits. OFFEROR shall review existing highway electrical and traffic systems arrangements with Caltrans and arrange, through the construction Contractor, any temporary facilities required during construction. Construction Inspection OFFEROR shall coordinate all required inspections necessary for the Project. OFFEROR shall ensure that appropriate City and local agencies are notified and present as required throughout the Project. OFFEROR shall notify COMMISSION immediately regarding any directives, recommendations, notices, etc. received from agencies other than COMMIS$10N before taking action. A-9 49 b. OFFEROR shall perform and document daily on-site inspections of the progress and quality of construction to determine if the work being performed is in general conformance with the contract documents, permits, all applicable laws, codes, and ordinances. c. OFFEROR shall exercise reasonable care and diligence to discover and promptly report to COMMISSION any and all defects or deficiencies in the materials or workmanship used in the Project. d. OFFEROR personnel assigned to the Project shall be thoroughly familiar with Caltrans Standard Specifications, Caltrans Standard Plans, and Caltrans Erosion Control and Highway Planting requirements. OFFEROR personnel shall have the ability to read and interpret construction plans and specifications. OFFEROR personnel shall also have knowledge of State of California Construction Safety Orders (CaiOSHA) and traffic control practices as specified in the Work Area Traffic Control Handbook (WATCH). In addition, OFFEROR personnel shall be familiar with the construction requirements of Storm Water Pollution Prevention Program. e. Assignments to be performed by OFFEROR personnel shall include, but are not limited to, the following: Exhibit A 1) Earthwork inspection including source and quality of imported and/or fill material and compaction; subgrade and paving inspection including checking alignment and grade; structure work inspection including foundation construction [piling], structure element formwork, reinforcing and prestressing steel installation, concrete placement; prestressing; joint seal; and barrier layout and inspection; subsurface and finish drainage system inspection; signing and striping inspection; electrical and highway traffic system inspection; landscape hardscape, soil amendment, planting and irrigation installation inspection; fencing, temporary and permanent traffic barriers and device inspection; monitor construction traffic control and detours, and any other duties that may be required to determine that construction of the Project is being performed in accordance with the contract documents. 2) Identifying actual and potential problems associated with the Project and recommending sound engineering solutions. 3) Arrange testing in accordance with Caltrans highway materials testing and planting procedures. Arrange for necessary corrective work, as required. Provide comprehensive materials records including materials sources, inspection & test results and A-10 50 f. Exhibit A documented compliance with specifications. 4) Maintaining awareness of safety and health requirements. Monitoring Contractors' compliance with applicable regulations and construction contract provisions for the protection of the public and Project personnel. 5) Preparing complete and accurate daily reports, calculations, project records, payment quantity documents, reports, and correspondence related to Project activities. Documents shall be sufficient to support actual cost of force account work. 6) Preparing construction sketches, drawings, and cross-sections, as necessary. 7) Keep records of all deviations from the approved plans to assist the Design Engineer in the preparation of as-built plans. Provide final clearance dimensions from roadways to bridge soffits. 8) Providingjllspections for environmental compliance. Coordinate with third-party consultants or stake holders for special monitoring or inspections,and disposal of hazardous material, if required. 9) Maintaining awareness of water discharge requirements. Monitoring Contractors' compliance with applicable regulations and construction contract provisions. 1 0) Monitoring Contractors' compliance with applicable regulations required by AQMD. 11 )Coordinate Contractor's lane and/or freeway traffic closures with Caltrans and the CHP including, when necessary, the provision of CHP services for COZEEP operations. Maintain records of COZEEP participation to support the Commission's payment process for the CHP. 12)Monitor work associated with Temporary Construction Easements and communicate with land owners through the Commission's representatives. 13)0ther duties as may be required or reasonably requested Construction of Cast in Drilled Hole, CIDH, piles may require the contractor to utilize "wet method" installation procedures. Use of the "wet method" requires the contractor to install inspection pipes for any piles greater than A-11 51 18" in diameter. These inspection pipes are used by the owner to determine the relative density of the pile concrete via gamma-gamma log testing. An estimated cost to perform gamma-gamma log testing as an optional service is included on the cost summary. This cost is not included in the authorized contract amount and must be approved by Commission prior to any work is preformed. 6. Project Support a. Construction Surveys OFFEROR shall perform construction surveying services, field calculations, and home office calculations to support construction of the projects. OFFEROR may be requested to review available survey data, construction plans, and right-of-way plans to confirm compatibility and to identify discrepancies prior to and during construction of proposed projects. The survey effort shall assist the Construction Management team in all phases of construction. The Resident Engineer will assign survey work by issuing a "Request for Survey Services". Requests may include, but nqJ be limited to,. the following types of surveys and related services: Exhibit A 1) Construction Surveys Surv~y calculations and adjustments shall be performed with established and computed coordinates based on the California Coordinate System. Cross-section data collection shall be performed by conventional and terrain line interpolation survey methods. Survey data will include topography, cross-section, and other survey data in computer formats compatible with the Caltrans computer survey and design systems. Prepare and maintain survey documents. Survey documents include survey field notes, maps, drawings, and other survey documents. Perform construction staking, including but not limited to: • • • .. • • • Utility locations Clearing limits TCE and R/W limits Slope staking Storm drain, sanitary sewer, and irrigation systems Drainage structures Curbs, gutters, and sidewalk A-12 52 • Horizontal and vertical control for structures and portions of structures (bents, abutments, wingwalls, retaining walls, soundwalls, etc.) • Rough grade • Finish grade Monitor foundation embankments for settlement, if required Provide measurements to support earthwork quantity calculations Global Positioning Satellite (GPS) equipment shall be made available if required by the COMMISSION 2) Right of Way Lines Existing right of way will be established from Local Agency's record information and existing monumentation. • Right of way monumentation shall be renewed and restored in accordance with Section 10.4 of the Caltrans "Survey Manual" and the State of California Land Surveyor's Act. • Corner records and records of surveys shall be prepared and filed in accordance with the applicable standards and the State of California Land Surveyor's Act. · • Perpetuate existing monumentation. Includes restoring, renewing, referencing, and resetting existing boundary related monumentation. In addition, stake areas where construction disturbs the existing right of way, preparing and filing required maps and records. • Right of Way Surveys. Includes research and preparation filing of required maps and records. In addition, locate and set monuments for right or way and staking for right of way fences. • Final monumentation. Includes setting of centerline points of control upon completion of construction. 3) Special Design -Data Surveys Includes drainage, utility, and surveys required for special field studies. b. Materials Testing and Geotechnical Services OFFEROR will provide experienced personnel, equipment, and facilities to perform various construction materials sampling and testing. Laboratory and field Exhibit A A-13 53 materials testing will be used to ensure that structure and roadway construction work conforms to California State Department of Transportation (Caltrans) standards, specifications, and special provisions for material quality and workmanship. All field and laboratory testing shall be performed in accordance with California Test Methods. OFFEROR will be responsible for the accuracy and completeness of all test data compilation and results. c. Public Relations OFFEROR shall retain a public relations firm to implement a public outreach program for the project. OFFEROR shall coordinate public awareness for the project with COMMISSION in conjunction with the local agencies. The OFFEROR will manage all public awareness activities for this project. OFFEROR's public relations firm will be responsible for but not limited to the following outreach activities: • .Attend construction meetings ,>> • Dissemination of traffic advisories in both English and Spanish • Identify a!Jd list key governmental officials; agencies, schools, hospitals~iire and law enforcement officials i • Establish and maintain a public inquiry system,: • Respond to public inquiries/calls ' • Organize ground breaking and ribbon cutting ceremonies • Update project information bulletins at the completion of major project milestones • Develop and maintain project information on the Commission's website d. Permits OFFEROR shall review the project for permit compliance and coordinate with COMMISSION and the design engineer to ensure that necessary permits are obtained. OFFEROR shall assist COMMISSION in the coordination, timely processing and verification of approval for all permits. OFFEROR shall maintain permits and permit documentation on site. e. Site Survey OFFEROR will perform site surveys of private properties that exist within 400 feet of pile driving activities or 300 feet of the construction zone, whichever is greater. Each property will be documented with digital photography and/or digital video showing the existing pre-construction condition of improvements Exhibit A A-14 54 including concrete driveways, walkways, and patios, exterior structure condition, pool condition (if one exists), other exterior structures, interior walls and doorways. OFFEROR will contact each property owner and schedule an appointment to perform the property site survey. Written approval from the property owner will be received by OFFEROR prior to performing a site survey at any particular property. Documentation of each property will consist of the following: • Address of property • Property owner's name • Date Site Survey performed • Digital photographs and/or Digital video • A checklist with standard review items and specific site issues observed on the property • Written authorization to enter by property owner In the event a property owner denies access to a specific property, OFFEROR will make efforts to have the owner sign an authorization form denying access. Photos will be taken of the property from public right of way as much as possible. This Scope excludes the interior of structures at the Laurel Palms Apartment Complex 7. Cost and Schedule a. OFFEROR shall prepare and track the following: b. Exhibit A 1. Contract pay item quantities, materials-on-hand and progress payments 2. Extra work/Compensation adjustment payments 3. Contract change orders 4. Supplemental work items 5. Agency-furnished and/or State-furnished materials 6. Contingency balance 7. Project budget 8. Anticipated final cost OFFEROR shall review and monitor Contractor's schedule and inform COMMISSION of any significant changes or deviations in the schedule. A-15 55 c. OFFEROR shall provide and maintain a Project staffing plan of field office personnel. In cooperation with COMMISSION, the staffing plan shall be periodically updated to reflect Project progress and needs. 8. Contract Change Orders and Claims a. OFFEROR shall receive and evaluate requests for changes and/or substitutions by the Contractor. Contract Change Orders submitted to COMMISSION shall be accompanied by OFFEROR recommendations. Where applicable, OFFEROR shall convey proposed changes to design engineer, Caltrans Oversight Engineers or other project principals. If the requested changes are accepted, OFFEROR shall negotiate and prepare appropriate Contract Change Orders. b. OFFEROR shall attempt to avoid all unnecessary Contract Change Orders. When a Contract Change Order is necessary, OFFEROR shall consult with COMMISSION prior to its preparation. Unless directed otherwise by COMMISSION, the preferred method of _payment for Contract Change Orders should be as follows: · 1. Agreed Price 2. Adjustment in compensation to a bid item 3. Time and materials or Force Account c. OFFEROR shall attempt to identify all potential claims, track and monitor unresolved claims, and implement claims avoidance processes. d. OFFEROR shall assist COMMISSION, as requested, in the identification, resolution, and final disposition of claims filed by the Contractor or third parties against COMMISSION or the Project. 9. Safety In addition to the requirements specified elsewhere in this agreement, the following shall also apply: a. Exhibit A OFFEROR shall implement a comprehensive safety program including preparation of a project-specific Accident/Illness Prevention Plan and conduct regular tail-gate safety meetings for OFFEROR personnel. OFFEROR shall provide a monthly report of traffic and site safety incidents, accidents and issues to the COMMISSION as part of the Monthly Report. A-16 56 b. OFFEROR shall comply with State of California Construction Safety Orders and provisions of the Caltrans Construction Manual. c. OFFEROR shall provide appropriate safety training for all OFFEROR field personnel. d. OFFEROR shall provide all necessary safety equipment as required for OFFEROR personnel. 10. Project Close Out a. OFFEROR shall prepare a list of items to be completed and/or corrected by the Contractor for final completion of the Project. b. OFFEROR shall collect and furnish as-built information to the design engineer for preparation of as-built drawings including utility locations, electrical system element locations and system requirements, prestressing drawings and pile logs, as applicable. c. OFEERq~ shallf.eview and verify completeness of as-built drawings. d. OFFEROR sh~U conduct a final walk-through with COMMISSION, Caltrans, Local ~gencies, Contractors, and design engineers. e. OFFEROR shall prepare final construction reports including the Project Completion Report in the format and content requirements set forth by the COMMISSION. f. OFFEROR shall prepare and deliver to COMMISSION all project files in hard copy and/or electronic format. g. OFFEROR shall assist COMMISSION and Contractor in obtaining final release of all project permits. DELIVERABLES. NOTE: The OFFEROR shall maintain records as described below in the Construction Field Office. In addition, certain records shall be transmitted electronically as the work proceeds to the Commission using eRooms or lnfoWorks per the Commissions procedures. a. b. Exhibit A Inspector daily reports, extra work diaries, Landscape Architect, and Resident Engineers' daily diaries. Monthly Project Activity Summary Reports. A-17 57 c. Monthly Contractor progress payments, back-up documentation, and Contractor payment records. d. Contractor final payment documents, delivered to COMMISSION no later than ten (10) working days after acceptance by COMMISSION of the completed construction project. e. Project Completion Report. f. All project files, project reports,· correspondence, memoranda, shop drawings, project logs, schedule analyses and weekly working day statements, change order data, claims and claim reports, and Contractor payment records. g. Certified payrolls and fringe benefit statements for all employees, OFFEROR and Contractor, who are subject to the State and/or Federal prevailing wage rates. h. All material test results shall be provided in accordance with the applicable Standard Specifications and Special Provisions, and test methods. Failing tests shall be immediately reported to the Resident Engineer or Structures Representative. All test results shall be recorded on the appropriate forms. The test documents will be legible and show the identity of the tester where appropriate. A notebook containing all results will be kept. All test equipment shall be calibrated per California Test requirements and regularly verified. i. Unless otherwise specified in the survey request, the deliverables shall conform to the following: j. Exhibit A 1. Survey points, lines, and monuments shall be established, marked, identified, and referenced as required by survey request and requirements herein. 2. Survey notes, drawings, calculations, and other survey documents and information shall be completed as required by the survey request and the requirements herein. All original survey documents resulting from this contract, including original field notes, adjustment calculations, final results, and appropriate intermediate documents, shall be delivered to the Resident Engineer and shall become the property of COMMISSION. A copy of all survey documents furnished by COMMISSION shall be retained by OFFEROR for future reference. A-18 58 When the survey is performed with a total station survey system, the original field notes shall be a hard copy in a readable format of the data (observations) as originally collected and submitted by the survey party. The hard copy shall be signed by the Party Chief. If the Party Chief is not licensed, the person in "responsible charge" will be required to sign. k. Survey deliverables shall follow the format specified below: • Horizontal Control • Alpha numeric hard copy point listing with adjusted California Coordinate System northing and eastings and the appropriate descriptions. • Vertical Control • Alpha numeric hard copy benchmark listing with adjusted elevations compatible with the design datum. • Topography • Alpha numeric hard copy listing, hard copy drawing, and computer aided drawing and design (CADD) digital drawing. The CADD drawing shall be compatible with the systems utilized by Caltrans. Data collection method used to collect cross-section data and the coding (feature description) of terrain data for cross-sections shall conform to the survey request requirements. Deliverables shall depend on the data collection method as follows: • Conventional Cross-Sections (each cross-section): For each cross -section and alpha numeric listing, a hard copy drawing, and a computer formatted file compatible with the systems utilized by Caltrans. • Terrain Line Interpolation Cross -Section Data (each terrain line interpolation survey): Terrain line interpolation cross -sections shall include an alpha numeric listing, a hard copy plan view drawing of the terrain lines, and a computer input file. The computer input file shall be provided in a format compatible with the systems utilized by Caltrans. I. Data Collector Data If specified in the survey request, the raw data from the data collector shall be provided in a format conforming to the survey request requirements m. Other As specified in the survey request. Exhibit A A-19 59 Equipment and Materials to be provided by Offeror 1. OFFEROR will provide office space, telephones, desks, chairs, computers, and appropriate office equipment. One (1) office with a desk, chair, telephone, and computer with software and a laser printer (8% x 11 & 11 x 17) will be reserved for the COMMISSION. 2. OFFEROR shall provide all necessary equipment including software, materials, supplies, miscellaneous tools, and safety equipment required for its personnel to perform the services accurately, efficiently, and safely. Only those items listed in Attachment B, OFFEROR Cost Proposal, shall be reimbursed by COMMISSION. 3. OFFEROR personnel shall provide vehicles for field personnel suitable for the location and nature of the work involved. Vehicles shall be equipped with flashing yellow lights, either permanently or temporarily affixed. 4. OFFEROR personnel shall be provided with a mobile radio, cellular phone, or other means to assure full-time communication. If a radio system is used, OFFEROR shall provide a base stetion at the fi~rc:i office. '.;: ""' ·,',,,, '" 5. OFFEROR personnel shall be provided~1with all applfCable standard plans, specifications, and other standards as ap_propriate. · 6. For Materials Testing, OFFEROR and its staff shall be fully equipped at all times to perform the services required, including but not limited to the following: a. An on-site mobile laboratory or laboratory in close proximity to the project will be required. The type and location of the lab should be such that it can meet the needs of the project in an efficient, time effective manner. The laboratory shall be fully staffed, equipped, and supplied to conduct all required soils, materials, and concrete breaking tests in a timely manner. b. OFFEROR's personnel will be provided with radios, mobile phones, or other means to assure full-time communication. OFFEROR vehicles will have flashing lights, visible from the rear, with a driver control switch. Vans without side windows will not be used. COMMISSION furnished magnetic logos will be affixed to each side of the vehicle at all times the vehicle is being used for the work under this agreement. Exhibit A Each vehicle shall be fully contained with all necessary equipment and supplies necessary to perform the field sampling and tests required. A-20 60 ----------------------------------- c. Field personnel will be provided with all necessary safety equipment to permit work to be performed safely and efficiently within operating highway and construction zone environments. d. All equipment to be calibrated as per Section 3-10 and 3-11 of Caltrans' Quality Assurance Program Manual. 7. For construction surveying, OFFEROR and staff shall have adequate equipment and supplies to complete the required survey work. Equipment and supplies shall, include, but not be limited to: a. Survey vehicles Survey vehicles will be suitable to perform the required work in varying terrain and conditions encountered on the project Vehicles shall be fully equipped with all necessary tools, instruments, supplies, and safety equipment required to perform the work accurately, efficiently, and safely. Vehicles shall be equipped with a flashing yellow beacon light. b. Data Processing Systems Data processing systems shall include hardware and software to: • Performing survey and staking calculations from the design plans and specifications; • Reduce survey data collected with conventional and total station survey systems; • Perform network adjustments for horizontal and vertical control surveys; • Format survey data to be compatible with the Caltrans computer survey and data system. c. Drafting equipment and supplies. d. Digital calculators. e. Hand tools as appropriate for the requested survey work. f. Traffic cones (minimum 25). Traffic cones shall be 28 inches in height (minimum). g. h. Exhibit A Traffic control devices as required to perform the requested survey work. Traffic control devices include signs, sign bases, flags, and hand held signs. Leveling instruments and equipment: A-21 61 • Self-leveling level. Precision: standard deviation in one mile of double run leveling 0.005 feet or less. • Suitable level rods for the work to be performed. i. Distance measuring instruments and equipment • Electronic distance measurer {EDM). Precision: standard deviation 3 mm plus 3 PPM, or less; Range: Minimum one mile under average atmospheric conditions. • Prisms, sufficient to perform the required work. • Tapes; steel, cloth. J. Angle measuring instruments and equipment • Theodolite for non-control surveys; Precision: direct circle reading to three seconds, or equivalent, horizontal and vertical. • Targets as required to perform the work. k. When required for efficient survey operations, total station survey systems consisting of an electronic angle measuring instrument, EDM, and electronic data collector shall be provided. The angle measuring instruments and EDM shall conform to the requirements for the equipment previously listed. I. Radio or cellular communications equipment for communication between field office and field crews. m. Caltrans manuals, standards, forms, and other policies and procedures to be followed to perform the required work. Materials to be Furnished by Commission 1. COMMISSION will provide copies of all Project construction documents including plans, special provisions, reports, designer prepared resident engineer files, and contracts. 2. COMMISSION will provide copies of all previously secured permits and Project authorizations. 3. Magnetic COMMISSION logos to be affixed to OFFEROR vehicles. Standards Exhibit A A-22 62 All construction inspection, surveys, materials sampling and testing, and contract administration shall be in accordance with the Contract documents and current Caltrans Manuals including: 1. Construction Manual and its revisions 2. Bridge Construction Records and Procedures Manual 3. Quality Assurance Program Manual 4. Manual of Traffic Controls for Construction and Maintenance Work Zones 5. Caltrans Standard Specifications and Standard Plans 6. Caltrans Storm Water Pollution Prevention Plan (SWPPP) and Water Pollution Control Program (WPCP) Preparation Manual 7. Manual of Test (3 volumes) 8. Survey Manual 9. District 8 Standard St~king Procedures Manual Work not covered,by the manOaJs .shall be performed in accordance with accepted professional standards. Surveys performed by OFFEROR shall conform to the requirements of the Land Surveyor's Act. In accordance with the Land Surveyor's Act, "responsible charge" for the work shall reside with the Licensed Land Surveyor or a pre-January 1, 1982, Registered Professional Civil Engineer in the State of California. Unless otherwise specified in the survey request, control surveys shall conform to second order (modified) accuracy standards as specified in the Caltrans "Survey Manual". Additional standards for specific survey work may be included in the applicable request for survey. Such standards supplement the standards specified herein. If additional standards conflict with the standards specified herein, the "Survey Request's" standard shall govern. The Resident Engineer and COMMISSION will decide all questions which may arise as to the quality or acceptability of deliverables furnished and work performed for this agreement. Any OFFEROR employee who does not perform adequately will be replaced if directed by the COMMISSION Construction Manager. Exhibit A A-23 63 Availability and Work Hours The typical workday includes all hours worked by COMMISSION's construction Contractor. The construction Contractor's operations may be restricted to specific hours during the week, which will become the normal workday for OFFEROR's personnel. On days when work is not performed by the construction contractor, such as rainy or unsuitable weather days, OFFEROR services will not be provided unless authorized by the COMMISSION Construction Manager. Unless otherwise directed by COMMISSION, the normal work week will consist of 40 hours. From time to time, overtime may be required. However, overtime will be worked only when approved in writing by COMMISSION. Limitations to Authority OFFEROR does not have the authority to: 1. Authorize deviations from the contract documents. 2. Approve substitute materials or equipment; except as authorized in writing by COMMISSION. 3. Conduct or participate in tests or third party inspections; except as authorized in writing by COMMISSION. 4. Assume any of the responsibilities of the Contractors, Contractors' Superintendent, or subcontractors. 5. Exercise control over or be responsible for construction means, methods, techniques, sequences, procedures, or safety precautions. 6. Communicate directly with subcontractors or material suppliers without the prior consent of the Contractor. 7. Verbally authorize or approve change orders or extra work for the Project. 8. Offer or receive incentives, inducements, or other forms of enumeration to or from the Contractor to perform services or work outside the terms of any executed contracts for this Project. Third Party Relationships Exhibit A A-24 64 This Agreement is intended to provide unique services for a specific project. In the development of the Project, COMMISSION has worked closely with various agencies and others in the preparation of the construction documents and other Project related materials. COMMISSION, however, is solely responsible for and will be the sole point of contact for all contractual matters related to the Project. OFFEROR shall take direction only from COMMISSION and shall regularly inform only COMMISSION of Project progress, outstanding issues, and all Project related matters. During the course of the Project, OFFEROR may find occasion to meet with City or County representatives, the design engineer, Project Offerors, or other third parties who have assisted with the Project. These entities may, from time to time, offer suggestions and/or recommendations regarding the Project or elements of the Project. While COMMISSION enjoys a close relationship with and has considerable confidence in the capabilities of these other parties, OFFEROR shall not act on any suggestions, solicited or unsolicited, without obtaining specific direction from COMMISSION. All oral and written communication with outside agencies or Offerors related to the project shall be directed only to COMMISSION. Distribution of Project related communication and information shall be at the sole discretion of COMMISSION representatives. Construction Site Safety In addition to the requirements specified elsewhere in . this agreement, the following also will apply: 1. OFFEROR will conform to the safety provisions of the Caltrans Construction Manual. 2. OFFEROR's field personnel will wear white hard hats with proper suspension, orange vests with reflective tape, sleeved shirt, long pants, and leather boots with ankle support and rubber soles at all times while working in the field. 3. OFFEROR will provide appropriate safety training for all OFFEROR's personnel. 4. All safety equipment will be provided by OFFEROR. Basis for Survey and Monument Staking COMMISSION will designate the existing horizontal and vertical control monuments that are the basis of OFFEROR performed surveys. COMMISSION will provide the California Coordinate System values and/or elevation values for Exhibit A A-25 65 these monuments. OFFEROR shall adjust OFFEROR performed surveys to be the designated control monuments and the values. Monuments established by OFFEROR shall be marked by OFFEROR with furnished disks, plugs, tags. In addition, OFFEROR shall identify OFFEROR established monuments by tagging or stamping the monuments with the license or registration number of OFFEROR'S surveyor who is in "responsible charge" of the work. Personnel Qualifications and Responsibilities The quantity and qualifications of field personnel to be assigned will be determined by the scope of the Project and the degree of difficulty of required tasks to be performed. All personnel and personnel assignments shall be subject to approval by COMMISSION. Exhibit A A-26 66 Organization Chart 67 17336.01400\7381061.2 EXHIBIT "8" SCHEDULE OF SERVICES L__INSERT _j Exhibit "B" 68 Riverside County Transportation Commission CM Services, Materials Testing, and Construction Surveying for the Construction of the 1-215 Widening, Scott Road to Nuevo Road Project 14.0 '" ti: 8.0 6.0 4.0! 111 0.01-' • Constructablllty Review Pre-Construction Services. Bid & Award CM During Construction Project Closeoo()Ut and Punchllst Month# No.I Name 1 Joe Jenkins Pos1110n IFirm Protect Director Jacobs 2 Ga Tomasetti Pro eel Mana eriRes1dent En mee Jacobs 3 Aoshan Boralessa Roshan Boralessa 4 TBD Assistant REIOffice En 1neer Jacobs ARE.QE-Pro ert Surve Jacobs Utilities Coordmation Jacobs 5 Sam S1ms QualitvAssuranceManaqer 6 Alex Nairne Structures Re resentative 7 Wei-·en Lee Structures Representatwe 8 Kevin Smith Structures Ins ector 9 TBD Structures Ins ector 10 TBD Structures Ins ector 11 Tom Lamere Traffic Sale 12 Steve Kestle Electncai/Roadwa Inspection 13 Ro er Russell Roadwa Ins ect1on 14 TBD Aoadwa Inspection 15 Steve Goss Weldi['_g_~ction 16 Cliff Simental & Stall Construction Surve 1ng 17 M1ke Broadwater Storm Water 18 Steven Koch & Staff Matenals Tes!ln Jacobs Falcon Falcon JaCobs Jacobs ~ Jacobs Vall Cooper JaCobS Ja'CCibS Jacobs Psomas Vall Cooper MTGL 19 Che I Donahue & Staff Pubhc Relations Arellano Che I Donahue & Staff Public Relations· Pro er Surve Arellano 20 Clementine Yu Office Eng1neer -!-Jacobs 21 Construction Support 22 Gil Flores 23 Btfl Beana 24 Ri!Y_Crane 251Karen Meadows Lands~ Architect Safety Manaoer ScheduleriProleCI Control Labor Compliance Sub Total Labor Hours Equiv. FTE Coyote N1ghts Jacobs "JaCOb'S Meadows Ju~•12 Jut-!2 173 Jun-12 --4 173 80 4o 80 80 457 2.6 173 Jul-12 173 80 4o 80 80 457 2.6: •73 173 A..!::!9.:.!ll Sec-12 4 173 I 173 80 ~ 24124 281 : 1.61 34 395 2.3 173 Oct-12 --; i73 160 8o 24 34 475 2.7 0 0 ;:! 19.,._. 173 Nov-12 --4 173 8o 8o 8o 24 34 475 2.7 173 Dec-12 --4 173 8o 8o 8o 24 160 34 8o 715 4.1 'Moblllte 173 Jan-13 --4 173 m 80 24 173 m 160 80 160 173 8 8o 40 1:so:n 8.7 i 173 Feb-13 --4 173 m 80 24 173 m 173 173 80 86 173 40 16 1,551 i sol 173 Mar-13 --; 173 rn 80 24 173 m m 173 173 80 40 173 24 16 1,662 9.6 69 1J. 173 ~ 4 i73 m 80 24 173 m m m 173 173 80 40 173 24 16 1.836 10.6 12 173 M~ 4 173 m 80 24 i73 m m m m m m m 80 12 40 173 24 16 2,194 12.7 13 173 Jun-13 4 173 m 24 173 m m m m m m m 12 40 173 8 24 16 14 173 Jul-13 --4 173 m 24 173 m m m m m m m m 12 40 i73 8 24 16 2.034 1 2.208 i 11.7! 12.7 I 15 16 173 173 Aug-131 Sep-13 4 4 173 173 173 173 24 I 24 173 173 12 I 12 40 I 40 173 I 173 24 I 24 16 I 16 2,208 I 2.208 12.7 12.7 Labor Loading for CM Services Proiect Time Line ~~!.§. I " 20 I 21 I 22 I 23 I 24 I 25 I 26 I 27 I ',If,· 173 Oct-13 173 m 24 173 m m m m m m m m 12 40 173 24 16 2.208 12.7 173 Nov-13 --4 173 173 24 173 m m ill 173 m m m m 12 40 173 24 16 2.208 12J 173 Dec-13 4 i73 m 24 173 m m m m m m m m 12 40 173 24 16 173 Jan-14 4 i73 m 24 i73 m m m m m m m m 12 40 173 8 i4 16 2,208 ' 2,208 12.7 1 12.7 173 Feb-14 --4 173 m 24 173 173 m m m m m m m 12 40 173 8 i4 16 2.208 12.7 173 Mar-14 --4 173 m 24 i73 m m m m m m m m 12 40 173 8 24 16 2.208 12.7 173 ~ 4 i73 m 24 173 m m m m m m m m So 12 40 173 24 16 2,288 13.2 173 Mav-14 4 i73 m 24 173 m m m m m m m m So 12 40 173 8 24 16 2 288 13.2: 173 Jun-14 --4 173 m 24 173 m m m m m m m m 8o 12 40 173 24 16 2.288 13.2 173 Jul-14 173 m 24 173 m m m m m m m m 12 40 173 40 8 24 16 2,248 13.0 173 Auq-14 173 m 24 173 m m m 173 m m m 12 40 173 8 24 16 2.034 11.7 Riverside County Transportation Commission CM Services, Materials Testing, and Construction Surveying for the Construction of the 1-215 Widening, Scott Road to Nuevo Road Project Constructability Review Pre-Construction Services· Bid & Award CM During Construction Project Close-out and Punchlist No.IName 1IJoeJenkins 21Gary Tomasetti 8 Kevin Smith 9 TBD 10 TBO 111Tom Lamere 15 SteveGoss 16 Clitt Simental & Staff 17 Mtke Broadwater 18 Steven Koch & Staff 191Chervt Donahue & Staff Cheryl Donahue & Staff Position Pro1ect 01rector Pro1ect Manager/Res1dent Ena1nee .Ass1s!ant REIQfflce Engineer ARE/DE· Property Survey_ Utilities Coordination Quality Assurance Manager Structures Representative Structures RepresentatiVe Structures Inspector Structures Inspector Structures ln_spector TraffiC Sa~ Electncai!Roadway Inspection Roadway lnsoecllon Roadway Inspection Weldinqlnspection Construction Survevin Storm Water Materials Test1ng Public Retatmns Public Relations· Property Surve 20 Clementirie Yu JQ.tllce Engllieer 21 Construction Support Landscape Architect Safely Manager Scheduler/Project Control LaborCo!!!Q!!ance ·sub-Total Labor Hours Equiv. FTE 173 Seo-14 173 173 24 173 m 173 173 173 173 173 173 12 40 173 8 24 16 2,034 11.7 173 .Qs!:1! 4 m 173 24 'i73 'i73 173 m 173 173 m m 12 40 173 8 24 16 2,034 11.7 173 Nov-14 --4 m 173 24 m 173 173 173 173 m 173 12 40 173 24 16 1.861 10.7 113 Dec-14 --4 m 173 24 m 173 173 173 m 12 40 173 40 8 24 16 173 Jan-IS 4 173 173 24 173 80 173 m 12 40 173 40 8 24 16 173 Feb-15 --4 m 173 24 m 173 12 40 173 80 8 24 16 1.554 ' 1.288 1,075 9.0 7.4 i 6.2 173 Mar-15 --. m 173 24 173 12 40 173 80 8 24 16 901 5.2 173 Aor-15 4 m 173 24 173 12 40 173 80 8 24 16 901 5.2 173 ,;,c> 173 173 I 173 24 173 12 40 173 40 8 24 16 861 5.0 24 173 12 160 173 24 16 941 I 5.4 I 173 Jul-15 --4 m 173 24 173 12 160 173 8 24 16 941 5.4 70 173 173 tso I tso 24 160 12 160 160 16 864 5.0 24 160 16 532 3.1 173 OcHS --4 160 160 24 160 512 3.0 '173 Nov-15 160 80 24 160 428' 2.5' 173 Dec-15 80 80 24 80 268 1.5 173 Jan-16 Sub-Total 164 80 7.383 ao I 6.252 24 188 1.1 400 960 ~ 4.666 3.986 3,813 3.293 2.600 4.226 3,639 ~ ~ 320 ~ 656 6,100 1,966 136 6,172 400 248 848 552 76.539 17336.01400\7381061.2 EXHIBIT "C" L__INSERT _j Exhibit "C" 71 Riverside County Transportation Commission CM Services, Materials Testing, and Construction Surveying for the Construction of the 1-215 Widening, Scott Road to Nuevo Road Project Cost Proposal Summary by Firm ':: ';Eirm Labor Cost '., ODCs::::i'., .• .··. Totai,C~i,l#li.fil Jacobs $ 6,275,015 $ 819,545 $ 7,094,560 MTGL $ 518,500 $ 404,391 $ 922,891 Falcon $ 1,661,047 $ 68,750 $ 1,729,797 Vali Cooper & Associates $ 516,822 $ 34,375 $ 551,197 Psomas $ 1,099,669 $ 3,000 $ 1 '102,669 Coyote Nights $ 72,141 $ 2,750 $ 74,891 Arellano Associates $ 244,235 $ 38,185 $ 282,420 Meadows Consulting $ 48,908 $ -$ 48,908 Grand Total $ 10,436,338 $ 1,370,996 $ 11,807,334 72 JACOBS EXHIBIT "C" COMPENSATION AND PAYMENT For the satisfactory performance and completion of the Services under this Agreement, the Commission will pay the Consultant compensation as set forth herein. 1) ELEMENTS OF COMPENSATION. Compensation for the Services will be comprised of the following elements: 1.1 Direct Labor Costs; 1.2 Fixed Fee; and 1.3 Additional Direct Costs. a) DIRECT LABOR COSTS. Direct Labor costs shall be paid in an amount equal to the product of the Direct Salary Costs and the Multiplier which are defined as follows: i) DIRECT SALARY COSTS Direct Salary Costs are the base salaries and wages actually paid to the Consultant's personnel directly engaged in performance of the Services under the Agreement. (The range of hourly rates paid to the Consultant's personnel appears in Section 2 below.) ii) MULTIPLIER The Multiplier to be applied to the Direct Salary Costs to determine the Direct Labor Costs is 1.9908 , and is the sum of the following components: ( 1 ) (2) Direct Salary Costs Payroll Additives 1.0 0.2656 The decimal ratio of Payroll Additives to Direct Salary Costs. Payroll Additives include all employee benefits, allowances for vacation, sick leave, and holidays, and company portion of employee insurance and social and retirement benefits, all federal and state payroll taxes, premiums for insurance 73 1.1.2.3 profit) which are measured by payroll costs, and other contributions and benefits imposed by applicable laws and regulations. (3) Overhead Costs 0.7252 The decimal ratio of allowable Overhead Costs to the Consultant firm's total direct salary costs. Allowable Overhead Costs include general, administrative and overhead costs of maintaining and operating established offices, and consistent with established firm policies, and as defined in the Federal Acquisitions Regulations, Part 31.2. (4) 10% Total Multiplier 2.18988 (sum of 1.1.2.1, 1.1.2.2, and multiplied by the percentage of b) FIXED FEE. i) The Fixed Fee is the Profit as determined in Section 1.1.2.4. The Maximum Fixed Fee under this Agreement is 1 0% ($_..!5=6=6.1...!1=07!___ __ _ C) ADDITIONAL DIRECT COSTS. Additional Direct Costs directly identifiable to the performance of the services of this Agreement shall be reimbursed at the rates below, or at actual invoiced cost. Rates for identified Additional Direct Costs are as follows: Per Diem Car mileage Rental Car Travel Photocopies (Black & White) Photocopies (Color) Photographs/ other reprographic Services 74 REIMBURSEMENT RATE Actual Cost 0.555 or current IRS rate Actual Cost Actual Cost $0.02 /copy $0.10 /copy Actual Cost Postage/Shipping Courier Service Other Rentals, supplies, purchases Lease Vehicles Cell Phones Office Rental and Maintenance Equipment and Supplies Software/Hardware Actual Cost Actual Cost Actual Cost $1 ,300.00/Mo. $75.00/Mo Actual Cost Actual Cost Actual Cost Travel by air and travel in excess of 100 miles from the Consultant's office nearest to the Commission's office must have the Commission's prior written approval to be reimbursed under this Agreement. 2) DIRECT SALARY RATES Direct Salary Rates, which are the range of hourly rates to be used in determining Direct Salary Costs in Section 1.1.1 above, are given below and are subject to the following: a) Direct Salary Rates shall be applicable to both straight time and overtime work, unless payment of a premium for overtime work is required by law, regulation or craft agreement, or is otherwise specified in this Agreement. In such event, the premium portion of Direct Salary Costs will not be subject to the Multiplier defined in Paragraph 1.1.2 above. b) Direct Salary Rates shown herein are in effect for one year following the effective date of the Agreement. Thereafter, they may be adjusted annually to reflect the Consultant's adjustments to individual compensation. The Consultant shall notify the Commission in writing prior to a change in the range of rates included herein, and prior to each subsequent change. POSITION OR CLASSIFICATION Principal Director Project Manager/RE Utilities Coordinator Quality Assurance Structures Representative Structures Inspector 75 RANGE OF HOURLY RATES $90.00-$125.00/hour $80.00-$115.00/hour $70.00-$1 00.00/hour $45.00 -$ 75.00/hour $60.00 -$ 90.00/hour $55.00 -$ 90.00/hour $45.00 -$ 80.00/hour Traffic Safety Roadway Inspector Welding Inspector Office Engineer Safety Manager Project Controls $45.00-$ 80.00/hour $45.00 -$ 80.00/hour $45.00 -$ 80.00/hour $30.00 -$ 55.00/hour $45.00 -$ 80.00/hour $45.00-$ 80.00/hour c) The above rates are for the Consultant only. All rates for subconsultants to the Consultant will be in accordance with the Consultant's cost proposal. 76 17336.01400\7381061.2 EXHIBIT "C" Part 2 List of Approved Subconsultant and Rates Exhibit "C" Part 2 77 EXHIBIT "D" CERTIFICATE OF COMMISSION I HEREBY CERTIFY that I am the of the RIVERSIDE COUNTY TRANSPORTATION COMMISSION, and that the consulting firm of or its representative has not been required (except as herein expressly stated), directly or indirectly, as an express or implied condition in connection with obtaining or carrying out this Agreement to: (a) employ, retain, agree to employ or retain, any firm or person; or (b) pay or agree to pay, to any firm, person or organization, any fee, contribution, donation, or consideration of any kind. acknowledge that this Certificate is to be made available to the California Department of Transportation (Caltrans) in connection with this Agreement involving participation of federal-aid Highway funds, and is subject to applicable State and Federal laws, both .. criminal and civiL By: Signature Name Title Date 17336.01400\7381061.2 Exhibit "D" 78 DRAFT ATTACHMENT 2 08-RIV-215-R 14.20/28.50 EA: OF162 Federal Funds District Agreement 08-1533 Project Number 0800000116 RCTC Agreement 12-31-078-00 CONSTRUCTION COOPERATIVE AGREEMENT This agreement, effective on , is between the State of California, acting through its Department of Transportation, referred to as CAL TRANS, and: Riverside County Transportation Commission, a public entity referred to as RCTC. For the purpose of this agreement, the term PARTNERS collectively refers to CAL TRANS and RCTC (all signatory parties to this agreement). The term PARTNER refers to any one ofthose signatory parties individually. RECITALS 1. California Streets and Highways Code sections 114 and 130 authorize PARTNERS to enter into a cooperative agreement for performance of work within the State Highway System (SHS) right of way. 2. For the purpose of this agreement, completion of the construction on Interstate 215 (I- 215) in Southwest Riverside County, from Scott Road to Nuevo Road IC, of a mixed flow lane in each direction and the reconstruction of auxiliary lanes between D Street and Nuevo Road will be referred to as PROJECT. All responsibilities assigned in this agreement to complete the construction of the PROJECT will be referred to as OBLIGATIONS. This agreement outlines the terms and conditions of cooperation between PARTNERS to complete OBLIGATION for PROJECT. 3. This agreement is separate from and does not modify or replace any other cooperative agreement or memorandum ofunderstanding between PARTNERS regarding PROJECT. 4. Prior to this agreement, RCTC developed the Project Initiation Document; RCTC developed the Project Report (Cooperative Agreement No. 1371 ); RCTC is developing the Plans, Specifications and Estimate (Cooperative Agreement No. 1371); and RCTC is developing the Right of Way Certification (Cooperative Agreement No. 1371 ). 5. CAL TRANS signed and approved the Negative Declaration pursuant to CEQA and the Findings ofNo Significant Impact pursuant to NEPA on April 12, 2011. 6. The estimated date for OBLIGATION COMPLETION is December 31, 2017. PACT Version 10.1.2011_02_18 1 of 22 79 District Agreement 08-1533 RCTC Agreement 12-31-078-00 DRAFT 7. In this agreement capitalized words represent defined terms and acronyms. The Definitions section contains a complete definition for each capitalized term. 8. From this point forward, PARTNERS define in this agreement the terms and conditions under which they will accomplish OBLIGATIONS. RESPONSIBILITIES 9. RCTC is SPONSOR for 100% ofPROJECT. 10. CAL TRANS will provide IQA for the portions of WORK within existing and proposed SHS right of way. CAL TRANS retains the right to reject noncompliant WORK, protect public safety, preserve property rights, and ensure that all WORK is in the best interest of the SHS. 11. RCTC may provide IQA for the portions of WORK outside existing and proposed SHS right of way. 12. RCTC is the only FUNDING PARTNER for this agreement. RCTC's funding commitment is defined in the FUNDING SUMMARY. 13. CAL TRANS is the CEQA lead agency for PROJECT. 14. CAL TRANS is the NEPA lead agency for PROJECT. 15. RCTC is IMPLEMENTING AGENCY for CONSTRUCTION. SCOPE Scope: General 16. PARTNERS will perform all OBLIGATIONS in accordance with federal and California laws, regulations, and standards; FHW A STANDARDS; and CAL TRANS STANDARDS. 17. IMPLEMENTING AGENCY for a PROJECT COMPONENT will provide a Quality Management Plan (QMP) for that component as part of the PROJECT MANAGEMENT PLAN. The District Construction Division, with input from Structure Construction must approve the Quality Management Plan (QMP) before the encroachment permit for construction is issued. PACT Version 10.1.2011_02_18 2 of22 80 DRAFT District Agreement 08-1533 RCTC Agreement 12-31-078-00 18. Any PARTNER may, at its own expense, have representatives observe any OBLIGATIONS performed by another PARTNER. Observation does not constitute authority over those OBLIGATIONS. 19. Each PARTNER will ensure that all of its personnel participating in OBLIGATIONS are appropriately qualified, and if necessary, licensed to perform the tasks assigned to them. 20. IMPLEMENTING AGENCY shall retain consultants and shall invite CAL TRANS to participate in the selection of retained consultants that participate in OBLIGATIONS. At least one representative from the Construction Division of CAL TRANS shall be invited to participate in the selection team process. A construction management firm shall not be selected without the majority approval of the selection team. 21. If WORK is done under contract (not completed by a PARTNER's own employees) and is governed by the California Labor Code's definition of"public works" (section 1720(a)(a)), that PARTNER will conform to sections 1720-1815 ofthe California Labor Code and all applicable regulations and coverage determinations issued by the Director of Industrial Relations. 22. IMPLEMENTING AGENCY for each PROJECT COMPONENT included in this agreement will be available to help resolve problems generated by that component for the entire duration of PROJECT. 23. CAL TRANS will issue, upon proper application, the encroachment permits required for WORK within SHS right of way. Contractors and/or agents, and utility owners will not perform WORK without an encroachment permit issued in their name. 24. If any PARTNER discovers unanticipated cultural, archaeological, paleontological, or other protected resources during WORK, all WORK in that area will stop and that PARTNER will notify all PARTNERS within 24 hours of discovery. WORK may only resume after a qualified professional has evaluated the nature and significance of the discovery and a plan is approved for its removal or protection. 25. PARTNERS will hold all administrative drafts and administrative final reports, studies, materials, and documentation relied upon, produced, created, or utilized for PROJECT in confidence to the extent permitted by law. Where applicable, the provisions of California Government Code section 6254.5(e) will govern the disclosure of such documents in the event that PARTNERS share said documents with each other. PARTNERS will not distribute, release, or share said documents with anyone other than employees, agents, and consultants who require access to complete PROJECT without the written consent of the PARTNER authorized to release them, unless required or authorized to do so by law. PACT Version 10.1.2011_02_18 3 of22 81 District Agreement 08-1533 RCTC Agreement 12-31-078-00 DRAFT 26. If any PARTNER receives a public records request, pertaining to OBLIGATIONS, that PARTNER will notify PARTNERS within five (5) working days of receipt and make PARTNERS aware of any disclosed public records. PARTNERS will consult with each other prior to the release of any public documents related to the PROJECT. 27. lfHM-1 or HM-2 is found during a PROJECT COMPONENT, IMPLEMENTING AGENCY for that PROJECT COMPONENT will immediately notify PARTNERS. 28. CAL TRANS, independent of PROJECT, is responsible for any HM-1 found within the existing SHS right of way. CAL TRANS will undertake or cause to be undertaken HM MANAGEMENT ACTIVITIES related to HM-1 with minimum impact to PROJECT schedule. 29. If HM-1 is found within PROJECT limits and outside the existing SHS right of way, responsibility for such HM-1 rests with the owner(s) of the parcel(s) on which the HM-1 is found. RCTC, in concert with the local agency having land use jurisdiction over the parcel(s), will ensure that HM MANAGEMENT ACTIVITIES related to HM-1 are undertaken with minimum impact to PROJECT schedule. 30. IfHM-2 is found within PROJECT limits, the public agency responsible for the advertisement, award, and administration (AAA) of the PROJECT construction contract will be responsible for HM MANAGEMENT ACTIVITIES related to HM-2. 31. CAL TRANS' acquisition or acceptance of title to any property on which any HM-1 or HM-2 is found will proceed in accordance with CAL TRANS' policy on such acquisition. 32. PARTNERS will comply with all ofthe commitments and conditions set forth in the environmental documentation, environmental permits, approvals, and applicable agreements as those commitments and conditions apply to each PARTNER's responsibilities in this agreement. 33. IMPLEMENTING AGENCY for each PROJECT COMPONENT will furnish PARTNERS with written monthly progress reports during the implementation of OBLIGATIONS in that component. 34. Upon OBLIGATION COMPLETION, ownership or title to all materials and equipment constructed or installed for the operations and/or maintenance of the SHS within SHS right ofway as part of WORK become the property of CAL TRANS. CAL TRANS will not accept ownership or title to any materials or equipment constructed or installed outside SHS right of way. 35. IMPLEMENTING AGENCY for a PROJECT COMPONENT will accept, reject, compromise, settle, or litigate claims of any non-agreement parties hired to do WORK in that component. PACT Version 10.1.2011_02_18 4 of22 82 District Agreement 08-1533 RCTC Agreement 12-31-078-00 DRAFT 36. PARTNERS will confer on any claim that may affect OBLIGATIONS or PARTNERS' liability or responsibility under this agreement in order to retain resolution possibilities for potential future claims. No PARTNER will prejudice the rights of another PARTNER until after PARTNERS confer on claim. 37. PARTNERS will maintain, and will ensure that any party hired by PARTNERS to participate in OBLIGATIONS will maintain, a financial management system that conforms to Generally Accepted Accounting Principles (GAAP), and that can properly accumulate and segregate incurred PROJECT costs, and provide billing and payment support. 38. PARTNERS will comply with the appropriate federal cost principles and administrative requirements outlined in the Applicable Cost Principles and Administrative Requirements table below. These principles and requirements apply to all funding types included in this agreement. 39. PARTNERS will ensure that any party hired to participate in OBLIGATIONS will comply with the appropriate federal cost principles and administrative requirements outlined in the Applicable Cost Principles and Administrative Requirements table below. Applicable Cost Principles and Administration Requirements The federal cost principles and administrative requirements associated with each organization type apply to that organization. Organization Type Cost Principles Administrative Requirements Federal Governments 2 CFR Part 225 OMB A-102 State and Local Government 2 CFR, Part 225 49 CFR, Part 18 Educational Institutions 2 CFR, Part 220 2 CFR, Part 215 Non-Profit Organizations 2 CFR, Part 230 2 CFR, Part 215 For Profit Organizations 48 CFR, Chapter 1, 49 CFR, Part 18 Part 31 CFR (Code of Federal Regulations) OMB (Office of Management and Budget) Related URLs: • Various OMB Circular: http://www.whitehouse.gov/omb/grants_circulars • Code of Federal Regulations: http:/ /www.gpoaccess.gov /CFR 40. PARTNERS will maintain and make available to each other all OBLIGATIONS-related documents, including financial data, during the term of this agreement. 41. PARTNERS will retain all OBLIGATIONS-related records for three (3) years after the final voucher. 42. PARTNERS have the right to audit each other in accordance with generally accepted governmental audit standards. PACT Version 1 0.1.2011_02_18 5 of22 83 DRAFT District Agreement 08-1533 RCTC Agreement 12-31-078-00 CAL TRANS, the state auditor, FHW A, and RCTC will have access to all OBLIGATIONS-related records of each PARTNER, and any party hired by a PARTNER to participate in OBLIGATIONS, for audit, examination, excerpt, or transcription. The examination of any records will take place in the offices and locations where said records are generated and/or stored and will be accomplished during reasonable hours of operation. The auditing PARTNER will be permitted to make copies of any OBLIGATIONS-related records needed for the audit. The audited PARTNER will review the draft audit, findings, and recommendations, and provide written comments within 30 calendar days of receipt. Upon completion ofthe final audit, PARTNERS have 30 days to refund or invoice as necessary in order to satisfy the obligation of the audit. Any audit dispute not resolved by PARTNERS is subject to dispute resolution. Any costs arising out of the dispute resolution process will be paid within 30 calendar days of the final audit or dispute resolution findings. 43. PARTNERS will undergo an annual audit in accordance with the Single Audit Act of OMB Circular A-133. 44. Any PARTNER that hires another party to participate in OBLIGATIONS will conduct a pre-award audit of that party in accordance with the Local Assistance Procedures Manual. 45. PARTNERS will not incur costs beyond the funding commitments in this agreement. If IMPLEMENTING AGENCY anticipates that funding for WORK will be insufficient to complete WORK, IMPLEMENTING AGENCY will promptly notify SPONSOR. IMPLEMENTING AGENCY has no obligation to perform WORK if funds to perform WORK are unavailable. 46. If WORK stops for any reason, IMPLEMENTING AGENCY will place all facilities impacted by WORK in a safe and operable condition acceptable to CAL TRANS. 47. If WORK stops for any reason, each PARTNER will continue to implement all of its applicable commitments and conditions included in the PROJECT environmental documentation, permits, agreements, or approvals that are in effect at the time that WORK stops, as they apply to each PARTNER's responsibilities in this agreement, in order to keep PROJECT in environmental compliance until WORK resumes. PACT Version 10.1.2011_02_18 6 of 22 84 District Agreement 08-1533 RCTC Agreement 12-31-078-00 DRAFT 48. Each PARTNER accepts responsibility to complete the activities that it selected on the SCOPE SUMMARY. Activities marked with "N/A" on the SCOPE SUMMARY are not included in the scope of this agreement. 49. Contract administration procedures shall conform to CAL TRANS' Construction Manual, Local Assistance Procedures Manual (if Federal funds are used), and the PROJECT encroachment permits. 50. If the Resident Engineer is not also a registered Landscape Architect, RCTC will furnish, at RCTC expense and subject to approval of CAL TRANS Landscape Architecture, a registered Landscape Architect to perform work related to architecture treatment and landscaping and to perform the function of an Assistant Resident Engineer/Inspector who is responsible for both daily on-site inspection and final decisions including, but not limited to, any highway planting and the irrigation systems that comprise a portion of the PROJECT work, consistent with any applicable measures in the environmental commitments record. Final decisions shall continue to be subject to the satisfaction and approval ofCALTRANS. 51. Within one hundred eighty (180) days following the completion and acceptance of the PROJECT construction contract, to furnish CAL TRANS with a complete set of"As- Built" plans (hard copy and electronic formats) in accordance with CAL TRANS' then current CADD Users Manual, Plans Preparation Manual, and CAL TRANS practice. The submittal must also include all CAL TRANS requested contract records, including survey documents and Records of Surveys (to include monument perpetuation per the Land Surveyor Act, section 8771·, including but not limited to preconstruction monumentation documents and a post construction Record of Survey that have been filed with the County Surveyor's Office). RCTC shall also submit corrected full-sized hardcopy structure plans. Scope: Environmental Permits, Approvals and Agreements 52. Each PARTNER identified in the Environmental Permits table below accepts the responsibility to complete the assigned activities. Environmental Permits Permit Coordinate Prepare Obtain Implement Renew 404 USACOE RCTC RCTC RCTC RCTC RCTC 401 RWQCB RCTC RCTC RCTC RCTC RCTC NPDES RCTC RCTC RCTC RCTC RCTC SWRCB 1602 DFG RCTC RCTC RCTC RCTC RCTC PACT Version 10.1.2011_02_18 85 Amend RCTC RCTC RCTC RCTC 7 of22 . DRAFT Scope: CONSTRUCTION District Agreement 08-1533 RCTC Agreement 12-31-078-00 53. RCTC will advertise, open bids, award, approve, and administer the construction contract in accordance with the California Public Contract Code and the California Labor Code. RCTC will not advertise the construction contract until CAL TRANS completes or accepts the final plans, specifications, and estimate package; CAL TRANS approves the Right of Way Certification; and SPONSOR verifies full funding of CONSTRUCTION SUPPORT and CONSTRUCTION CAPlT AL. By accepting responsibility to advertise and award the construction contract, RCTC also accepts responsibility to administer the construction contract. PARTNERS agree that RCTC is designated as the Legally Responsible Person and the Approved Signatory Authority pursuant to the Construction General Permit, State Water Resources Control Board (SWRCB) Order Number 2009-0009-DWQ, as defined in Appendix 5, Glossary, and assumes all roles and responsibilities assigned to the Legally Responsible Person and the Approved Signatory Authority as mandated by the Construction General Permit. 54. RCTC will provide a RESIDENT ENGINEER, licensed to practice Civil Engineering in the State of California, and construction support staffthat are independent ofthe design engineering company and construction contractor. 55. IMPLEMENTING AGENCY will implement changes to the construction contract through contract change orders (CCOs). PARTNERS will review and concur on all CCOs over $100,000. CAL TRANS must approve all CCOs affecting public safety or the preservation of property, all design and specification changes, and all major changes as defined in the CAL TRANS Construction Manual prior to implementing the CCO. 56. IMPLEMENTING AGENCY will use a CAL TRANS-approved construction contract claims process, will administer all claims through said process, and will be available to provide advice and technical input in any claims process. 57. If the lowest responsible construction contract bid is greater than the funding commitment to CONSTRUCTION CAPITAL, all PARTNERS must be involved in determining how to proceed. lfPARTNERS do not agree in writing on a course of action within 15 working days, the IMPLEMENTING AGENCY shall not award the construction contract. PACT Version 10.1.2011_02_18 8 of22 86 DRAFT District Agreement 08-1533 RCTC Agreement 12-31-078-00 58. RCTC will require the construction contractor to furnish payment and performance bonds naming RCTC as obligee, and CAL TRANS as additional obligee, and to carry liability insurance in accordance with CAL TRANS specifications. 59. RCTC will submit a written request to CAL TRANS for any SFM identified in the PROJECT plans, specifications, and estimate a minimum of 45 days prior to the bid advertisement date for PROJECT construction contract. RCTC will submit a written request to CAL TRANS for any additional SFM deemed necessary during PROJECT construction. 60. CAL TRANS will make SFM available at a CAL TRANS-designated location after RCTC requests SFM and pays CAL TRANS' invoice for estimated SFM costs. 61. CAL TRANS will issue the parent permit to RCTC citing completion of a Quality Management Plan (QMP) as a condition of issuing the double permit. RCTC will prepare a QMP which will include a description of how source inspection will be performed and will submit the QMP to CAL TRANS for review and approval by the State Materials Engineer. CAL TRANS will issue the double permit to the contractor after the proper permit application is submitted and all conditions stipulated by the parent permit are met. RCTC will provide, or cause to provide, source inspection services. 62. As IMPLEMENTING AGENCY for CONSTRUCTION, RCTC is responsible for maintenance within PROJECT limits as part of the construction contract. 63. PARTNERS will execute a separate maintenance agreement prior to OBLIGATION COMPLETION. COST Cost: General 64. The cost of any awards, judgments, or settlements generated by OBLIGATIONS is an OBLIGATIONS COST. 65. CAL TRANS, independent of PROJECT, will pay, or cause to be paid, all costs for HM MANAGEMENT ACTIVITIES related to HM-1 found within the existing SHS right of way. PACT Version 10.1.2011_02_18 9 of22 87 District Agreement 08-1533 RCTC Agreement 12-31-078-00 DRAFT 66. Independent of PROJECT,, all costs for HM MANAGEMENT ACTIVITIES related to HM-1 found within PROJECT limits and outside ofthe existing SHS right ofway will be the responsibility of the owner(s) of the parcel(s) where the HM-1 is located. 67. HM MANAGEMENT ACTIVITIES costs related to HM-2 are CONSTRUCTION SUPPORT and CONSTRUCTION CAPITAL costs. 68. The cost to comply with and implement the commitments set forth in the environmental documentation is an OBLIGATIONS COST. 69. The cost to ensure that PROJECT remains in environmental compliance is an OBLIGATIONS COST. 70. The cost of any legal challenges to the CEQA or NEPA environmental process or documentation is an OBLIGATIONS COST. 71. Independent ofOBLIGATIONS COST, CALTRANS will fund the cost of its own IQA for WORK done within existing or proposed future SHS right of way. 72. Independent ofOBLIGATIONS COST, RCTC will fund the cost ofits own IQA for WORK done outside existing or proposed future SHS right of way. 73. CAL TRANS will provide encroachment permits to PARTNERS, their contractors, consultants and agents, at no cost. 74. Fines, interest, or penalties levied against a PARTNER will be paid, independent of OBLIGATIONS COST, by the PARTNER whose actions or lack of action caused the levy. 75. CAL TRANS will administer all federal subvention funds identified on the FUNDING SUMMARY. 76. Travel, per diem, and third-party contract reimbursements are an OBLIGATIONS COST only after those hired by PARTNERS to participate in OBLIGATIONS incur and pay those costs. Payments for travel and per diem will not exceed the rates paid rank and file state employees under current California Department of Personnel Administration (DPA) rules current at the effective date of this agreement. If RCTC invoices for rates in excess of DPA rates, RCTC will fund the cost difference and reimburse the appropriate funding source for any overpayment. 77. The cost of any engineering support performed by CAL TRANS includes all direct and applicable indirect costs. CAL TRANS calculates indirect costs based solely on the type of funds used to pay support costs. State and federal funds are subject to the current PACT Version 10.1.2011_02_18 10 of 22 88 DRAFT District Agreement 08-1533 RCTC Agreement 12-31-078-00 Program Functional Rate. Local funds are subject to the current Program Functional Rate and the current Administration Rate. The Program Functional Rate and the Administration Rate are adjusted periodically. 78. Any OBLIGATION COST for which any PARTNER received payment or credit that is determined to be unallowable by a subsequent state or federal audit are subject to repayment ofthe appropriate funding source by that PARTNER within thirty (30) working days of demand or within such other period of time as mutually agreed by PARTNERS. 79. The cost to place PROJECT right of way in a safe and operable condition and meet all environmental commitments is an OBLIGATIONS cost. 80. Because IMPLEMENTING AGENCY is responsible for managing the scope, cost, and schedule of a project component, if there are insufficient funds available in this agreement to place the right of way in a safe and operable condition, the appropriate IMPLEMENTING AGENCY accepts responsibility to fund these activities until such time as PARTNERS amend this agreement. That IMPLEMENTING AGENCY may request reimbursement for these costs during the amendment process. 81. If there are insufficient funds in this agreement to implement applicable commitments and conditions included in the PROJECT environmental documentation, permits, agreements, and/or approvals that are in effect at a time that WORK stops, each PARTNER implementing commitments or conditions accepts responsibility to fund these activities, as they apply to each PARTNER's responsibilities, until such time as PARTNERS amend this agreement. Each PARTNER may request reimbursement for these costs during the amendment process. 82. PARTNERS will pay invoices within 30 calendar days of receipt of invoice. Cost: Environmental Permits, Approvals and Agreements 83. The cost of coordinating, obtaining, complying with, implementing, and if necessary renewing and amending resource agency permits, agreements, and/or approvals is an OBLIGATIONS COST. Cost: CONSTRUCTION Support PACT Version 10.1.2011_02_18 11 of 22 89 DRAFT District Agreement 08-1533 RCTC Agreement 12-31-078-00 84. The cost to maintain the SHS within PROJECT limits is an OBLIGATIONS COST until PARTNERS execute a separate maintenance agreement. 85. Each PARTNER listed below may submit invoices for CONSTRUCTION Support: RCTC will submit to CAL TRANS monthly invoices of actual expenditures. After PARTNERS agree that all WORK is complete, RCTC will submit a final accounting for all OBLIGATIONS COSTS. Based on the final accounting, PARTNERS will refund or invoice as necessary in order to satisfy the financial commitments of this agreement. Cost: CONSTRUCTION Capital 86. The cost of all SFM is a CONSTRUCTION CAPITAL cost. CAL TRANS will invoice RCTC for the actual cost of any SFM as a CONSTRUCTION CAPITAL cost. After PARTNERS agree that all WORK is complete, CAL TRANS will submit a final accounting for all SFM costs. Based on the final accounting, PARTNERS will refund or invoice as necessary in order to satisfy the financial commitments of this agreement. 87. Each PARTNER listed below may submit invoices for CONSTRUCTION Capital: RCTC will submit to CAL TRANS monthly invoices of actual expenditures. After PARTNERS agree that all WORK is complete, RCTC will submit a final accounting for all OBLIGATIONS COSTS. Based on the final accounting, PARTNERS will refund or invoice as necessary in order to satisfy the financial commitments of this agreement. SCHEDULE 88. PARTNERS will manage the schedule for OBLIGATIONS through the work plan included in the PROJECT MANAGEMENT PLAN. GENERAL CONDITIONS 89. PARTNERS understand that this agreement is in accordance with and governed by the Constitution and laws ofthe State of California. This agreement will be enforceable in the State of California. Any PARTNER initiating legal action arising from this agreement will file and maintain that legal action in the Superior Court of the county in which the PACT Version 10.1.2011_02_18 12 of 22 90 DRAFT District Agreement 08-1533 RCTC Agreement 12-31-078-00 CAL TRANS district office that is signatory to this agreement resides, or in the Superior Court ofthe county in which PROJECT is physically located. 90. All OBLIGATIONS of CAL TRANS under the terms of this agreement are subject to the appropriation of resources by the Legislature, the State Budget Act authority, and the allocation of funds by the California Transportation Commission. 91. Any PARTNER performing IQA does so for its own benefit. No one can assign liability to that PARTNER due to its IQA activities. 92. Neither RCTC nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by CAL TRANS and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon CAL TRANS under this agreement. It is understood and agreed that CAL TRANS will fully defend, indemnify, and save harmless RCTC and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CAL TRANS and/or its agents under this agreement. 93. Neither CAL TRANS nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by RCTC and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon RCTC under this agreement. It is understood and agreed that RCTC will fully defend, indemnify, and save harmless CAL TRANS and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by RCTC and/or its agents under this agreement. 94. PARTNERS do not intend this agreement to create a third party beneficiary or define duties, obligations, or rights in parties not signatory to this agreement. PARTNERS do not intend this agreement to affect their legal liability by imposing any standard of care for fulfilling OBLIGATIONS different from the standards imposed by law. 95. PARTNERS will not assign or attempt to assign OBLIGATIONS to parties not signatory to this agreement. 96. PARTNERS will not interpret any ambiguity contained in this agreement against each other. PARTNERS waive the provisions of California Civil Code section 1654. PACT Version 10.1.2011_02_18 13 of 22 91 DRAFT District Agreement 08-1533 RCTC Agreement 12-31-078-00 97. A waiver of a PARTNER's performance under this agreement will not constitute a continuous waiver of any other provision. An amendment made to any article or section of this agreement does not constitute an amendment to or negate all other articles or sections ofthis agreement. 98. A delay or omission to exercise a right or power due to a default does not negate the use ofthat right or power in the future when deemed necessary. 99. If any PARTNER defaults in its OBLIGATIONS, a non-defaulting PARTNER will request in writing that the default be remedied within 30 calendar days. If the defaulting PARTNER fails to do so, the non-defaulting PARTNER may initiate dispute resolution. I 00. PARTNERS will first attempt to resolve agreement disputes at the PROJECT team level. If they cannot resolve the dispute themselves, the CAL TRANS district director and the executive officer of RCTC will attempt to negotiate a resolution. If PARTNERS do not reach a resolution, PARTNERS' legal counsel will initiate mediation. PARTNERS agree to participate in mediation in good faith and will share equally in its costs. Neither the dispute nor the mediation process relieves PARTNERS from full and timely performance of OBLIGATIONS in accordance with the terms of this agreement. However, if any PARTNER stops fulfilling OBLIGATIONS, any other PARTNER may seek equitable relief to ensure that OBLIGATIONS continue. Except for equitable relief, no PARTNER may file a civil complaint until after mediation, or 45 calendar days after filing the written mediation request, whichever occurs first. PARTNERS will file any civil complaints in the Superior Court of the county in which the CAL TRANS district office signatory to this agreement resides, or in the Superior Court ofthe county in which PROJECT is physically located. The prevailing PARTNER will be entitled to an award of all costs, fees, and expenses, including reasonable attorney fees as a result of litigating a dispute under this agreement or to enforce the provisions of this article including equitable relief. 101. PARTNERS maintain the ability to pursue alternative or additional dispute remedies if a previously selected remedy does not achieve resolution. I 02. If any provisions in this agreement are deemed to be, or are in fact, illegal, inoperative, or unenforceable, those provisions do not render any or all other agreement provisions invalid, inoperative, or unenforceable, and PARTNERS will automatically sever those provisions from this agreement. I 03. PARTNERS intend this agreement to be their final expression and supersede any oral understanding or writings pertaining to OBLIGATIONS. PACT Version 10.1.2011_02_18 14 of 22 92 DRAFT District Agreement 08-1533 RCTC Agreement 12-31-078-00 104. If during performance of WORK additional activities or environmental documentation is necessary to keep PROJECT in environmental compliance, PARTNERS will amend this agreement to include completion of those additional tasks. 105. PARTNERS will execute a formal written amendment ifthere are any changes to OBLIGATIONS. 106. This agreement will terminate upon OBLIGATION COMPLETION or an amendment to terminate this agreement, whichever occurs first. However, all indemnification, document retention, audit, claims, environmental commitment, legal challenge, and ownership articles will remain in effect until terminated or modified in writing by mutual agreement. 107. The following documents are attached to, and made an express part of this agreement: SCOPE SUMMARY, FUNDING SUMMARY. DEFINITIONS CAL TRANS-The California Department ofTransportation CAL TRANS STANDARDS-CAL TRANS policies and procedures, including, but not limited to, the guidance provided in the Guide to Capital Project Delivery Workplan Standards (previously known as WBS Guide) available at http://www .dot.ca.gov /hq/projmgmt/ guidance.htm. CEQA (California Environmental Quality Act)-The act (California Public Resources Code, sections 21000 et seq.) that requires state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those significant impacts, if feasible. CFR (Code of Federal Regulations)-The general and permanent rules published in the Federal Register by the executive departments and agencies of the federal government. CONSTRUCTION CAPITAL-See PROJECT COMPONENT. CONSTRUCTION SUPPORT-See PROJECT COMPONENT. COOPERATIVE AGREEMENT CLOSURE STATEMENT-A document signed by PARTNERS that verifies the completion of all OBLIGATIONS included in this agreement and in all amendments to this agreement. COST-The responsibility for cost responsibilities in this agreement can take one of three assignments: PACT Version 10.1.2011_02_18 15 of 22 93 District Agreement 08-1533 RCTC Agreement 12-31-078-00 DRAFT • OBLIGATIONS COST-A cost associated with fulfilling OBLIGATIONS that will be funded as part of this agreement. The responsibility is defined by the funding commitments in this agreement. • PROJECT COST-A cost associated with PROJECT that can be funded outside of OBLIGATIONS. A PROJECT COST may not necessarily be part ofthis agreement. This responsibility is defined by the PARTNERS' funding commitments at the time the cost is incurred. • PARTNER COST-A cost that is the responsibility of a specific PARTNER, independent of PROJECT. FHWA-Federal Highway Administration FHWA STANDARDS-FHW A regulations, policies and procedures, including, but not limited to, the guidance provided at www.fhwa.dot.gov/topics.htm. FUNDING PARTNER-A PARTNER that commits a defined dollar amount to fulfill OBLIGATIONS. Each FUNDING PARTNER accepts responsibility to provide the funds identified on the FUNDING SUMMARY under its name. FUNDING SUMMARY-The table that designates an agreement's funding sources, types of funds, and the PROJECT COMPONENT in which the funds are to be spent. Funds listed on the FUNDING SUMMARY are "not-to-exceed" amounts for each FUNDING PARTNER. GAAP (Generally Accepted Accounting Principles)-Uniform minimum standards and guidelines for financial accounting and reporting issued by the Federal Accounting Standards Advisory Board that serve to achieve some level of standardization. See http://www. fasab. gov /accepted .htm I. HM-1-Hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law whether it is disturbed by PROJECT or not. HM-2-Hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law only if disturbed by PROJECT. HM MANAGEMENT ACTIVITIES -Management activities related to either HM-1 or HM-2 including, without limitation, any necessary manifest requirements and disposal facility designations. IMPLEMENTING AGENCY-The PARTNER responsible for managing the scope, cost, and schedule of a PROJECT COMPONENT to ensure the completion of that component. PACT Version 10.1.2011_02_18 16 of 22 94 DRAFT District Agreement 08-1533 RCTC Agreement 12-31-078-00 IQA (Independent Quality Assurance)-Ensuring that IMPLEMENTING AGENCY's quality assurance activities result in WORK being developed in accordance with the applicable standards and within an established Quality Management Plan (QMP). IQA does not include any work necessary to actually develop or deliver WORK or any validation by verifying or rechecking work perfonned by another partner. NEPA (National Environmental Policy Act of 1969)-The federal act that establishes a national policy for the environment and a process to disclose the adverse impacts of projects with a federal nexus. OBLIGATION COMPLETION-PARTNERS have fulfilled all OBLIGATIONS included in this agreement, and all amendments to this agreement, and have signed a COOPERATIVE AGREEMENT CLOSURE STATEMENT. OBLIGATIONS -All responsibilities included in this agreement. OBLIGATIONS COST-See COST. OMB (Office of Management and Budget)-The federal office that oversees preparation of the federal budget and supervises its administration in Executive Branch agencies. PARTNER-Any individual signatory party to this agreement. PARTNERS-The term that collectively references all of the signatory agencies to this agreement. This term only describes the relationship between these agencies to work together to achieve a mutually beneficial goal. It is not used in the traditional legal sense in which one PARTNER's individual actions legally bind the other partners. PROJECT-The undertaking of the construction on Interstate 215 (I-215) in Southwest Riverside County, from Scott Road to Nuevo Road IC, of a mixed flow lane in each direction and the reconstruction of auxiliary lanes between D Street and Nuevo Road. PROJECT COMPONENT-A distinct portion of the planning and project development process of a capital project as outlined in California Government Code, section 1 4529(b ). • PID (Project Initiation Document)-The activities required to deliver the project initiation document for PROJECT. • PA&ED (Project Approval and Environmental Document) -The activities required to deliver the project approval and environmental documentation for PROJECT. • PS&E (Plans, Specifications, and Estimate)-The activities required to deliver the plans, specifications, and estimate for PROJECT. • RIW (Right of Way) SUPPORT-The activities required to obtain all property interests for PROJECT. • RIW (Right of Way) CAPITAL-The funds for acquisition of property rights for PROJECT. • CONSTRUCTION SUPPORT-The activities required for the administration, acceptance, and final documentation ofthe construction contract for PROJECT. PACT Version 10.1.2011_02_18 95 17 of 22 District Agreement 08-1533 RCTC Agreement 12-31-078-00 DRAFT • CONSTRUCTION CAPITAL-The funds for the construction contract. PROJECT COST-See COST. PROJECT MANAGEMENT PLAN-A group of documents used to guide a project's execution and control throughout that project's lifecycle. QMP (Quality Management Plan)-An integral part of the Project Management Plan that describes IMPLEMENTING AGENCY's quality policy and how it will be used. RESIDENT ENGINEER-A civil engineer licensed in the State of California who is responsible for construction contract administration activities. Said engineer must be independent of the design engineering company and the construction contractor. SAFETEA-LU-Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users SCOPE SUMMARY-The attachment in which each PARTNER designates its commitment to specific scope activities within each PROJECT COMPONENT as outlined by the Guide to Capital Project Delivery Workplan Standards (previously known as WBS Guide) available at http://www .dot.ca.gov/hq/projmgmt/guidance.htm. SHS (State Highway System)-All highways, right of way, and related facilities acquired, laid out, constructed, improved, or maintained as a state highway pursuant to constitutional or legislative authorization. SPONSOR-Any PARTNER that accepts the responsibility to establish scope of PROJECT and the obligation to secure financial resources to fund PROJECT. SPONSOR is responsible for adjusting the PROJECT scope to match committed funds or securing additional funds to fully fund the PROJECT scope. If a PROJECT has more than one SPONSOR, funding adjustments will be made by percentage (as outlined in Responsibilities). Scope adjustments must be developed through the project development process and must be approved by CAL TRANS as the owner/operator of the SHS. SFM (State Furnished Material)-Any materials or equipment supplied by CAL TRANS. WORK-All scope activities included in this agreement. CONTACT INFORMATION The information provided below indicates the primary contact data for each PARTNER to this agreement. PARTNERS will notify each other in writing of any personnel or location changes. Contact information changes do not require an amendment to this agreement. The primary agreement contact person for CAL TRANS is: PACT Version 10.1.2011_02_18 18 of 22 96 DRAFT Emad Makar, Project Manager 464 West 4th Street, 6th Floor (MS-1229) San Bernardino, California 92401-1400 Office Phone: (909) 383-4978 Fax Number: (909) 383-6938 Email: emad.makar@dot.ca.gov The primary agreement contact person for RCTC is: Lisa DaSilva, Project Manager 4080 Lemon Street, 3rd Floor Riverside, California 92502 Office Phone: (909) 787-7971 Email: Ldasilva@rctc.org PACT Version 10.1.2011_02_18 97 District Agreement 08-1533 RCTC Agreement 12-31-078-00 19 of 22 --------------------------------------- DRAFT SIGNATURES PARTNERS declare that: District Agreement 08-1533 RCTC Agreement 12-31-078-00 I. Each PARTNER is an authorized legal entity under California state law. 2. Each PARTNER has the authority to enter into this agreement. 3. The people signing this agreement have the authority to do so on behalf of their public agencies. STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION APPROVED By: ___________ _ Syed Raza Acting District Director Date: ------------ CERTIFIED AS TO FUNDS: By: ___________ _ Lisa Pacheco Budget Manager Date: -------------- PACT Version 10.1.2011_02_18 98 RIVERSIDE COUNTY TRANSPORTATION COMMISSION APPROVED By: ____________ _ Anne Mayer Executive Director Date: ------------ APPROVED AS TO FORM AND PROCEDURE By: ____________ _ Best, Best, and Krieger General Council Date: ------------ 20 of 22 -=t It) to .... co 5 270 10 15 20 25 05 10 15 20 25 30 35 40 45 50 99 30 35 20 40 45 55 60 65 80 99 5 275 5 285 5 290 5 295 4 300 PACT Version 10.1.2011_02_18 08-RIV-215-R14.20/28.50 EA: OF162 Federal Funds District Agreement 08-1533 Project Number 0800000116 RCTC Agreement 12-31-078-00 DRAFT SCOPE SUMMARY c: (/) 0 z :..-<( u a. ~ 1-::! ·;:: u 1-u z Ill ....1 ~ Q) <( 0 u Construction Engineering and General Contract X Administration Construction Staking Package and Control X Construction Stakes X Construction Engineering Work X Construction Contract Administration Work X Secured Lease for Resident Engineer Office Space or X Trailer Set Up Construction Project Files X Pre-Construction Meeting X Progress Pay Estimates X Weekly Statement of Working Days X Construction Project Files and General Field Office X Clerical Work Labor Compliance Activities X Approved Subcontractor Substitutions X Coordination X Civil Rights Contract Compliance X Other Construction Contract Administration Products X Contract Item Work Inspection X Construction Material Sampling and Testing X Source Inspection X Safety and Maintenance Reviews X Relief From Maintenance Process X Final Inspection and Acceptance Recommendation X Plant Establishment Administration X Transportation Management Plan Implementation During X Construction Long-Term Environmental Mitigation/Mitigation X Monitoring During Construction Contract Other Construction Engineering and General Contract X Administration Construction Engineering and General Contract X Administration of Structures Work Contract Change Order Administration X Resolve Contract Claims X Accept Contract, Prepare Final Construction Estimate, X and Final Report FINAL RIGHT OF WAY ENGINEERING X 21 of 22 99 Cl) :5 C')CI) C'),_ c. ·c.. .5 (,) c: Cl) >. 'C ... ·-c: 1-Ill c: :I 'Ct: 'C (.) c: Ill :I 0 .Za. c: z LL(/) :I 0 LL (.) STATE RCTC Transportation Improvement Program/Regional Improvement Program (STIP/RIP) STATE RCTC Corridor Mobility Improvement Account (CMIA) LOCAL RCTC Local Subtotals by Component PACT Version 1 0.1.2011_02_18 DRAFT FUNDING SUMMARY t: iiit: z 0 -0 oc. 0 c. .:Cc. u§' :I :I (/) (!)(/) $56,000,000 $0 $0 $42,370,000 $15,000,000 $15,000,000 $6,630,000 $0 $0 $105,000,000 $15,000,000 $15,000,000 22 of 22 100 co--Ill 0:!: -c. ..c Ill ~(.) $56,000,000 $42,370,000 $6,630,000 $105,000,000 08-RIV-215-R 14.20/28.50 EA: OF162 Federal Funds District Agreement 08-1533 Project Number 0800000116 RCTC Agreement 12-31-078-00 Cl) -C. Ill >. (51--en ..c'C :I c: (/) :I LL $56,000,000 $57,370,000 $6,630,000 $120,000,000 AGENDA ITEM 1 0 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April 23, 2012 TO: Western Riverside County Programs and Projects Committee FROM: Mark Lancaster, Interim Right of Way Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Interstate 21 5 Scott Road to Nuevo Road -Utility Agreements and Construction and Maintenance Agreement STAFF RECOMMENDATION: This item is for the Committee to: 1) Authorize the Executive Director, pursuant to legal counsel review, to execute the utility agreements related to the 1-215 Scott Road to Nuevo Road Central widening project on behalf of the Commission; 2) Approve Agreement No. 12-31-082-00 with Caltrans for construction and maintenance of the Ethanac Overhead Bridge; 3) Authorize the Executive Director, pursuant to, legal counsel review, to execute Agreement No. 12-31-082-00 on behalf of the Commission; and 3) Forward to the Commission for final action. BACKGROUND /NFORMA TION: The Commission, in conjunction with Caltrans, is developing plans for improving the existing 1-21 5 freeway from Scott Road to Nuevo Road. Proposed construction includes widening 1-215 from two to three lanes in each direction, widening undercrossings and replacing the Perris Boulevard overcrossing and the "D" Street on-ramp overcrossing in the city of Perris. On February 2, 2009, a cooperative agreement between Caltrans and the Commission authorized the Commission to perform all project work. Project work includes, in part, that the Commission identify, locate, accommodate, protect, relocate, or remove any utilities that conflicted with the 1-21 5 construction. Project work also requires that the Commission enter into a construction and maintenance agreement with Caltrans for the modification of the Ethanac Road Overhead Bridge over the San Jacinto Branch Line railroad right of way. The Commission owns the railroad right of way and will be administering the construction of the project. A new construction and maintenance agreement is required for Caltrans' long-term maintenance obligation for the bridge structure and Agenda Item 1 0 101 I to update the original construction and maintenance agreement executed between Caltrans and Atchison, Topeka and Santa Fe in 1961. Utility agreements will be required with the city of Perris, Southern California Edison, Southern California Gas Company, and Verizon to relocate all utility facilities, which are in conflict with project construction. As a part of establishing liability for the cost of the utility relocation, a prior rights check is performed by the utility owner and verified by the Commission's Utility Coordinator. The utility facilities will be relocated either before or concurrently with construction activities. The estimated cost for the Commission's share of the relocation work is $513,500. The Commission previously approved the required right of way ·funding at its February 11, 2011 meeting. Staff is recommending the Commission authorize the Executive Director to execute the utility agreements and the construction and maintenance agreement on behalf of the Commission. While these are standard form agreements, examples of a draft utility agreement and a draft construction and maintenance agreement are included as attachments. Financial Information In Fiscal Year Budget: I Yes I I FY2011/12 Amount: I $13,500 N/A Year: FY 2012/13 + $500,000 Source of Funds: I STIP-RIP, Measure A, CMIA Budget Adjustment: I No N/A GL!Project Accounting No.: 003023 81401 00068 0000 262 31 81401 Fiscal Procedures Approved: ~~ I Date: I 04/13/12 Attachments: 1) Draft Agreement No. 12-31-082-00 Construction and Maintenance Agreement (Ethanac Overhead Bridge) 2) Sample Utility Agreement Agenda Item 1 0 102 I Agreement No. 12-31-082-00 CONSTRUCTION AND MAINTENANCE AGREEMENT (Ethanac Overhead Bridge) This Construction and Maintenance Agreement ("Agreement") is made and entered in as of , 20_ by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("COMMISSION") and STATE OF CALIFORNIA, acting through its Department of Transportation ("STATE"). COMMISSION and STATE are sometimes referred to herein individually as "Party" and collectively as "Parties". RECITALS A. WHEREAS, COMMISSION is the owner in fee of that certain real property commonly referred to as the San Jacinto Subdivision ("Rail Corridor"). B. WHEREAS, Burlington Northern and Santa Fe Railway Company ("BNSF") has a freight easement for use of the Rail Corridor and is currently responsible for maintenance thereof pursuant to its Shared Use Agreement with COMMISSION. C. WHEREAS, STATE owns, operates, repairs and maintains the existing Ethanac Overhead Bridges on Interstate 215, Bridge No. 56-0175L and 56-0175R, PUC Crossing No. 002X-22.00-A, (Ethanac Overhead Bridges") which span over State Route 74 ("STATE right of way") and the Rail Corridor pursuant to that certain easement agreement entered into by Atchison, Topeka and Santa Fe Railway Company and STATE as of August 9, 1 961, recorded in Riverside County as document number 1 5045 ("Existing Easement"). D. WHEREAS, COMMISSION wishes to complete work related to median widening of the Ethanac Overhead Bridges ("Project'), as more particularly described in Exhibit "A" as part of a larger Interstate 215 Highway Widening Project. E. WHEREAS, the plans and specifications for Project will be reviewed and approved by BNSF and the STATE, and the plans and specifications for the falsework shall be reviewed upon completion thereof by Commission's contractor and shall be subject to approval by BNSF and COMMISSION's Construction Manager (collectively the "Plans and Specifications"). The plans and specifications for the falsework must be submitted for review and approved by BNSF and COMMISSION prior to 103 commencement of any work on the Project. Parties agree that Project shall be constructed in accordance with the Plans and Specifications F. WHEREAS, pursuant to a separate agreement, COMMISSION shall obtain or shall require its contractor to obtain flagging services for Project work and/or any required maintenance work from BNSF or SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY ("SCRRA"), . G. WHEREAS, upon completion of Project, STATE shall operate, repair and maintain the completed Ethanac Overhead Bridges, and all portions thereof (the "Structure") within State's right of way and over and across COMMISSION's right of way pursuant to the terms and conditions contained in this Agreement. H. WHEREAS, Parties intend, concurrently with execution of this Agreement, to execute certain easements in favor of the STATE related to the permanent location of Structure on Property (the "Easements"). The Easements, attached hereto as Exhibit "B" provide that the Easements are subject to the terms and conditions contained in this Agreement. I. WHEREAS, Parties wish to enter into this Agreement whereby COMMISSION will grant STATE a license to enter Property for purposes of repair and maintenance of the Structure, all subject to the terms and conditions contained in this Agreement. J. WHEREAS, STATE and COMMISSION have entered into a Cooperative Agreement No. 08-1533 on , 2012, for construction of the above referenced Interstate 21 5 Highway Widening project, including construction of Project over the Rail Corridor (collectively, the "Cooperative Agreement"). K. WHEREAS, except as otherwise specified herein, COMMISSION has prepared the plans and specifications for Project. L. WHEREAS, COMMISSION is the sponsor (as that term is used in the Cooperative Agreement) for construction of Project, and is responsible for construction funding. NOW, THEREFORE, COMMISSION and STATE do hereby agree as follows: 104 AGREEMENT 1. Grant of Easements. Concurrently with execution of this Agreement, Parties shall execute Easements related to the permanent location of Structure on Property. Said Easements shall be recorded against Property, and provide that all repair and maintenance of Structure shall be subject to and conducted pursuant to the terms and conditions of this Agreement. Parties agree that, upon completion of construction of Project, "Property", as that term is used herein, shall refer to that portion of COMMISSION's property as shown on the Easements and in Exhibit "8". The Easements shall cover that portion of the Property not covered under the Existing Easement. 2. Term. The term of this Agreement shall commence on the date first specified above and shall continue in effect for so long as the Easement exists, unless otherwise terminated by mutual consent. This Agreement is subordinate to all prior or future rights and obligations of COMMISSION in Property, except that COMMISSION shall grant no rights inconsistent with the reasonable exercise by STATE of its rights under this Agreement. 3. COMMISSION Obligations Regarding Construction of Project. 3.1 COMMISSION shall provide for and maintain minimum vertical and horizontal clearances as shown in the Plans and Specifications for Project, and in accordance with the Contractor Requirements set forth in Exhibit "B" and the State Bridge/Falsework Clearance Requirements as provided in Exhibit "E", both of which are attached hereto and incorporated herein by reference. 3.2 COMMISSION shall construct Project in a good and workmanlike manner and as shown on the Plans and Specifications. The principal elements of Project work ("Work") are as follows: (a) Construction of Project; (b) All necessary grading and paving, including backfill of excavations and restoration of disturbed vegetation on the Rail Corridor; (c) Provision of suitable drainage, both temporary and permanent; (d) Maintenance of the job site at all times so that it will not present any source of danger to any person or property. 105 (e) Removal of all trash and debris associated with the construction of Project. (f) Job site cleanup to the pre-construction condition to COMMISSION's satisfaction. 3.3 The Work shall be performed by COMMISSION or its contractor(s) in a manner that will not endanger or interfere with the safe and timely operations of the STATE Right of Way or BNSF facilities. 3.4 The Work, including shoring, false work or cribbing used by COMMISSION, shall comply with the BNSF Bridge Requirements, attached hereto as Exhibit "F" and incorporated herein by reference, and all applicable requirements promulgated by state and federal agencies, departments, commissions and other legislative bodies. 3.5 Prior to commencing any work on or about Property, COMMISSION shall require its contractor to provide plans and specifications for the falsework to BNSF and STATE for review and approval. 3.6 The Work shall be performed by COMMISSION or its contractor(s) in a manner that will not endanger or interfere with the safe and timely operations of , SCRRA or BNSF facilities or trains. (a) Prior to the date that SCRRA assumes operations and maintenance responsibility for the corridor, emergency work will be permitted only upon prior notification to BNSF's Network Operations Center (telephone number: 800 832-5452). (b) Commencing as of the date that SCRRA assumes operations and maintenance responsibility for the corridor, anticipated to start at the middle of 2011, the required notification for emergency work shall be provided to SCRRA ((909) 593-0661 or (888) 446-9715). (c) Parties hereto mutually acknowledge and agree that trains cannot be subject to delay once SCRRA Metrolink Commuter Rail Service commences in late 2012. 3. 7 COMMISSION and its contractors and agents performing work on Property, or any part thereof, shall comply with the insurance requirements specified in Exhibit "0", attached to this Agreement and incorporated herein by reference. COMMISSION is placed on notice that fiber optic, communication and other cable lines, gas, electric, and/or other utilities, and systems (collectively, the "Lines") owned by various telecommunications, electrical, gas, 106 or other companies may be buried on Property. As applicable, the locations of these known Lines have been included on the Plans and Specifications based on available information from the utility companies but all utility locations may not be shown or known. COMMISSION shall be responsible for contacting the utility companies and notifying them of any work that may damage Lines or facilities and/or interfere with their service. As applicable, COMMISSION must also mark all Lines shown on the Plans and Specifications or marked in the field in order to verify their locations. COMMISSION must also use all reasonable methods when working on or adjacent to Property to determine if any other Lines (fiber optic, cable, communication, gas, electric, or otherwise) may exist. (a) COMMISSION shall be responsible for the rearrangement of any facilities or Lines determined to interfere with construction. COMMISSION shall cooperate fully with any impacted utility company(ies) in performing such rearrangements. (b) Failure to mark or identify these Lines is sufficient cause for COMMISSION to stop construction of Project until identification work is completed. 3.8 COMMISSION contractors on Project shall conform with and meet the Contractor Requirements set forth in Exhibit "B" attached hereto and incorporated herein by reference. 3.9 As may be required by BNSF, prior to performing any work on Project, COMMISSION contractors shall execute BNSF's most-current standard "Exhibit 'C' -Contractor Requirements" and BNSF's most-current standard "Exhibit 'C-1'". -Contractor Insurance Requirements. 3.10 COMMISSION shall supervise and inspect the operations of any contractors completing the Work to assure compliance with the Plans and Specifications, the terms of this Agreement and all safety requirements specified herein. 3.11 COMMISSION shall advise BNSF's Manager of Public Projects, in writing of the completion date of Project within thirty (30) days after such completion date. Additionally, COMMISSION shall notify BNSF's Manager of Public Projects, in writing, of the date on which COMMISSION will meet with STATE for the purpose of making final inspection of Project. 3.12 In addition to the working drawings required in Exhibit "B", the COMMISSION shall provide one set of as-built plans (prepared in English Units) to BNSF , as well as one set of computer diskettes containing as-built CAD drawings of Structure and identifying the software used for the CAD drawings. The "as-built plans" must comply with the Bridge Requirements and depict all information in BNSF engineering stationing and mile post 107 pluses. The lias-built plans" must also include plan and profile, structural bridge drawings and specifications, and drainage plans. All improvements and facilities must be shown. 3.13 COMMISSION shall require all of its contractors and agents engaged under contract to perform work on Property, or any part thereof, to include STATE as an indemnified party under COMMISSION's standard contractual indemnification, hold harmless and defense requirements. Each such contract shall also incorporate all applicable material provisions of this Agreement as binding terms contained therein. 4. STATE Rights Regarding Construction. 4.1 STATE shall have the right, in its reasonable discretion, to request any employee or contractor who enters the STATE right of way and because of their incompetence, neglect of duty, unsafe conduct or misconduct and/or because they adversely affected operations on the STATE right of way, be removed from the STATE right of way. In the event Commission elects not to honor such request, STATE may stop work within the STATE right of way until the matter has been fully resolved to STATE's reasonable satisfaction. 4.2 STATE shall have the right to stop construction work on Project if any of the following events take place: (i) Project work is performed in a manner contrary to the Plans and Specifications; (ii) Project work is performed in a manner which is hazardous to the STATE Highway Corridor, facilities or the safe and expeditious movement of traffic; or (iii) the insurance described in the attached Exhibit 11 0 11 is canceled during the course of Project. The work stoppage shall continue until all necessary actions are taken to rectify the situation to the reasonable satisfaction of STATE. Any such work stoppage under this provision shall not give rise to any liability on the part of STATE. STATE 's right to stop the work is in addition to any other rights STATE may have. In the event that STATE desires to stop construction work on Project, STATE agrees to immediately notify the following individual in writing: COMMISSION's Resident Engineer. 5. No Liability of BNSF for Approval of Plans and Specifications. Any approval of the Plans and Specifications by BNSF shall in no way obligate BNSF in any manner with respect to the finished product design and/or construction. Any approval by BNSF shall mean only that the Plans and Specifications meet the subjective standards of BNSF, and such approval by BNSF shall not be deemed to mean that the Plans and Specifications or construction is structurally sound, appropriate or that the Plans and Specifications meet applicable regulations, laws, statutes or local ordinances and/or building codes. 108 6. Maintenance of Structure by STATE. The operation, repair and maintenance of Structure shall be performed in accordance with the following express conditions, to which STATE covenants and agrees by and for itself, its successors and assigns: 6.1 No additional improvements shall be constructed by STATE and no non-emergency repairs shall be made to Structure or on Property by STATE, its contractors, employees or agents unless plans are approved in writing by COMMISSION. 6.2 STATE, at its sole cost and expense, shall operate, repair and maintain Structure, and all approaches thereto, highway pavement, drainage pipe, highway drainage, lighting and all highway facilities. 6.3 Operation, repair and maintenance of Structure, including, without limitation, any parts of Structure that extend outside of Property, shall be accomplished in such a manner so that it does not interfere with or be a source of danger to: (i) present or future tracks, roadbed, and personal and real property within Property and surrounding area, and (ii) the safe operation of railroad and related activities within Property and surrounding area. 6.4 STATE shall provide COMMISSION with no less than thirty (30) days prior written notice of any non-emergency repair work or maintenance work to be performed for Structure, excepting for routine street sweeping. Any work performed for Structure shall not interfere with rail traffic and related activities within Property and surrounding area and must be approved in writing by COMMISSION prior to commencement of any non-emergency repair work, excepting for routine street sweeping. 6. 5 STATE shall not, without the express written consent of COMMISSION: (i) place any signs, billboards or advertisements on Structure, other than project monument signs; (ii) erect or construct any building or structures within Property; (iii) park or store any vehicles within Property; or (iv) store any material or permit any activity within Property and surrounding area that in any manner involves or includes combustible, hazardous or toxic material that has the reasonable potential to cause, directly or indirectly, a fire, explosion, implosion or corrosive damage. 6.6 This Agreement does not include any right of STATE to permit third party utilities within Property. Any such right shall be governed by a separate permit or license. 6. 7 Additional STATE Obligations Regarding Maintenance of Structure. 109 (a) STATE shall, at its sole cost and expense, promptly arrange for removal of graffiti, and shall at all times maintain the strength, soundness and safety of Structure. (b) STATE shall maintain the D.O.T. Crossing Number as follows: for North Bound -DOT No. 027313T (PUC Crossing No. 002X- 6.40-A), for South Bound -DOT No. 027314A (PUC Crossing No. 002X- 6.42-A). The D.O.T. Crossing Number shall be maintained in good readable condition in the conspicuous location on Structure where applied by or on behalf of STATE. (c) All work to be conducted pursuant to this Section 6 shall be performed in good and workmanlike manner and all work shall be promptly commenced and prosecuted to conclusion in its logical order and sequence. 6.8 STATE shall notify and obtain prior authorization from BNSF's Manager of Public Projects before entering the Rail Corridor for any purpose, if BNSF is maintaining the Rail Corridor at the time activities are to be performed. 6.9 STATE shall notify and obtain prior authorization from the Manager of Public Projects for SCRRA before entering the Rail Corridor for any purpose, if SCRRA is maintaining the Rail Corridor at the time activities are to be performed. 6.10 Prior to perm1ttmg any contractor or agent of STATE to enter into the Rail Corridor pursuant to this Section 6, STATE shall require such contractor or agent to comply with the insurance requirements set forth in Exhibit "D" or as otherwise required by COMMISSION. STATE shall ensure that evidence satisfactory to COMMISSION of such compliance, including submission to COMMISSION of any required insurance certificates and/or endorsements, has been provided. 6.11 STATE shall require all of its contractors and agents engaged under contract to perform work on Property, or any part thereof, to include COMMISSION as an indemnified party under STATE's standard contractual indemnification, hold harmless and defense requirements. Each such contract shall also incorporate all applicable material provisions of this Agreement as binding terms contained therein. 6.12 COMMISSION shall have the right, but not the obligation, to request any employee or contractor of STATE who enters the Rail Corridor and because of their incompetence, neglect of duty, unsafe conduct or 110 misconduct and/or because they adversely affected operations within the Rail Corridor, be removed from the Rail Corridor. 7. Liens. Except as may result from an act or omission of COMMISSION related to Project, including any obligation of COMMISSION under the Cooperative Agreement, STATE shall not permit to be placed against Property, or any part thereof, any design professionals', mechanics', materialmen's contractors' or subcontractors' liens with regard to STATE's actions upon Property. STATE agrees to hold COMMISSION harmless for any loss or expense, including reasonable attorneys' fees and costs, arising from any such liens which might be filed against Property. 8. Indemnification. PURSUANT TO CALIFORNIA government CODE SECTION 14662.5, STATE HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS COMMISSION FROM, AND TO REPAIR OR PAY FOR, ANY DAMAGE PROXIMATELY CAUSED BY REASON OF THE USES AUTHORIZED BY THIS AGREEMENT AND THE EASEMENTS. To the fullest extent permitted by law, STATE hereby releases, indemnifies, defends and holds harmless COMMISSION, its successors, assigns, legal representatives, officers, directors, employees, agents and representatives for, from and against any and all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitation, court costs and attorneys' fees) of any nature, kind or description of any person (including, without limitation, the employees of the parties hereto) or entity directly or indirectly arising out of, resulting from or related to (in whole or in part) (i) the use, occupancy or presence of STATE, its contractors, subcontractors, employees or agents in, on, or about the construction site, (ii) the performance, or failure to perform by the STATE, its contractors, subcontractors, employees, or agents, its work or any obligation under this Agreement, (iii) the sole or contributing acts or omissions of STATE, its contractors, subcontractors, employees, or agents in, on, or about the construction site, (iv) STATE's breach of this Agreement or the Easements, (v) any rights or interests granted to STATE pursuant to this Agreement or the Easements (vi) STATE's occupation and use of RCTC's property or right-of-way, including, without limitation, subsequent maintenance of Structure by STATE, or (vii) an act or omission of STATE or its officers, agents, invitees, employees or contractors or anyone directly or indirectly employed by any of them, or anyone they control or exercise control over. THE LIABILITY ASSUMED BY STATE WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF COMMISSION, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE 1 1 1 PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF COMMISSION. 9. Assumption of Risk and Waiver. To the maximum extent allowed by law, STATE assumes any and all risk of loss, damage or injury of any kind to any person or property, including without limitation, Structure, STATE's property and any other property of, or under the control or custody of, STATE, which is on or near Property. STATE's assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvement on or near Property including Structure, accident or fire or other casualty on or near Property, or electrical discharge, and noise or vibration resulting from COMMISSION's or BNSF's transit operations on or near Property. The term "COMMISSION" as used in this section shall include: (i) any transit ·or rail-related company operating upon or over COMMISSION's tracks or other property, and (ii) any other persons or companies employed, retained or engaged by COMMISSION. STATE, on behalf of itself and its Personnel, as a material part of the consideration for this Agreement, hereby waives all claims and demands against COMMISSION for any such loss, damage or injury of STATE and/or its Personnel. In that connection, STATE waives, for itself and its Personnel, the benefit of California Civil Code Section 1 542, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. The provisions of this section and of Section 8 and 1 0 shall survive the termination of this Agreement. As used in this section, "Personnel" means STATE, or its officers, directors, affiliates, or anyone directly or indirectly employed by STATE or for whose acts STATE is liable. Further, STATE ACCEPTS PROPERTY IN ITS "AS IS" CONDITION, WITH ALL FAULTS. STATE acknowledges and agrees that STATE is entering Property under this Agreement based on STATE's own investigations and knowledge of Property and that, except as otherwise specifically stated in this Agreement, neither COMMISSION nor any agent of COMMISSION, has made any representation or warranty whatsoever, express or implied, with regard to the physical condition of Property or the suitability of Property for any particular purpose or use, including, without limitation, any representations or warranties regarding the applicability or non-applicability of any laws, the soil or subsoil, surface or subsurface conditions, topography, possible hazardous substances contamination, fill, drainage, access to public roads, availability of utilities, existence of underground 112 storage tanks, applicability of or compliance with any environmental laws or any other matter of any nature whatsoever. 10. Defense. Upon written notice from COMMISSION, STATE agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against COMMISSION by any public body, individual, partnership, corporation, or other legal entity, relating to any matter covered by this Agreement for which STATE has an obligation to assume liability for and/or to indemnify or save and hold harmless COMMISSION. STATE shall pay all the costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation expenses, settlement payments, and amounts paid in satisfaction of judgments. Any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency shall be covered by this section, including, but not limited to, the theories of intentional misconduct, negligence, breach of statute or ordinance, or upon any theory created by statute or ordinance, state or federal. 11. Compliance with Laws/Permits. STATE shall, in all activities undertaken pursuant to this Agreement, comply and cause its contractors, agents and employees to comply with all federal, state and local laws, statutes, orders, ordinances, rules, regulations, plans, policies and decrees. Without limiting the generality of the foregoing, STATE, at its sole cost and expense, shall obtain any and all permits which may be required by any law, regulation or ordinance for any activities STATE desires to conduct or have conducted pursuant to this Agreement. 12. Inspection. COMMISSION and its representatives, employees, agents or independent contractors may enter and inspect Property or any portion thereof or any improvements thereon at any time and from time to time at reasonable times to verify STATE's compliance with the terms and conditions of this Agreement. 13. Default and Remedies. If STATE fails to fulfill any material obligation of STATE under this Agreement, COMMISSION may give written notice to STATE of such failure, and in the event that STATE fails to remedy such failure within thirty (30) calendar days following receipt of such notice, or if such remedy cannot reasonably be completed within thirty (30) days, to commence such remedy within said time period and to diligently complete such remedy within a reasonable period of time, COMMISSION may, at its option, and in addition to any other available legal or equitable remedy, perform such work itself as it deems necessary for the safe operation of uses on Property. In such event, STATE agrees to pay, within forty five (45) days after a bill is rendered therefor, the cost so incurred by COMMISSION. However, failure on the part of COMMISSION to perform the obligations of 113 STATE shall not release STATE from liability hereunder for any loss or damage occasioned thereby. 14. Not Real Property Interest. It is expressly understood that this Agreement does not in any way whatsoever grant or convey any permanent easement, lease, fee or other interest in Property to STATE. This Agreement is not exclusive and COMMISSION specifically reserves the right to grant other rights of entry within the vicinity of Property. 15. Attorneys' Fees. In the event of a dispute between Parties with respect to the terms or conditions of this Agreement, the prevailing Party shall be entitled to collect from the other its reasonable attorneys' fees and costs as established by the judge or arbitrator presiding over such dispute. 16. Revocation and Termination. It is the intent of Parties that this Agreement for continued maintenance of Structure granted herein shall continue and remain in full force and effect so long as the Easements are in effect. Notwithstanding any improvements made by STATE to Property or any sums expended by STATE in furtherance of this Agreement, this Agreement is revocable and may be terminated by COMMISSION upon relinquishment of the Easements. 17. Restoration of Property. Upon the termination or revocation of this Agreement, at COMMISSION's option, to be exercised in writing, STATE shall be required to either 1) leave Structure in good operating condition and shall relinquish title of Structure to COMMISSION; or 2) STATE shall, at its own cost and expense, remove Structure and restore Property to the same condition in which it was prior to STATE's entry. In case STATE shall fail to commence restoration of Property to its prior condition within ten ( 1 0) business days after the effective date of the termination and to diligently pursue completion of such restoration, COMMISSION may proceed with such work at the expense of STATE. 18. Continuing Liability. No termination of this Agreement shall release STATE from any liability or obligation hereunder resulting from any acts, omissions or events happening prior to the termination of this Agreement and restoration of Property and/or transfer of Structure. 19. 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 Parties at the following addresses: 114 COMMISSION: BNSF: STATE: Riverside County Transportation Commission 4080 Lemon Street, Third Floor Riverside, California 92502-7141 Attn. Director of Rail Projects Fax: (951) 787-7906 BNSF Railway Company Manager of Public Projects 740 E. Carnegie Drive San Bernardino, CA. 92408 Email: Melvin.Thomas@bnsf.com BNSF Railway Company Assistant Director Structural Engineering 4515 Kansas Avenue Kansas City, KS 661 06 Email: Donald.Lozano@bnsf.com State of California Department of Transportation Division of Right of Way - Railroad Agreements 1120 N. Street, MS 37 Sacramento, CA 95814 20. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 21 . Third Party Beneficiaries. BNSF shall be a third party beneficiary as to Sections 3.3, 3.11, 3.14, 3.15, 5, and Section 6.8 of this Agreement. SCRRA shall be a third party beneficiary as to Section 6.9 of this Agreement. Except as specified in the foregoing, there are no third party beneficiaries, 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. 22. Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions, or provisions of this Agreement, or the application thereof to any person or 115 circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 23. 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. 24. Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 25. Assignment. Except as required by law, this Agreement and the rights granted herein are personal to STATE. STATE shall not assign or transfer (whether voluntary or involuntary) this Agreement in whole or in part, or permit any other person or entity, except as provided by law, to use the rights or privileges hereby conveyed, without the prior written consent of COMMISSION, which may be withheld in COMMISSION's sole and absolute discretion. Any attempted act in violation of this section shall be void and without effect and give COMMISSION the right to immediately terminate this Agreement. 26. Waiver of Covenants or Conditions. Waiver by COMMISSION of the performance of any covenant or condition under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of any other covenant or condition under this Agreement. 27. Entire Agreement. This Agreement, the attached exhibits and any other documents specifically referenced and incorporated herein constitute the entire agreement between Parties with respect to the subject matter hereof, and supersede all prior verbal or written agreements and understandings between Parties with respect to the matters addressed in this Agreement. 27. Recitals. The Recitals set forth above are incorporated herein by reference. [Signatures on following page] 116 SIGNATURE PAGE TO CONSTRUCTION AND MAINTENANCE AGREEMENT (Box Springs Overhead Bridge) IN WITNESS WHEREOF, Parties hereto have executed this Agreement on the date first written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: Anne Mayer, Executive Director APPROVED AS TO FORM: By: Best Best & Krieger LLP Counsel to the Riverside County Transportation Commission 117 STATE OF CALIFORNIA, DEPT. OF TRANSPORTATION By: By: Donald E. Grebe, Chief Office of Project Delivery Division of Right of Way and Land Surveys Attorney, Department of Transportation APPROVAL RECOMMENDED: By: Denny Fang, P.E., Railroad Agreements Engineer EXHIBIT "A" DESCRIPTION OF "PROPERTY" SUBJECT TO LICENSE DURING PROJECT CONSTRUCTION [Attached behind this page] Exhibit A 17336.01900\7383695.1 118 EXHIBIT "B" CONTRACTOR REQUIREMENTS As part of this Agreement, COMMISSION agrees to require all of its contractors and agents to conform to the following requirements, and to comply with the insurance requirements set forth in Exhibit "0": 1. General Provisions For any falsework above any tracks or any excavations located within twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 1 horizontal to 1 vertical slope beginning at eleven ( 11) feet from centerline of the nearest track, whichever is greater, both measured perpendicular to center line of track, Contractor shall furnish COMMISSION five (5) sets of working drawings showing details of construction affecting COMMISSION's Property. The working drawings shall include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract plans, and two (2) sets of structural calculations of any falsework, shoring or cribbing. All calculations shall take into consideration railway surcharge loading and shall be designed to meet American Railway Engineering and Maintenance-of-Way Association (previously known as American Railway Engineering Association) Coopers E- 80 live loading standard. All drawings and calculations shall be stamped by a registered professional engineer licensed to practice in California. Contractor shall not begin work until notified by COMMISSION that plans have been approved. Contractor shall be required to use filling devices such as cranes and/or winches to place or to remove any falsework over COMMISSION's tracks. In no case shall Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. 2. Contractor Requirements (a) Contractor shall take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. (b) Contractor shall notify COMMISSION, as required herein, and provide blasting plans to COMMISSION for review seven (7) calendar days prior to conducting any blasting operations adjacent to or on COMMISSION's Property. (c) In addition to any the vertical and horizontal clearance requirements contained in Exhibit "E", STATE and its contractors or agents shall abide by the following clearances during construction: Exhibit B-1 1733601900\7383695 I 119 o 27' -0" Vertically above top of rail for electric wires carrying less than 750 volts o 28' -0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts 3(Y-O" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts o 34' -0" Vertically above top of rail for electric wires carrying more than 20,000 volts (d) The details of construction affecting COMMISSION's Property not included in the contract plans shall be submitted to COMMISSION for approval before work is undertaken and this work shall not be undertaken until approved by COMMISSION. (e) At other than public road crossings, Contractor shall not move any equipment or materials across COMMISSION's tracks until permission has been obtained from COMMISSION. The Contractor shall obtain a "Temporary Private Crossing Agreement" from COMMISSION prior to moving his equipment or materials across COMMISSION's tracks. The temporary crossing shall be gated and locked at all times when not required for use by Contractor. The temporary crossing for use of Contractor shall be at the expense of Contractor. (f) Discharge, release or spill on COMMISSION's Property of any hazardous substances in excess of a reportable quantity or any hazardous waste is prohibited and Contractor shall immediately notify COMMISSION of any discharge, release or spills. Contractor shall not allow COMMISSION's Property to become a treatment, storage facility as those terms are defined in the applicable federal and state law. (g) Upon completion of the work covered by the Agreement, Contractor shall promptly remove from COMMISSION's Property all of Contractor's tools, equipment, implements anti other materials, whether brought upon said property by said Contractor or any subcontractor, employee or agent of Contractor or of any subcontractor. and shall cause COMMISSION's Property to be left in a condition acceptable to COMMISSION. 3. Contractor Safety Action Plan Contractor shall develop and implement a safety action plan which shall be made available to COMMISSION prior to commencement of any work on COMMISSION's Property. During performance of work, Contractor shall audit Exhibit B-2 17336.01900\7383695.1 120 it's compliance with the Safety Action Plan. Contractor shall designate an on-site representative who shall serve as the contact person for COMMISSION and who shall maintain a copy of the safety action plan and subsequent audits at the job site for inspection and review by COMMISSION at any time during performance of the work. 4. Protection of COMMISSION Facilities and Activities Performed on COMMISSION's Property Contractor shall give a minimum of fifteen (15) working days notice to COMMISSION and to The Burlington Northern And Santa Fe Railway Company ("BNSF") at (909) 386-4061 in advance of when flagging services will be required. 5. Contractor General Safety Requirements (a) Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any track shall be in compliance with FRA Roadway Worker Protection Regulations. (b) Before beginning any task on COMMISSION's Property, a thorough job safety briefing shall be conducted with all personnel involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job briefing must include the BNSF's flagger and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any COMMISSION track(s). Any work within 25 feet of the railroad tracks requires a railroad flagger to be present. (c) Workers shall not work nearer than 25 feet to the centerline of any track without proper flag/work protection, unless the track is protected by track bulletin and work has been authorized by COMMISSION. If flag/work protection is provided, every contractor employee must know: (1) who the flagger is, and how to contact the flagger, (2) limits of the flag/work protection, (3) the method of communication to stop and resume work, and (4) entry into flag/work limits when designated. Men or equipment entering flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing if working at less than 25 feet from center line of track. (d) When Contractor's employees are required to work on COMMISSION's Property after normal working hours or on weekends, COMMISSION must be notified. A minimum of two employees shall be present during such times. Exhibit B-3 17336.01900\7383695.1 121 (e) Any Contractor employee, its subcontractors employee, agents or invitees under suspicion of being under the influence of drugs or alcohol, or in the possession of same, may be removed from COMMISSION's Property and subsequently released to the custody of a representative of Contractor management. Future access to COMMISSION's Property by that employee will be denied. (f) Any damage to COMMISSION's Property, or any hazard noticed on passing trains, shall be reported immediately to COMMISSION. Any vehicle or machine which may come in contact with a track, signal equipment, or structure (bridge) that could result in a train derailment and shall be reported by the quickest means possible to COMMISSION. (g) All persons are prohibited from having a pocket knife with blade in excess of three (3) inches, firearms or other deadly weapons in their possession while working on COMMISSION's Property. All personnel protective equipment used on COMMISSION's Property shall meet applicable OSHA and ANSI specifications. (h) Contractor shall not pile or store any materials, machinery or equipment closer than 25'-0" to the center line of the nearest COMMISSION track. At highway/rail at-grade crossings materials, machinery or equipment shall not be stored or left temporarily which interferes with the sight distances of motorists approaching the crossing. Prior to beginning work, Contractor will establish any storage area with concurrence of COMMISSION. (i) Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on COMMISSION's Property must be lets inoperable and secured against movement. (j) Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water shall meet all Federal, State and Local regulations. (k) All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or load shall be; 200 KV or below -15 feet, 200 to 350 KV -20 feet, 350 to 500 KV -25 feet, 500 to 750 KV -35 feet, 750 to 1000 KV - 45 feet and if capacity of the line is not known, minimum clearance of 45 feet must be maintained. A person shall be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual means. Exhibit B-4 17336.01900\7383695.1 122 6. Excavation (a) Before excavating, it must be ascertained by Contractor if there are any underground pipe lines, electric wires, or cables, including fiber optic cable systems that either cross or run parallel with the track which are located within the work area. Excavating on COMMISSION's Property could result in damage to buried cables resulting in delay to traffic, including disruption of service to users resulting in business interruptions involving loss of revenue and profits. Before any excavation commences, Contractor must contact COMMISSION. All underground and overhead wires must be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is also Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating. (b) Contractor must cease all work and COMMISSION must be notified immediately before continuing excavation in the area if obstructions are encountered that do not appear on drawings. If the obstruction is a utility, and the owner of the utility can be identified, then the owner should also be notified immediately. if there is any doubt about the location of underground cables or lines of any kind, no work will be performed until the exact location has been determined. There will be no exceptions to these instructions. (c) All excavations shall be conducted in compliance with applicable OSHA regulations and regardless of depth shall be shored where there is any danger to tracks, structures or personnel. (d) Any excavations, holes or trenches on COMMISSION's Property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition that will ensure that COMMISSION employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must he back filled as soon as possible. 7. Hazardous Waste, Substances and Material Reporting If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non- containerized commodity or material, on or adjacent to COMMISSION's Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this Agreement, Contractor shall immediately: (a) notify COMMISSION of such discovery; (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third Exhibit B-5 17336.01900\7383695.1 123 parties; and (c) exercise due care with respect to the release, including the taking of any appropriate measure to minimize the impact of such release. 8. Personal Injury Reporting Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on COMMISSION's Property must be reported immediately (by phone mail if unable to contact in person) to COMMISSION no later than the close of shift on the date of the injury. Exhibit B-6 17336 01900\7383695.1 124 EXHIBIT "C" SCOPE OF WORK Project Plans On Following Pages Exhibit C 17336.01900\7383695.1 125 EXHIBIT "D" INSURANCE STATE is self insured for all policies specified below, except Railroad Protective Liability coverage, and maintains self insured coverage in the amounts required herein. STATE shall require any consultant or contractor entering Property on its behalf ("Contractor") to obtain insurance of the types and in the amounts described below and satisfactory to COMMISSION. A. Commercial General Liability Insurance. Contractor shall maintain occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less then $5,000,000 per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two times the occurrence limit. Such insurance shall: 1. Include COMMISSION and, if required by COMMISSION, the Southern California Regional Rail Authority and their officials, officers, employees, agents, and consultants as insureds with respect to the construction of the Box Springs Overhead Bridge and Property and shall contain no special limitations on the scope of coverage or the protection afforded to these insureds; 2. Be primary with respect to any insurance or self- insurance programs covering COMMISSION, its officials, officers, employees, agents and consultants; and 3. Contain standard separation of insured provisions. B. Automobile Liability. Contractor shall maintain automobile liability insurance with coverage that shall be at least as broad as the latest version of the Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto) in an amount of no less than $1,000,000 per accident for bodily injury and property damage. Such insurance shall: 1. Include COMMISSION, and if required by COMMISSION, the Southern California Regional Rail Authority and their officials, officers, employees, agents, and consultants as insureds with respect to the construction of the Box Springs Overhead Bridge and Property and shall contain no special limitations on the scope of coverage or the protection afforded to these insureds; 2. Be primary with respect to any insurance or self-insurance programs covering COMMISSION, its officials, officers, employees, agents and consultants; and Exhibit D-1 17336.01900\7383695.1 126 3. Contain standard separation of insured provisions. C. Railroad Protective Liability. STATE shall, in connection with any construction activities undertaken with respect to the construction of the Box Springs Overhead Bridge either directly by STATE or by its contractors, acquire and keep in force during the period of such construction, railroad protective liability insurance with a combined single limit of $2,000,000 and a general aggregate of $6,000,000. COMMISSION and Southern California Regional Rail Authority shall be named insureds under such policy, and their officials, officers, employees, agents, and consultants shall be named as additional insureds. STATE shall require Contractor to comply with the foregoing requirements prior to commencing any Project work. D. Workers' Compensation Insurance. Contractor shall maintain workers' compensation insurance with statutory limits and employers' liability insurance with limits of not less than $1,000,000 each accident. E. Pollution Liability Insurance. If Project work involves any hazardous materials, STATE or Contractor shall maintain pollution liability insurance in the amount of no less than one million dollars ( $1,000,000.00). Such insurance, if required, shall include COMMISSION and, if required by COMMISSION, the Southern California Regional Rail Authority and their officials, officers, employees, agents, and consultants as insureds with respect to the construction of the Box Springs Overhead Bridge and Property and shall contain no special limitations on the scope of coverage or the protection afforded to these insureds. The limit of STATE's required coverage is not less than one million dollars ($1,000,000) per occurrence, two million dollars ( $2,000,000) general aggregate. F. Certificates of Insurance. Contractor shall, prior to entering Property, furnish COMMISSION with properly executed certificates of insurance and, if requested by COMMISSION, certified copies of endorsements and policies, which clearly evidence all insurance required under this Agreement and provide that such insurance shall be not canceled, allowed to expire or be materially reduced in coverage, except on thirty (30) days' prior written notice to COMMISSION. The certificate shall also evidence the insurer's knowledge of the proximity of the operations of STATE to active railroad tracks. COMMISSION shall have the sole discretion to determine whether the certificates and endorsements presented comply with the provisions of this Agreement. G. Coverage Maintenance. Contractor shall replace certificates, policies and endorsements for any insurance expiring prior to the termination of this Agreement. Unless otherwise provided for in this Agreement, STATE Exhibit D-2 17336.01900\7383695.1 127 shall maintain such insurance from the execution of this Agreement until the construction of the Box Springs Overhead Bridge are complete and Property fully restored, except as otherwise provided in this Agreement. H. Licensed Insurer. Contractor shall place such insurance with insurers having A.M. Best Company ratings of no less than A:VIII and licensed to do business in California, unless otherwise approved, in writing, by COMMISSION. I. COMMISSION Right to Increase Coverage Limits. Following completion of construction of Project, COMMISSION shall have the right, in its sole discretion, upon prior written notice to STATE, to increase the insurance coverage requirements specified herein. Exhibit D-2 17336 01900\7383695.1 128 EXHIBIT "E" STATE BRIDGE/FALSEWORK CLEARANCE REQUIREMENTS The term "Structure", as used herein, shall refer to the completed Box Springs Overhead Bridge, and all portions thereof, as widened pursuant to Project Plans and Specifications. Temporary construction clearances must be no less than 15 feet measured horizontally from the centerline of the nearest track and 21 feet-6 inches measured vertically from the top of rail of the most elevated track to the bottom of lowest temporary falsework member. Prior to commencement of work, California Public Utilities Commission (CPUC) approval shall be obtained for all work less than the CPUC's minimum requirement of 22 feet, six inches vertically from the top of the most elevated rail to the bottom of the lowest falsework for temporary structures. For the completed Structure, STATE has submitted plans showing the least horizontal distance from the centerline of existing and future tracks to the face of the nearest member of the proposed Structure. The location of the least horizontal distance has been accurately described such that BNSF was able to determine where it will occur in both the horizontal and vertical plane. If the permanent Structure is within 25 feet of the nearest track (or future track), collision walls shall be incorporated into the permanent Structure design according to American Railway Engineering and Maintenance Association Manual of Recommended Practice -Chapter 8 - Article 2.1.5. For the permanent Structure, STATE has submitted plans showing the least vertical clearance from top of the most elevated rail of existing and future tracks to the lowest point of the proposed Structure. A profile of the existing top of rail elevation shall be plotted on the bridge plans. The profile shall extend for 500 feet in each direction of the proposed overpass and a separate profile shall be plotted for each track. If the existing top of rail profile(s) is not uniform such that a sag exists in the vicinity of the proposed Structure, the permanent Structure vertical clearance shall be increased sufficiently to accommodate a raise in the track profile to remove the sag. Prior to beginning construction of the permanent Structure, the top of rail elevations should be checked and verified that they have not changed from the assumed elevations utilized for the design of the bridge. During construction, COMMISSION may require an independent engineering inspector to be present during certain critical activities of Project, including but not limited to: driving foundation piles, erecting falsework, Exhibit E-1 17336 OJ 900\7383695 1 129 construction of shoring and retarnmg walls, placing concrete, placing soil backfill and compaction processes. Nothing in the foregoing shall obligate the COMMISSION to provide such inspector, and COMMISSION shall have no liability for the work completed by or on behalf of STATE, regardless of any inspection or lack thereof provided by or on behalf of COMMISSION. Exhibit E-1 17336.01900\7383695.1 130 Agreement No. 12-31-082-00 EXHIBIT "F" BNSF BRIDGE REQUIREMENTS BRIDGE DESIGN, PLANS & SPECIFICATIONS: Except for the design of temporary falsework and shoring, BNSF review ofthe Structure plans will be limited to the vertical and horizontal clearances, sight distance for existing train signals, foundation dimensions and drainage characteristics as they relate to existing and future tracks. BNSF will not review structural design calculations for the permanent Structure unless a member or members are influenced by railroad live loads. Temporary falsework and shoring plans and calculations must be reviewed and approved by BNSF prior to beginning construction. The Agency shall perform an independent review of the design calculations for temporary falsework and shoring prior to submitting them to BNSF for approval. Temporary construction clearances must be no less than 15 feet measured horizontally from the centerline of the nearest track and 21 feet-6inches measured vertically from the top of rail of the most elevated track to the bottom of lowest temporary falsework member. State regulatory agencies may have more restrictive requirements for temporary railroad clearances. For the permanent Structure, the Agency will submit plans showing the least horizontal distance from the centerline of existing and future tracks to the face of the nearest member of the proposed Structure. The location of the least horizontal distance must be accurately described such that BNSF can determine where it will occur in both the horizontal and vertical plane. If the permanent member is within 25 feet of the nearest track (or future track), collision walls shall be incorporated into the permanent Structure design according to American Railway Engineering and Maintenance Association Manual of Recommended Practice-Chapter 8-Article 2.1.5. For the permanent Structure, the Agency will submit plans showing the least vertical clearance from top of the most elevated rail of existing and future tracks to the lowest point of the proposed Structure. A profile of the existing top of rail elevation shall be plotted on the bridge plans. The profile shall extend for 500 feet in each direction of the proposed overpass and a separate profile shall be plotted for each track. If the existing top of rail profile(s) is not uniform such that a sag exists in the vicinity of the proposed Structure, the permanent Structure vertical clearance shall be increased sufficiently to accommodate a raise in the track profile to remove the sag. Prior to beginning construction of the permanent Structure, the top of rail elevations should be checked and verified that they have not changed from the assumed elevations utilized for the design of the bridge. Prior to issuing any invitation to bid on construction of the Structure, the Agency should conduct a pre-bid meeting where prospective Contractors have the opportunity to communicate with BNSF personnel regarding site specific train speeds, train density, and general safety requirements for men and equipment working near live tracks. Any invitation to bid and specifications for the Structure must be submitted to BNSF for review and approval prior to letting of bids for the Project. BRIDGE CONSTRUCTION: 131 After awarding the bid, but prior to the Contractor entering BNSF's right-of -way or property, the Agency should conduct a pre-construction meeting with BNSF personnel in attendance to reiterate the safety requirements of construction activity adjacent to live tracks. During construction, BNSF may require an independent engineering inspector to be present during certain critical activities of the Project, including but not limited to: driving foundation piles, erecting falsework, construction of shoring and retaining walls, placing concrete, placing soil backfill and compaction processes. The Agency shall reimburse BNSF for all costs of supplemental inspection services. Within 90 days of the conclusion of the Project and final acceptance by BNSF, the Agency will provide BNSF with a complete electronic set of the bridge plans labeled "As Built". Those plans will reflect any and all deviations from the original plans that occurred during construction. The "As Built" plans will be submitted in Micro Station * .dgn electronic format (preferred) or AutoCAD * .dwg format. Electronic plans are to be submitted in the original format used for CAD plan preparation and not converted to another format prior to submission. Actual measured "as constructed" clearances shall be shown as well as depth, size and location of all foundation components. The plans shall show dimensioned locations of existing and relocated utilities. BRIDGE MAINTENANCE: The Agency will be responsible for maintenance and repair of the Structure including the earth retention components, embankment slopes, erosion control, surface drainage, fencing, deck drains, landscaping, paint, walkways, handrails, lighting, and other improvements associated with the Project. Fencing and other pedestrian access controls within BNSF's right-of-way and incorporated into the Project shall be designed and maintained by the Agency. Trespasser control shall be the responsibility of the Agency. Graffiti removal will be the responsibility of the Agency. BRIDGE INSPECTION: The Agency will conduct annual routine structural inspections. In the event of an earthquake, fire, flood, damage from vehicular impacts or other emergent situations, the Agency will provide an immediate inspection by qualified personnel and notify BNSF of damage that may affect safe passage of trains. If necessary the Agency will embargo weights or provide lane closures or other such measures to protect the structural integrity of the Structure such that there can be continuous safe passage of trains until repairs are made. Exhibit F-2 17336.01900\7383695.1 132 BRIDGE ALTERATIONS: Except as provided otherwise by this Agreement, there will be no alterations made to the Structure that will alter the railroad vertical or horizontal clearances provided by the original design. Pipelines will be not be added or attached to the Structure without first submitting plans and calculations to BNSF for review and approval. Exhibit F-3 17336.01900\7383695.1 133 EXHIBIT "H" LEGAL DESCRIPTION OF PROPERTY SUBJECT TO AERIAL AND FOOTING EASEMENT FOR STRUCTURE [Attached behind this page] Exhibit H 17336.01900\7383695.1 135 ATTACHMENT 2 RIVERSIDE COUNTY TRANSPORTATION COMISSION Agreement No. 12-31-084-00 UTILITY AGREEMENT DISTRICT 08 COUNTY Riverside POST MILE 14.2/28.5 EA OF162 FEDERAL AID NUMBER N/A OWNER'S PLAN NUMBER City of Perris Water Improvement Plan FEDERAL PARTICIPATION On the project ~ YES 0 NO On the Utilities 0 YES ~ NO UTILITY AGREEMENT NO. 22709 DATE The Riverside County Transportation Commission (RCTC), in conjunction with Caltrans, is developing plans for improving the existing State Route 215 freeway from Scott Road to Nuevo Road. Proposed construction includes widening Route 215 from two to three lanes in each direction, widening under crossings and replacing the Perris Boulevard overcrossing and the "D" Street On-Ramp overcrossing in the City of Perris. And City of Perris-101 North "D" Street, Perris, CA 92570-1998 • Hereinafter called "OWNER," owns and maintains water pipeline facilities within the limits of RCTC project, which requires relocation of said facility. The facilities in conflict are within Perris Boulevard, which will be widened and rebuilt. It is hereby mutually agreed that: I. WORK TO BE DONE In accordance with Notice to Owner No. 22709 dated March 15, 2012, OWNER shall review, revise, approve and accept RCTC's consultant-prepared utility relocation plans and coordinate its utility relocation construction inspection activities with RCTC's Resident Engineer. RCTC's Contractor shall relocate OWNER's water pipeline facilities as shown on OWNER'S plan "City of Perris Water Improvement Plan" dated 3/13/12, which plans are included in RCTC's Contract Plans for the improvement of State Route 215, EA OF162 which by this reference are made a part hereof. Deviations from the OWNER's plan described above initiated by either the RCTC or the OWNER, shall be agreed upon by both parties hereto under a Revised Notice to Owner. Such Revised Notices to Owner, approved by RCTC and agreed to/acknowledged by the OWNER, will constitute an approved revision of the OWNER's plan described above and are hereby made a part hereof. No work under said deviation shall commence prior to written execution by the OWNER of the Revised Notice to Owner. Changes in the scope of the work will require an amendment to this Agreement in addition to the revised Notice to Owner. OWNER shall have the right to inspect the work by RCTC contractor during construction. Upon completion of the work by RCTC, OWNER agrees to accept ownership and maintenance of the constructed facilities and relinquishes to RCTC ownership of the replaced facilities. It is mutually agreed that RCTC will include the water pipeline relocation work as part of RCTC's highway construction contract. OWNER shall have access to all phases of the work to be performed by RCTC for the purpose of inspection to ensure that the work being performed for the OWNER is in accordance with the specifications contained in the highway contract. Upon completion of the work performed by RCTC, OWNER agrees to accept 136 ownership and maintenance of the constructed facilities and relinquishes to RCTC ownership of the replaced facilities. II. LIABILITY FOR WORK Existing facilities are located in their present position pursuant to rights superior to those of the RCTC and will be relocated at expense. · Ill PERFORMANCE OF WORK OWNER shall have access to all phases of the relocation work to be performed by RCTC, as described in Section I above, for the purpose of inspection to ensure that the work is in accordance with the specifications contained in the Highway Construction Contract; however, all questions regarding the work being performed will be directed to RCTC's Resident Engineer for their evaluation and final disposition. OWNER agrees to perform the herein described work, excepting that work being performed by the RCTC's highway contractor, with its own forces and to provide and furnish all necessary labor, materials, tools, and equipment required therefore, and to prosecute said work diligently to completion. Use of out-of-state personnel (or personnel requiring lodging and meal "per diem" expenses) will not be allowed without prior written authorization by RCTC's representative. Requests for such permission must be contained in OWNER's estimate of actual and necessary relocation costs. Accounting Form FA-1301 is to be completed and submitted for all non-City personnel travel per diem. OWNER shall include an explanation why local employee .or contract labor is not considered adequate for the relocation work proposed. Per Diem expenses shall not exceed the per diem expense amounts allowed under the California Department of Transportation's Department of Personnel Administration travel expense guidelines. Pursuant to Public Works Case No. 2001-059 determination by the California Department of Industrial Relations dated October 25, 2002, work performed by OWNER's contractor is a public work under the definition of Labor Code Section 1720(a) and is therefore subject to prevailing wage requirements. OWNER shall verify compliance with this requirement in the administration of its contracts referenced above. IV. PAYMENT FOR WORK RCTC shall pay its share of the actual and necessary cost of the herein described work within 45 days after receipt of five (5) copies of OWNER's itemized bill, signed by a responsible official of OWNER's organization and prepared on OWNER's letterhead, compiled on the basis of the actual and necessary cost and expense. The OWNER shall maintain records of actual costs incurred and charged or allocated to the project in accordance with recognized accounting principles. It is understood and agreed that RCTC will not pay for any betterment or increase in capacity of OWNER's facilities in the new location and that OWNER shall give credit to RCTC for the accrued depreciation or "used life" of the replaced facilities and for the salvage value of any material or parts salvaged and retained or sold by OWNER. 137 Not more frequently than once a month, but at least quarterly, OWNER will prepare and submit progress bills for costs incurred not to exceed OWNER's recorded costs as of the billing date less estimated credits applicable to completed work. Payment of progress bills not to exceed the amount specified below may be made under the terms of this Agreement. Payment of progress bills which exceed the amount of this Agreement may be made after receipt and approval by RCTC of documentation supporting the cost increase and after an Amendment to this Agreement has been executed by the parties to this Agreement. The OWNER shall submit a final bill to RCTC within 360 days after the completion of the work described in Section I above. If RCTC has not received a final bill within 360 days after notification of completion of OWNER's work described in Section I of this Agreement, and RCTC has delivered to OWNER fully executed Director's Deeds, Consents to Common Use or Joint Use Agreements as required for OWNER's facilities, RCTC will provide written notification to OWNER of its intent to close its file within 30 days and OWNER hereby acknowledges, to the extent allowed by law, that all remaining costs will be deemed to have been abandoned. If RCTC processes a final bill for payment more than 360 days after notification of completion of OWNER's work, payment of the late bill may be subject to allocation and/or approval by the California Transportation Commission. The final billing shall be in the form of an itemized statement of the total costs charged to the project, less the credits provided for in this Agreement, and less any amounts covered by progress billings. However, RCTC shall not pay final bills which exceed the estimated cost of this Agreement without documentation of the reason for the increase of said cost from the OWNER and approval of documentation by RCTC. Except, if the final bill exceeds the OWNER's estimated costs solely as the result of a revised Notice to Owner as provided for in Section I, a copy of said revised Notice to Owner shall suffice as documentation. In either case, payment of the amount over the estimated cost of this Agreement may be subject to allocation and/or approval by the California Transportation Commission. In any event if the final bill exceeds 125% of the estimated cost of this Agreement, an Amended Agreement shall be executed by the parties to this Agreement prior to the payment of the OWNER'S final bill. Any and all increases in costs that are the direct result of deviations from the work described in Section I of this Agreement shall have the prior concurrence of RCTC. Detailed records from which the billing is compiled shall be retained by the OWNER for a period of three years from the date of the final payment and will be available for audit by State and/or Federal auditors. Owner agrees to comply with Contract Cost Principles and Procedures as set forth in 48 CFR, Chapter 1, Part 31, et seq., 23 CFR, Chapter 1, Part 645, et al. If a subsequent State and/or Federal audit determines payments to be unallowable, OWNER agrees to reimburse RCTC upon receipt of RCTC billing. V. GENERAL CONDITIONS All costs accrued by OWNER as a result of RCTC's request of October 27, 2011 to review, study and/or prepare relocation plans and estimates for the project associated with this Agreement may be billed pursuant to the terms and conditions of this Agreement. If RCTC's project which precipitates this Agreement is cancelled or modified so as to eliminate the necessity of work by OWNER, RCTC will notify OWNER in writing and RCTC reserves the right to terminate this Agreement by Amendment. The Amendment shall provide mutually acceptable terms and conditions for terminating the Agreement. 138 All obligations of RCTC under the terms of this Agreement are subject to the passage of the annual Budget Act by the State Legislature and the allocation of those funds by the California Transportation Commission. OWNER shall submit a Notice of Completion to RCTC within 30 days of the completion of the work described herein. Where OWNER has prior rights in areas which will be within the highway right of way where OWNER's facilities will remain on or be relocated on STATE/RCTC highway right of way, a Joint Use Agreement or Consent to Common Use Agreement shall be executed by the parties. It is understood that said highway is a Federal aid highway and accordingly, 23 CFR, Chapter 1, Part 645 is hereby incorporated into this Agreement. THE ESTIMATED COST TO RCTC FOR THE ABOVE DESCRIBED WORK IS $26,760.00 Signatures on Following Page 139 IN WITNESS WHEREOF, the above parties have executed this 1-215 Central Project Utility Agreement as of the day and year first above written. RCTC: By~--~----~~-------------------­ Riverside County Transportation Commission/Date Title-------------- APPROVED AS TO FORM: BEST BEST & KRIEGER LLP By~----~-----------------------­General Counsel Riverside County Transportation Commission APPROVAL RECOMMENDED: By: _______________________ _ Michael W. Parker Date Utility Project Manager Overland, Pacific & Cutler, Inc. 140 OWNER: City of Perris By __________________________ _ NAME Date Title------------ AGENDA ITEM 11 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April 23, 2012 TO: Riverside County Transportation Commission FROM: Patti Castillo, Capital Projects Manager THROUGH: Marlin Feenstra, Project Delivery Director Agreement with HDR Construction Control Corporation for Construction Management Services for the Construction of the SUBJECT: Interstate 215/Biaine Street to Martin Luther King Boulevard Widening Project STAFF RECOMMENDA T/ON: This item is for the Commission to: 1) Award Agreement No. 12-31-057-00 to HDR Construction Control Corporation (HDR) to provide construction management (CM), materials testing, and construction surveying services for the Interstate 21 5/Biaine Street to Martin Luther King Boulevard widening project, in the amount of $218,731, plus a contingency amount of $21,873, for a total amount not to exceed $240,604; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work as may be required for the project; and 4) Forward to the Commission for final action. BACKGROUND INFORMATION: At its February 2012 meeting, the Commission authorized staff to issue a request for qualifications (RFQ) and conduct a selection process for construction management and related services for the 1-21 5/ Blaine Street to Martin Luther King Boulevard widening project in the city of Riverside. Selection Process: A RFQ for CM services, material testing, and construction surveying services for the project was issued on February 13, 2012, with consultant statement of qualifications (SOQ) due March 5. The Commission received five SOQs from Elie Farah, Inc., HDR, RBF/Baker, Southstar Engineering and Consulting, Inc., and Transtech Engineers, Inc. Agenda Item 11 141 An evaluation committee was appointed to review the SOQs received and to conduct firm interviews. The evaluation committee members included representatives from Commission staff, Bechtel, and Caltrans. Based on the committee's evaluation of written SOQ submittals, and pursuant to the terms of the RFQ, the committee shortlisted three of the five offerors and invited those firms to the interview portion of the evaluation and selection process. The short listed firms included: • HDR • RBF/Baker • Southstar Engineering and Consulting, Inc. Interviews with the above-referenced firms were conducted on April 5, and, after final scoring by the evaluation committee, HDR was ranked the most qualified firm under the terms of the RFQ. Staff is currently finalizing negotiation of the scope (including the appropriate level of effort, labor categories/mix, etc.), cost, and schedule proposal from HDR for the project services and is establishing a fair and reasonable price. The initially proposed cost of $218,731 may change slightly, but it will be finalized prior to Commission approval. A pre-award audit of HDR's payroll, including overhead rates, and accounting system is unnecessary, since the total contract value is below $250,000. Recommendation Staff recommends award of Agreement No. 12-31-057-00 to HDR to perform CM services, materials testing, and construction surveying services for the 1-21 5/ Blaine Street to Martin Luther King Boulevard widening project, based on the final project scope and cost included with Attachment 1, in the amount of $218,731, plus contingency amount of $21,873 for unanticipated changes, for a total amount not to exceed $240,604. Financial Information In Fiscal Year Budget: I N/A lvear: ·I FY 2012/13+ Amount: I $240,604 Source of Funds: I STP Budget Adjustment: I N/A GL!Project Accounting No.: I 003035 81302 00000 0000 222 31 81302 Fiscal Procedures Approved: I~~ I Date: I 04/12/12 Attachment: Draft Agreement No. 12-31-05 7-00 Agenda Item 11 142 Agreement No. 12-31-057-00 PROFESSIONAL SERVICES AGREEMENT WITH FHWA FUNDING/ASSISTANCE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH HDR CONSTRUCTION CONTROL CORP. FOR CONSTRUCTION MANAGEMENT SERVICES, MATERIALS TESTING AND CONSTRUCTION SURVEYING FOR THE WIDENING OF THE 1-215 PROJECT, BLAINE STREET TO MARTIN LUTHER KING BOULEVARD 1. PARTIES AND DATE. This Agreement is made and entered into this_ day of , 20_, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and HDR CONSTRUCTION CONTROL CORP. ("Consultant"), a Nebraska corporation. 2. RECITALS. 2.1 On November 8, 1988 the Voters of Riverside County approved Measure A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax (the "tax") to fund transportation programs and improvements within the County of Riverside, and adopting the Riverside County Transportation Improvement Plan (the "Plan"). 2.2 Pursuant to Public Utility Code Sections 240000 et seq., the Commission is authorized to allocate the proceeds of the Tax in furtherance of the Plan. 2.3 On November 5, 2002, the voters of Riverside County approved an extension of the Measure A tax for an additional thirty (30) years for the continued funding of transportation and improvements within the County of Riverside. A source of funding for payment for professional services provided under this Agreement is federal funds from the United States Department of Transportation pursuant to the following project/program [INSERT NAME OF FEDERAL PROGRAM]. This 143 Agreement shall not be deemed to be approved by the Commission until the certifications shown in Exhibits "E" and "F" attached hereto and incorporated herein by reference, are executed and incorporated in this Agreement. 2.4 Consultant desires to perform and assume responsibility for the provision of certain professional services required by the Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing L_INSERT TYPE OF SERVICES__j services to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. 2.5 The Commission desires to engage Consultant to render such services for the L_INSERT NAME OF PROJECT __j project ("Project"), as set forth in this Agreement. 3. TERMS. 3.1 General Scope of Services. Consultant shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise, and incidental and customary work necessary to fully and adequately supply the professional L_INSERT TYPE OF SERVICES__j services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.2 Commencement of Services. L_USE THIS PARAGRAPH IF NOTICE TO PROCEED OR LIMITED NOTICE TO PROCEED HAS BEEN ISSUED__j Commission has authorized Consultant to commence performance of the Services by a "Notice to Proceed" or "Limited Notice to Proceed" dated . Consultant agrees that Services already performed pursuant to the "Notice to Proceed" or "Limited Notice to Proceed" shall be governed by all the provisions of this Agreement, including all indemnification and insurance provisions. L_USE THIS SENTENCE IF NO NOTICE TO PROCEED OR LIMITED NOTICE TO PROCEED HAS BEEN ISSUED__j The Consultant shall commence work upon receipt of a written "Notice to Proceed" or "Limited Notice to Proceed" from Commission. 3.2.1. Pre-Award Audit. As a result of the federal funding for this Project, and to the extent Cal trans procedures apply in connection therewith, issuance of a "Notice to Proceed" may be contingent upon completion and approval of a pre-award audit. Any questions raised during the pre-award audit shall be resolved before the Commission will consider approval of this Agreement. The federal aid provided under this Agreement is contingent on meeting all Federal requirements and could be withdrawn, thereby entitling the Commission to terminate this Agreement, if the procedures are not completed. The RVPUB\HSHANE\770943.1 144 Consultant's files shall be maintained in a manner to facilitate Federal and State process reviews. In addition, the applicable federal agency, or Caltrans acting in behalf of a federal agency, may require that prior to performance of any work for which Federal reimbursement is requested and provided, that said federal agency or Caltrans must give to Commission an "Authorization to Proceed". 3.2.2 Post-Award Audit. In the event that Caltrans authorizes the Commission to issue a "Limited Notice to Proceed", Consultant's cost proposal, set forth in the attached Exhibit "C", will be subject to a post-award audit by Caltrans. Consultant's files shall be maintained in a manner to facilitate Federal and State process reviews. If any post-award audit recommendations are received by Commission from Caltrans, Exhibit "C" shall be adjusted by Consultant and approved by Commission to conform to the audit recommendations. Consultant agrees that individual items of cost may be incorporated into the attached Exhibit "C", based on the interim or post-award audit recommendations of Caltrans, at Commission's sole discretion. Refusal by Consultant to incorporate the interim audit or post-award recommendations of Caltrans will be considered a breach of this Agreement and cause for termination. 3.3 Term. The term of this Agreement shall be from the date first specified above or the date of issuance of the Notice to Proceed by the Commission, whichever occurs first, to L_INSERT ENDING DATE__j, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. 3.4 Commission's Representative. The Commission hereby designates the Commission's Executive Director, or his or her designee, to act as its Representative for the performance of this Agreement ("Commission's Representative"). Commission's Representative shall have the authority to act on behalf of the Commission for all purposes under this Agreement. Commission's Representative shall also review and give approval, as needed, to the details of Consultant's work as it progresses. Consultant shall not accept direction or orders from any person other than the Commission's Representative or his or her designee. 3.5 Consultant's Representative. Consultant hereby designates L_INSERT NAME OR TITLE__j to act as its Representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to act on behalf of Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his or her professional skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. Consultant shall work closely and cooperate fully with Commission's Representative and any other agencies which may have jurisdiction over, or an interest in, the Services. Consultant's Representative shall be available to the RVPUB\HSHANE\770943.1 145 Commission staff at all reasonable times. Any substitution in Consultant's Representative shall be approved in writing by Commission's Representative. 3.6 Substitution of Key Personnel. Consultant has represented to the Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval by the Commission. In the event that the Commission and Consultant cannot agree as to the substitution of the key personnel, the Commission shall be entitled to terminate this Agreement for cause, pursuant to the provisions of Section 3.14. The key personnel for performance of this Agreement are: L_LIST NAMES AND TITLES__j. 3. 7 Preliminary Review of Work. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Agreement shall be submitted to the Commission's Representative in draft form, and the Commission may require revisions of such drafts prior to formal submission and approval. In the event plans and designs are to be developed as part of the Project, final detailed plans and designs shall be contingent upon obtaining environmental clearance as may be required in connection with Federal funding. In the event that Commission's Representative, in his sole discretion, determines the formally submitted work product to be not in accordance with the standard of care established under this contract, Commission's Representative may require Consultant to revise and resubmit the work at no cost to the Commission. 3.8 Appearance at Hearings. If and when required by the Commission, Consultant shall render assistance at public hearings or other meetings related to the Project or necessary to the performance of the Services. However, Consultant shall not be required to, and will not, render any decision, interpretation or recommendation regarding questions of a legal nature or which may be construed as constituting a legal opinion. 3.9 Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Consultant further represents and warrants to the Commission that its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the Commission, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant's errors and omissions. Any employee of RVPUB\HSHANE\770943.1 146 Consultant or its sub-consultants who is determined by the Commission to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the Commission, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project 3.10 Opportunity to Cure. Commission may provide Consultant an opportunity to cure, at Consultant's expense, all errors and omissions which may be disclosed during Project implementation. Should Consultant fail to make such correction in a timely manner, such correction may be made by the Commission, and the cost thereof charged to Consultant 3.11 Inspection of Work. Consultant shall allow the Commission's Representative to inspect or review Consultant's work in progress at any reasonable time. 3.12 Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term set forth in Section 3.3, the Commission shall give Consultant a written Notice of Final Acceptance. Upon receipt of such notice, Consultant shall incur no further costs hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily completed all Services required under the terms of this Agreement In the event copyrights are permitted under this Agreement, then in connection with Federal funding, it is hereby acknowledged and agreed that the United States Department of Transportation shall have the royalty-free non-exclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for governmental purposes. 3.13 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cai/OSHA requirements, and shall give all notices required by law. For example, and not by way of limitation, Consultant shall keep itself fully informed of and in compliance with all implementing regulations, design standards, specifications, previous commitments that must be incorporated in the design of the Project, and administrative controls including those of the United States Department of Transportation. Compliance with Federal procedures may include completion of the applicable environmental documents and approved by the United States Department of Transportation. For example, and not by way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or published Record of Decision may be required to be approved and/or completed by the United States Department of Transportation. For Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, RVPUB\HSHANE\770943.1 147 employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.14 Termination. 3.14.1 Notice; Reason. Commission may, by written notice to Consultant, terminate this Agreement, in whole or in part, at any time by giving written notice to Consultant of such termination, and specifying the effective date thereof ("Notice of Termination"). Such termination may be for Commission's convenience or because of Consultant's failure to perform its duties and obligations under this Agreement, including, but not limited to, the failure of Consultant to timely perform Services pursuant to the Schedule of Services described in Section 3.15 of this Agreement. Consultant may not terminate this Agreement except for cause. 3.14.2 Discontinuance of Services. Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein, and deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 3.14.3 Effect of Termination For Convenience. lfthe termination is to be for the convenience of the Commission, the Commission shall compensate Consultant for Services fully and adequately provided through the effective date of termination. Such payment shall include a prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit on unperformed Services. Consultant shall provide documentation deemed adequate by Commission's Representative to show the Services actually completed by Consultant prior to the effective date of termination. This Agreement shall terminate on the effective date of the Notice of Termination. 3.14.4 Effect of Termination for Cause. If the termination is for cause, Consultant shall be compensated for those Services which have been fully and adequately completed and accepted by the Commission as of the date the Commission provides the Notice of Termination. In such case, the Commission may take over the work and prosecute the same to completion by contract or otherwise. Further, Consultant shall be liable to the Commission for any reasonable additional costs incurred by the Commission to revise work for which the Commission has compensated Consultant under this Agreement, but which the Commission has determined in its sole discretion needs to be revised, in part or whole, to complete the Project because it did not meet the standard of care established in Section 3.9. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 3.14.5 Cumulative Remedies. The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. RVPUB\HSHANE\770943. I 148 3.14.6 Procurement of Similar Services. In the event this Agreement is terminated, in whole or in part, as provided by this Section, the Commission may procure, upon such terms and in such manner as it deems appropriate, services similar to those terminated. 3.14.7 Waivers. Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. 3.15 Schedule and Progress of Services. 3.15.1 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of Commission's Representative, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.15.2 Modification of the Schedule. Consultant shall regularly report to the Commission, through correspondence or progress reports, its progress in providing required Services within the scheduled time periods. Commission shall be promptly informed of all anticipated delays. In the event that Consultant determines that a schedule modification is necessary, Consultant shall promptly submit a revised Schedule of Services for approval by Commission's Representative. 3.15.3 Trend Meetings. Consultant shall conduct trend meetings with the Commission's Representative and other interested parties, as requested by the Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a standard day and time. These trend meetings will encompass focused and informal discussions concerning scope, schedule, and current progress of Services, relevant cost issues, and future Project objectives. Consultant shall be responsible for the preparation and distribution of meeting agendas to be received by the Commission and other attendees no later than three (3) working days prior to the meeting. 3.15.4 Progress Reports. As part of its monthly invoice, Consultant shall submit a progress report, in a form determined by the Commission, which will indicate the progress achieved during the previous month in relation to the Schedule of Services. Submission of such progress report by Consultant shall be a condition precedent to receipt of payment from the Commission for each monthly invoice submitted. RVPUB\HSHANE\770943.1 149 3.16 Delay in Performance. 3.16.1 Excusable Delays. Should Consultant be delayed or prevented from the timely performance of any act or Services required by the terms of the Agreement by reason of acts of God or of the public enemy, acts or omissions of the Commission or other governmental agencies in either their sovereign or contractual capacities, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather, performance of such act shall be excused for the period of such delay. 3.16.2 Written Notice. If Consultant believes it is entitled to an extension of time due to conditions set forth in subsection 3.16.1, Consultant shall provide written notice to the Commission within seven (7) working days from the time Consultant knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of Consultant to provide such timely notice shall constitute a waiver by Consultant of any right to an excusable delay in time of performance. 3.16.3 Mutual Agreement. Performance of any Services under this Agreement may be delayed upon mutual agreement of the Parties. Upon such agreement, Consultant's Schedule of Services shall be extended as necessary by the Commission. Consultant shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 3.17 Status of Consultant/Subconsultants. 3.17.1 Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and not as an employee, agent or representative of the Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries and other amounts due such personnel in connection with their performance of Services and as required by law. Consultant shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, disability insurance, and workers' compensation insurance. 3.17 .2 Prevailing Wages. By its execution of this Agreement, Consultant certifies that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et ~("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and · "maintenance" projects. If the Services are being performed as part of an applicable "public RVPUB\HSHANE\770943.1 150 works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Copies of the prevailing rate of per diem wages in effect at commencement of this Agreement are on file at the Commission's offices. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.17.3 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub- consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 3.17.4 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein, without the prior written consent of the Commission. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.17.5 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Consultant has, as part of its proposal, identified certain companies/firms that will be subconsultants utilized by Consultant ("Subconsultants") for Project delivery. A list of said Subconsultants may be attached hereto as Exhibit "C" Part 2 and made a part hereof. The Commission hereby approves the use by Consultant of the Subconsultants identified in Exhibit "C" Part 2. In the event and prior to the replacement of any Subconsultant approved herein, the Consultant shall seek and obtain the Commission's written approval. Exhibit "C" Part 2 also sets forth the rates at which each Subconsultant shall bill the Consultant for Services and that are subject to reimbursement by the Commission to Consultant. Additional Direct Costs, as defined in Exhibit "C" Part 1 RVPUB\HSHANE\770943.1 151 shall be the same for both the Consultant and all subconsultants, unless otherwise identified in Exhibit "C" Part 2. Consultant acknowledges that approval of Consultant's utilization of the identified Subconsultants together with the incorporation of Subconsultants' rate schedules and cost proposals into this Agreement shall in no way be construed to create any contractual relationship between any Subconsultant and the Commission. The Subconsultant rate schedules and cost proposals contained herein are for accounting purposes only. In the event that any Subconsultant shall bring any action, claim or proceeding purporting to enforce any right purportedly arising under this Agreement, the Consultant shall be responsible for the Commission's reasonable legal fees without regard to the merits of any such claim. 3.18 Ownership of Materials/Confidentiality. 3.18.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission's sole risk. 3.18.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media ("Intellectual Property") prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. RVPUB\HSHANE\770943.1 152 The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 3.18.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.19 Indemnification. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold Commission, its directors, officials, officers, employees, consultants, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to RVPUB\HSHANE\770943.1 153 alleged negligent acts, omissions, or willful misconduct of Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of consequential damages, expert witness fees, and attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Commission, its directors, officials, officers, employees, consultants, agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against Commission or its directors, officials, officers, employees, consultants, agents, or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse Commission and its directors, officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses and costs, including reasonable attorney's fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Commission, its directors, officials officers, employees, consultants, agents, or volunteers. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. Consultant's obligations as set forth in this Section 3.19 shall survive expiration or termination of this Agreement. 3.20 Insurance. 3.20.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.20.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 ); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) if Consultant has employees, Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. RVPUB\HSHANE\770943.1 154 (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of $1,000,000 per accident for bodily injury or disease. 3.20.3 Professional Liability. L_INCLUDE ONLY IF APPLICABLE- DELETE OTHERWISE_J Consultant shall procure and maintain, and require its sub- consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an amount not less than $2,000,000 L_._INCREASE IF NECESSARY -OTHERWISE LEAVE AS IS AND DELETE THIS NOTE_J per claim. 3.20.4 Aircraft Liability Insurance. Prior to the direct or indirect use of any civil aircraft to provide Services under this Agreement, Consultant shall procure and maintain, or cause to be procured and maintained, aircraft liability insurance or equivalent form, with a single limit of not less than $5,000,000 per each occurrence. Such insurance shall include coverage for owned, hired and non-owned aircraft and passengers, and shall name, or be endorsed to name, the Commission, its directors, officials, officers, employees consultants and agents as additional insureds with respect to the Services or operations performed by or on behalf of the Consultant. 3.20.5 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (A) General Liability. The general liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the Services or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or RVPUB\HSHANE\770943.1 155 borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (C) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the Commission; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the Commission, its directors, officials, officers, employees and agents. 3.20.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured. retentions as respects the Commission, its directors, officials, officers, employees and agents; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.20.7 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the Commission, its directors, officials, officers, employees, and agents. 3.20.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 3.20.9 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved RVPUB\HSHANE\770943. I 156 by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.20.1 0 Other Insurance. At its option, the Commission may require such additional coverage(s), limits and/or the reduction of deductibles or retentions it considers reasonable and prudent based upon risk factors that may directly or indirectly impact the Project. In retaining this option Commission does not warrant Consultant's insurance program to be adequate. Consultant shall have the right to purchase insurance in addition to the insurance required in this Section. 3.21 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.22 Fees and Payment. 3.22.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall be on the basis of direct costs plus a fixed fee as further set forth in Exhibit "C" and shall not exceed the maximum amount of L_INSERT WRITTEN DOLLAR AMOUNT __j ($L_INSERT NUMERICAL DOLLAR AMOUNT __j) without written approval of Commission's Executive Director ("Total Compensation"). 3.22.2 Payment of Compensation. Consultant shall submit a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the Statement. Charges specific to each Milestone listed in the Schedule of Services shall be listed separately on an attachment to each statement. Each statement shall be accompanied by a monthly progress report and spreadsheets showing hours expended for each task for each month and the total Project to date. Each statement shall include a cover sheet bearing a certification as to the accuracy of the statement signed by the Consultant's Project Manager or other authorized officer. RVPUB\HSHANE\770943.1 157 3.22.3 Additional Work. Any work or activities that are in addition to, or o.therwise outside of, the Services to be performed pursuant to this Agreement shall only be performed pursuant to a separate agreement between the parties. Notwithstanding the foregoing, the Commission's Executive Director may make a change to the Agreement, other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a change which is "outside the scope" of the Agreement; in other words, work which should not be regarded as having been fairly and reasonably within the contemplation of the parties when the Agreement was entered into. An example of a change which is not a Cardinal Change would be where, in a contract to construct a building there are many changes in the materials used, but the size and layout of the building remains the same. Cardinal Changes are not within the authority of this provision to order, and shall be processed by the Commission as "sole source" procurements according to applicable law, including the requirements of FTA Circular 4220.1 D, paragraph 9(f). (a) In addition to the changes authorized above, a modification which is signed by Consultant and the Commission's Executive Director, other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable adjustment to the Agreement price, delivery schedule and other terms resulting from the issuance of a Change Order, {2) reflect definitive letter contracts, and (3) reflect other agreements of the parties modifying the terms of this Agreement ("Bilateral Contract Modification"). (b) . Consultant shall not perform, nor be compensated for any change, without written authorization from the Commission's Executive Director as set forth herein. In the event such a change authorization is not issued and signed by the Commission's Executive Director, Consultant shall not provide such change. 3.22.4 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission's Representative. 3.23 Prohibited Interests. 3.23.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the Commission shall have the right to rescind this Agreement without liability. 3.23.2 Conflict of Interest. For the term ofthis Agreement, no member, officer or employee of the Commission, during the term of his or her service with the Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. RVPUB\HSHANE\770943. I 158 3.23.3 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee's regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 3.23.4 Covenant Against Contingent Fees. As required in connection with federal funding, the Consultant warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Commission shall have the right to terminate this Agreement without liability pursuant to Section 3.14, or at its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 3.23.5 Covenant Against Expenditure of Local Agency, State or Federal Funds for Lobbying. [__INCLUDE ONLY IF FEDERAL FUNDING WILL EXCEED $100,000, OTHERWISE DELETE THIS SECTION 3.23.5 AND EXHIBIT "J"__j The Consultant certifies that to the best of his/ her knowledge and belief no state, federal or local agency appropriated funds have been paid, or will be paid by or on behalf of the Consultant to any person for the purpose of influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the award of any state or federal contract, grant, loan, or cooperative agreement, or the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement. a) If any funds other than federal appropriated funds have been paid, or will be paid to any person for the purpose of influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this Agreement, the Consultant shall complete and submit the attached Exhibit "J", Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with the attached instructions. b) The Consultant's certification provided in this section is a material representation of fact upon which reliance was placed when this Agreement was entered into, and is a prerequisite for entering into this Agreement pursuant to Section 1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the RVPUB\HSHANE\770943.1 159 disclosure and certification requirements set forth in Section 1352, Title 31, US. Code may result in a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. c) The Consultant also agrees by signing this Agreement that he/she shall require that the language set forth in this Section 3.23.5 be included in all Consultant subcontracts which exceed $100,000, and that all such subcontractors shall certify and disclose accordingly. 3.24 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under this Agreement. As required in connection with federal funding, the Federal Acquisition Regulations in Title 48, CFR 31 shall be the governing factors regarding allowable elements of cost. All such records shall be clearly identifiable. Consultant shall allow a representative of the Commission, the State, the State Auditor, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) during normal business hours to examine, audit, and make transcripts or copies of any and all ledgers and books of account, invoices, vouchers, canceled checks, and any other records or documents created pursuant to this Agreement. All such information shall be retained by Consultant for at least three (3) years following termination of this Agreement. Following final settlement of the contract accounts with the United States Department of Transportation under this Agreement, such records and documents may be microfilmed at the option of the Commission, but in any event shall be retained for said three (3) year period after processing of the final voucher by the United States Department of Transportation. a) The Consultant also agrees to comply with Federal procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. b) Any costs for which payment has been made to the Consultant that are determined by subsequent audit to be unallowable under 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31 et seq. or under 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, are subject to repayment by the Consultant to the Commission. 3.25 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 3.26 Right to Employ Other Consultants. Commission reserves the right to employ other consultants in connection with the Project. RVPUB\HSHANE\770943.1 160 3.27 Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 3.28 Attorneys' Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys' fees and, all other costs of such actions. 3.29 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.30 Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.31 Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: CONSULTANT: Attn: ______ _ COMMISSION: Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.32 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties' understanding concerning the performance of the Services. 3.33 Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. · 3.34 Entire Agreement. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof and supersedes all prior negotiations, agreements or understandings. RVPUB\HSHANE\770943. I 161 3.35 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.36 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant 3.37 Provisions Applicable When Federal Department of Transportation Funds Are Involved. When funding for the Services provided by this Agreement are provided, in whole or in part, from the United States Department of Transportation, Consultant shall also fully and adequately comply with the provisions included in Exhibit "D" (Federal Department of Transportation Requirements and California Department of Transportation (Caltrans) DBE program requirements) attached hereto and incorporated herein by reference. 3.38 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, shall survive any such expiration or termination. 3.39 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.40 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. RVPUB\HSHANE\770943.1 162 3.41 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.42 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.43 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any ofthe terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. [Signatures on following page) RVPUB\HSHANE\770943.1 163 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT WITH FHWA FUNDING/ASSISTANCE IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY CONSULTANT TRANSPORTATION COMMISSION (INSERT NAME OF CONSULTANT] By: By: (INSERT NAME] Signature Chair Name [NOT NEEDED IF APPROVED BY COMMISSION] Title By: Anne Mayer Executive Director Approved as to Form: ATTEST: By: By: Best, Best & Krieger LLP General Counsel Its: Secretary RVPUB\HSHANE\770943. I 164 RVPUB\HSHANE\770943.1 EXHIBIT "A" SCOPE OF SERVICES L_INSERT __j Exhibit A 165 EXHIBIT "A" SCOPE OF WORK RCTC is seeking proposals from qualified engineering professionals to provide Construction Management (CM), Materials Testing, and Construction Surveying Services for construction of the 1-215 Widening between Blaine Street and Martin Luther King Blvd, located in the City of Riverside, CA. Services will include pre-construction plans, specification, and estimate (PS&E) review, construction bid analysis, and document review prior to construction contract award; construction inspection; surveying and materials testing; contractor interface and contract administration; office engineering; claims analysis, and other assorted duties as appropriate for construction management. The project's final design is scheduled for completion by summer 2012. Background Information The following infonnation will be provided on CD to assist the Offeror in understanding the scope of the project. To purchase a CD for $5.00, if picked up at the Commission Offices, or $10.00, if it is mailed to the Offeror, send a request to Matthew Wallace at mwallace@rctc.org. 1. Draft Preferred Alternative Project Report 2. Strip Map of proposed improvement Construction Schedule (Tentative) The anticipated construction schedule for the project is shown below: Start Construction Project Duration Construction Cost (Tentative) The anticipated cost ofthe work is $1.5 Million Performance Requirements October 2012 60 Working Days Construction Management: OFFEROR shall furnish a Project Manager/Resident Engineer to coordinate OFFEROR operations with COMMISSION. The Project Manager shall be responsible for all matters related to OFFEROR personnel and operations. A Resident Engineer shall be assigned as a single point of contact to direct and coordinate construction activities under this agreement. Other Assistant Resident Engineers may be assigned to specific project responsibilities as needed. The Resident Engineer shall be a Civil Engineer, registered in the State of California. The Resident Engineer shall be in responsible charge of construction activity within the Project. RVPUB\HSHANE\770943.1 166 The number of OFFEROR personnel assigned to the project will vary throughout the duration ofthe agreement. OFFEROR personnel will be assigned, in varying levels of responsibility, as needed by the OFFEROR to meet the project schedule, project requirements, and construction activities. Resumes of personnel shall be submitted to COMMISSION for review and approval prior to assignment to the Project. COMMISSION and OFFEROR will jointly determine the quality and quantity of services that are required by OFFEROR personnel. Personnel selected for assignment by OFFEROR shall be made available for personal interviews prior to acceptance by COMMISSION. If, in the opinion of COMMISSION, an individual lacks adequate experience, the individual may be rejected or may be accepted on a trial basis until such time the individual's ability to perform the required services has been demonstrated. If, at any time, the performance of OFFEROR personnel is unsatisfactory to COMMISSION, COMMISSION may release him/her by written notice and may request another qualified person be assigned. If OFFEROR personnel are on leave of absence, the Project Manager shall provide approved, equally qualified replacement personnel until the assigned personnel returns to the Project. The typical workday includes all hours worked by the construction Contractor. If necessary, overtime for OFFEROR personnel may be required. The construction Contractor's operations may be restricted to specific hours during the week, which shall become the normal workday for OFFEROR personnel. The Project Manager, with concurrence from COMMISSION, shall have the authority to increase, decrease, or eliminate OFFEROR personnel work hours dependent on the schedule and requirements of the construction Contractor. All overtime required by OFFEROR personnel shall be approved and authorized by COMMISSION prior to each occurrence. OFFEROR personnel shall be knowledgeable of and comply with all applicable local, state, and federal regulations. OFFEROR personnel shall cooperate and consult with COMMISSION, State, and City officials during the course of the Project. OFFEROR personnel shall perform duties as may be required to assure that construction is being performed in accordance with the Project plans and specifications. OFFEROR personnel shall keep accurate and timely records and document all work performed by the Contractor and OFFEROR. OFFEROR shall monitor for Contractor's compliance with the labor standards provisions of the projects and the related wage determination decisions of the Secretary of Labor. OFFEROR personnel shall assist COMMISSION and local agencies in obtaining compliance with the safety and accident prevention provisions of the projects. Local agencies will retain jurisdictional control for traffic control. All services required hereunder shall be performed in accordance with California Department of Transportation guidelines, regulations, policies, procedures, manuals, and RVPUB\HSHANE\770943.1 167 standards, except as noted in the special provisions. Materials Testing: The number of field testing personnel assigned to the project will vary throughout the duration of the construction contract. OFFEROR personnel will be assigned as needed by the Resident Engineer to meet the schedule of the construction contractor. At least one field technician will be required throughout the construction contract period. At times, additional technicians may be required to provide support for on-going construction activities. The duration of assignments could vary from a minimum of a few days to the full term of the project. OFFEROR personnel will be available within two (2) days ofwritten notification by COMMISSION. The COMMISSION intends to maintain a consistency of material testing quality throughout each phase of each project. OFFEROR is therefore encouraged to provide, where ever and whenever possible, the same field personnel for the duration of construction of the project. On days when work is not performed by the construction contractor, such as rainy or unsuitable weather days, OFFEROR will not provide services unless authorized by the COMMISSION Construction Manager. Resumes of materials testing personnel shall be submitted to COMMISSION for review and approval prior to assignment to the Project. If, at any time, the level of performance of any testing personnel is below expectations, COMMISSION may release that field person and request that another be assigned as needed. If a member of OFFEROR's personnel is on a leave of absence, OFFEROR's project manager will provide an equally qualified replacement employee until the original member returns to work. The replacement employee will meet all the requirements of a permanently assigned employee. All personnel shall be knowledgeable of, and comply with, all applicable local, Caltrans, and federal regulations; cooperate and consult with COMMISSION and local agency officials during the course ofthe agreement; and perform other duties as may be required to assure that the construction is being performed in accordance with the project plans and specifications. OFFEROR's personnel will keep records and document the work as directed by the Resident Engineer. OFFEROR personnel shall assist COMMISSION and local agencies in obtaining compliance with the safety and accident prevention provisions of the projects. Local agencies will retain jurisdictional control for traffic control. All services required hereunder will be performed in accordance with Caltrans regulations, policies, procedures, manuals, and standards. RVPUB\HSHANE\770943.1 168 Construction Surveying: OFFEROR will furnish a surveying crew to perform construction surveys for the project. The same survey crew will provide services throughout the duration of the construction contract. OFFEROR personnel will be assigned as needed by the Resident Engineer to meet the schedule of the construction contractor. It is the intent of COMMISSION to maintain a consistency of construction survey quality throughout each phase of each project. Therefore, OFFEROR is encouraged to provide the same field personnel for the duration of construction. It is important that the Field Party Chief(s) assigned to a project be completely familiar with the survey requirements and the assignments for the project. Construction surveying will not be performed when conditions such as weather, traffic, and other factors prevent safe and efficient operation. Resumes of OFFEROR personnel and certification must be submitted to COMMISSION for review. OFFEROR personnel must be approved by COMMISSION prior to assignment to a project. COMMISSION and OFFEROR will have the responsibility of determining the quality and quantity of work performed by OFFEROR personnel. If, at any time, the level of performance by OFFEROR personnel is below expectations, COMMISSION may release the survey crew member and request that another be assigned. If OFFEROR's survey crew personnel assigned to the project is on a leave of absence, the Project Manager will provide an equally qualified replacement(s) until the original employee(s) returns to work. The replacement will be required to meet all the requirements ofthe permanently assigned employee. OFFEROR personnel will: • Be knowledgeable of, and comply with all, applicable local, Caltrans, state, and federal regulations. • Cooperate and consult with COMMISSION officials during the course of the agreement. • Perform duties as may be required to assure construction is performed in accordance with the project plans and specifications. • Keep records and document work as directed by the Resident Engineer. All services required hereunder will be performed in accordance with Caltrans regulations, policies, procedures, manuals, and standards. Duties and Responsibilities 1. Pre-construction Services a. Plan Review R VPUB\HSHANE\ 770943. I 169 OFFEROR shall review construction contract documents prior to construction. Tasks include review of plans, specifications, technical reports, Resident Engineer's pending files, and associated items in order to verify completeness and consistency throughout the Project. At minimum, OFFEROR shall check for quantity discrepancies, potential conflicts, constructability, and consistency between plans, specifications and pay items. b. Schedule OFFEROR shall review the proposed Project schedule, compare it to the Project plans and specifications, and provide recommendations to COMMISSION, as appropriate, to ensure efficiency of Contractor and OFFEROR operations and safe and expeditious completion ofthe Project. c. Budget OFFEROR shall review the Project estimate and provide recommendations to COMMISSION, as appropriate, to ensure efficient utilization of funds and control of project costs. 2. Bid Process a. Bid Documents OFFEROR shall assist COMMISSION, as requested, with the following tasks: b. 1) 2) 3) 4) Review bid questions and draft responses Draft addenda to the bid documents Review of bidder's documents Prepare bid tabulation Pre-construction Meetings OFFEROR shall assist COMMISSION in conducting one or more, pre-construction meetings with all involved parties on the Project. Parties may include, but are not limited to, the Contractor, the design engineer, Caltrans, cities, and utility companies. c. Contract A ward OFFEROR shall assist COMMISSION, as requested, with the following tasks: 1) Review bid for completeness and responsiveness 2) Perform bid analysis 3) Develop contractor payment schedules, and other procedural items. 4) Check Contractor references, licenses, insurance, and sureties. 5) Coordinate with prospective Contractor for award of construction contract( s ). RVPUB\HSHANE\770943. I 170 All processes will be consistent with procedures outlined by the California Department of Transportation for Special Funded Programs and relevant Commision procedures. 3. Project Administration a. OFFEROR shall administer project construction contract using Caltrans Construction Manual as a guideline. b. OFFEROR shall conduct regular project coordination meetings with Contractor, COMMISSION, local agenc-ies, and design engineer, as appropriate. c. OFFEROR shall prepare Contractor progress payments and maintain payment records and supporting documentation. All progress payments shall be reviewed by COMMISSION for approval. d. OFFEROR shall establish and maintain Project records. Project record keeping shall include, but are not limited to the following: correspondence, memoranda, contract documents, change orders, claims, COMMISSION and engineer directives, meeting minutes, shop drawings, materials records, survey data, supplementary drawings, and progress payments. OFFEROR shall maintain a record of the names, addresses, and telephone and fax numbers ofthe Contractor, subcontractors, and principal material suppliers. e. OFFEROR shall establish and maintain a filing system for each Project using the Caltrans Construction Manual as a guideline. f. OFFEROR shall monitor Contractors' construction schedules on an ongoing basis and alert COMMISSION to conditions that may lead to delays in completion of the Project. g. OFFEROR shall prepare and submit a Monthly Project Report (MPR). The MPR shall include construction activity, accomplishments, and status of Requests for Information (RFis), submittals, current issues, Contract Change Orders (CCOs) and current project budget and schedule. h. OFFEROR shall review and ensure compliance with environmental requirements. 1. OFFEROR shall ensure that the Project meets all provisions of the Caltrans Quality Assurance Program Manual. J. OFFEROR shall review Contractors' certified payroll records and assist COMMISSION with labor compliance. k. OFFEROR shall ensure that the Project meets all provisions of the Storm Water Pollution Prevention Plan (SWPPP). RVPUBIHSHANEI 770943. I 171 I. OFFEROR shall assure that the Project meets all applicable regulations of the Air Quality Management District (AQMD). 4. Construction Coordination a. OFFEROR shall provide a qualified Resident Engineer and other qualified assistant Resident Engineers, as needed to effectively manage the Project. b. OFFEROR Resident Engineer shall act as a single point of contact between Contractor, COMMISSION, OFFEROR's construction surveyor, OFFEROR's materials inspector, and utility companies. OFFEROR may, when requested by COMMISSION, act as point of contact between design engineers, Caltrans, cities, and the public. c. OFFEROR shall maintain regular contact with COMMISSION's Construction Manager. d. OFFEROR shall review Project plans and special provisions for possible errors and deficiencies prior to construction of any specific element and report such findings to COMMISSION. Should COMMISSION determine that changes are necessary, OFFEROR shall prepare CCOs and supporting transmittal memoranda in accordance with construction contract documents and Commission procedures. e. OFFEROR shall monitor, coordinate, and track construction progress to ensure the Project proceeds on schedule and according to the order of work required in the plans and special provisions. OFFEROR shall expedite work, as required, to maintain schedule. f. OFFEROR shall coordinate review of shop drawings and Requests for Information (RFI) with the Construction Manager. OFFEROR shall log and track all submittals and RFis. g. OFFEROR shall provide a qualified SWPPP coordinator who shall review contractor- prepared Storm Water Pollution Prevention Plans (SWPPP) and coordinate approval with COMMISSION. OFFEROR shall cooperate with Caltrans and monitoring agency during inspections and field reviews. h. OFFEROR shall coordinate the implementation of any changes with the Construction Manager and the design engineer. 1. OFFEROR shall review and approve Traffic Control Plans and forward to COMMISSION as necessary. J. OFFEROR shall coordinate all Project construction activities with other on-going projects within and adjacent to the Project limits. RVPUB\HSHANE\770943.1 172 5. Construction Inspection a. OFFEROR shall coordinate all required inspections necessary for the Project. OFFEROR shall ensure that appropriate City, and local agency are notified and present as required throughout the Project. OFFEROR shall notify COMMISSION immediately regarding any directives, recommendations, notices, etc. received from agencies other than COMMISSION. b. OFFEROR shall perform and document daily on-site inspections of the progress and quality of construction to determine if the work being performed is in general conformance with the contract documents, all applicable laws, codes, and ordinances. c. OFFEROR shall exercise reasonable care and diligence to discover and promptly replace, correct, and/or mitigate all defects or deficiencies in the materials or workmanship used in the Project. Any such deficiencies and their resolution shall be reported to COMMISSION d. OFFEROR personnel assigned to the Project shall be thoroughly familiar with Caltrans Special Provisions, Standard Specifications and Caltrans Standard Plans. OFFEROR personnel shall have the ability to read and interpret construction plans and specifications. OFFEROR personnel shall also have knowledge of State of California Construction Safety Orders (CaiOSHA) and traffic control practices as specified in the Work Area Traffic Control Handbook (WATCH). In addition, OFFEROR personnel shall be familiar with the construction requirements of the Caltrans Storm Water Pollution Prevention Program. e. Assignments to be performed by OFFEROR personnel shall include, but are not limited to, the following: 1) Inspection of subgrade, aggregate base and paving, signing and striping, and related construction activities. Work shall include checking grade and alignment, construction traffic control, and any other duties that may be required to determine that construction of the Project is being performed in accordance with the contract documents. 2) Identifying actual and potential problems associated with the Project and recommending sound engineering solutions. 3) Maintaining awareness of safety and health requirements. Monitoring Contractors' compliance with applicable regulations and construction contract provisions for the protection of the public and Project personnel. 4) Preparing complete and accurate daily reports, engineering calculations, project records, payment quantity documents, reports, and correspondence related to Project activities. Documents shall be sufficient to provide actual RVPUB\HSHANE\770943.1 173 cost of force account work. 5) Preparing construction sketches, drawings, and cross-sections, as necessary. 6) Keep contemporaneous records of all additions or deviations from the approved plans for preparation of as-built plans. 7) Providing inspections for environmental compliance. 8) Arranging for lane closures in accordance with Caltrans procedures and coordinate any work with the California Highway Patrol. 9) Maintaining awareness of water discharge requirements. Monitoring Contractors' compliance with applicable regulations and construction contract provisions. I 0) Monitoring Contractors' com pi iance with applicable regulations required by AQMD. 11) Other duties as may be required or reasonably requested. 6. Project Support a. Construction Surveys OFFEROR shall perform construction surveying services, field calculations, and home office calculations to support construction of the project. OFFEROR may be requested to review available survey data, construction plans, and right-of-way plans to confirm compatibility and to identify discrepancies prior to and during construction. The Resident Engineer will assign survey work to the CONSULTANT by issuing a "Request for Survey Services". Requests may include, but not be limited to, the following types of surveys and related services: 1) Construction Surveys RVPUB\HSHANE\770943. I OFFEROR shall assist the Resident Engineer in all phases of construction staking and calculations as needed. Survey calculations and adjustments shall be performed with established and computed coordinates based on the California Coordinate System. Cross-section data collection shall be performed by conventional and terrain line interpolation survey methods. 174 Survey data will include topography, cross-section, and other survey data in computer formats compatible with the Caltrans computer survey and design systems. Prepare and maintain survey documents. Survey documents include survey field notes, maps, drawings, and other survey documents. Perform construction staking, including (where required) but not limited to: • Utility locations • Clearing limits • Slope staking • Storm drain, sanitary sewer, and irrigation systems • Drainage structures • Curbs, gutters, and sidewalk • Rough grade • Finish grade Monitor for settlement, if required Global Positioning Satellite (GPS) equipment shall be made available if required by the COMMISSION 2) Right of Way Lines Existing right of way will be established from Caltrans' record information and existing monumentation. • Perpetuate existing monumentation. Includes restoring, renewing, referencing, and resetting existing boundary related monumentation. In addition, stake areas where construction disturbs the existing right of way, preparing and filing required maps and records. • Final monumentation. Includes setting of centerline points of control upon completion of construction. 3) Special Design-Data Surveys Includes drainage, utility, and surveys that might be required for special field studies. b. Materials Testing and Geotechnical Services OFFEROR will provide experienced personnel, equipment, and facilities to perform various construction materials sampling and testing. Laboratory and field materials RVPUB\HSHANE\770943.1 175 testing will be used to ensure that roadway construction work conforms to California State Department ofTransportation (Caltrans) standards, specifications, and special provisions for material quality and workmanship. All field and laboratory testing shall be performed in accordance with California Test Methods. OFFEROR will be responsible for the accuracy and completeness of all test data compilation and results. c. Permits OFFEROR shall review the project for permit compliance and coordinate with COMMISSION and the design engineer to ensure that necessary permits are obtained. OFFEROR shall assist COMMISSION in the coordination, timely processing and verification of approval for all permits. OFFEROR shall maintain permits and permit documentation on site. 7. Cost and Schedule a. OFFEROR shall monitor and track the following: I. Contract pay item quantities and payments 2. Contract change orders 3. Supplemental work items 4. Agency and/or State furnished materials 5. Anticipated extra work balance 6. Contingency balance 7. Project budget b. OFFEROR shall review and monitor Contractor's schedule and inform COMMISSION of any significant changes or deviations in the schedule. c. OFFEROR shall provide and maintain a Project staffing plan of field office personnel. In cooperation with COMMISSION, the staffing plan shall be periodically updated to reflect Project progress and needs. 8. Contract Change Orders and Claims a. OFFEROR shall receive and evaluate requests for changes and/or substitutions by the Contractor. OFFEROR shall coordinate proposed changes with the COMMISSION's Construction Manager and shall prepare and submit Contract Change Orders to the COMMISSION for approval accompanied by OFFEROR's Transmittal Memo describing background information, reasons for the change and proposed method of payment and/or adjustment of contract time. OFFEROR shall convey proposed changes to Caltrans Oversight Engineer, design engineer, or other project stakeholders RVPUB\HSHANE\770943.1 176 as requested by the Commission. b. OFFEROR shall attempt to avoid all unnecessary Contract Change Orders. When a Contract Change Order is necessary, OFFEROR shall consult with COMMISSION prior to its preparation. Unless directed otherwise by COMMISSION, the preferred method of payment for Contract Change Orders should be as follows: I. Agreed Price 2. Adjustment in compensation to a bid item 3. Time and materials or Force Account c. OFFEROR shall attempt to identify all potential claims, track and monitor unresolved claims, and implement a claims avoidance processes. d. OFFEROR shall assist COMMISSION, as requested, in the identification, resolution, and final disposition of claims filed by the Contractor or third parties against COMMISSION or the Project. 9. Safety In addition to the requirements specified elsewhere in this contract, the following shall also apply: a. OFFEROR shall implement and conduct a comprehensive safety program including regular tail-gate safety meetings for OFFEROR'S personnel. OFFEROR shall provide monthly OFFEROR status of safety reports. b. OFFEROR shall comply with State of California Construction Safety Orders and provisions of the Caltrans Construction Manual. c. OFFEROR shall provide appropriate safety training for all OFFEROR field personnel. d. OFFEROR shall provide all necessary safety equipment as required for OFFEROR personnel. 10. Project Close Out a. OFFEROR shall prepare a list of items to be completed and/or corrected by the Contractor for final completion ofthe Project. b. OFFEROR shall review and verify completeness of as-built drawings. c. OFFEROR shall conduct a final walk-through with COMMISSION, Caltrans Contractors, and design engineers. RVPUB\HSHANE\770943.1 177 d. OFFEROR shall prepare final construction reports including the Project Completion Report. e OFFEROR shall prepare and deliver to COMMISSION all project files in accordance with COMMISSION'S and Caltrans policies. f. OFFEROR shall assist COMMISSION and Contractor in obtaining final release of all project permits. DELIVERABLES a. Correspondence to/from Contractor, Resident Engineers' daily reports, Assistant Resident Engineers' daily reports, and extra work diaries. b. Monthly Project Reports. c. RFI submittals and responses d. Monthly Construction Contract progress payments, back-up documentation, and support information as requested. e. Contractor final payment documents, delivered to COMMISSION no later than ten (1 0) working days after acceptance by COMMISSION of the completed construction projects. f. Project Completion Report. g. All project files, project reports, correspondence, memoranda, shop drawings, project logs, change order data, claims and claim reports, and Contractor payment records. h. Certified payrolls and fringe benefit statements for all employees, OFFEROR and Contractor, who are subject to the State and/or Federal prevailing wage rates. i. All material test results will be provided in accordance with the applicable Standard Specifications and Special Provisions, and California Test methods. Failing tests will be immediately reported internally to the Resident Engineer. All test results will be recorded on the appropriate forms. The test documents will be legible and show the identity of the tester where appropriate. A summary sheet containing all results of a particular regime of tests shall be developed and kept current. J. Unless otherwise specified in the survey request, the deliverables shall conform to the following: RVPUB\HSHANE\770943.1 178 1. Survey points, lines, and monuments shall be established, marked, identified, and referenced as required by survey request and requirements herein. 2. Survey notes, drawings, calculations, and other survey documents and information shall be completed as required by the survey request and the requirements herein. k. All original survey documents resulting from this agreement, including original field notes, adjustment calculations, final results, and appropriate intermediate documents, shall be delivered to the Resident Engineer and shall become the property of COMMISSION. A copy of all survey documents furnished by COMMISSION shall be retained by OFFEROR for future reference. When the survey is performed with a total station survey system, the original field notes shall be a hard copy in a readable format of the data (observations) as originally collected and submitted by the survey party. The hard copy shall be signed by the Party Chief. Ifthe Party Chief is not licensed, the person in "responsible charge" will be required to sign. I. Deliverables to the Resident Engineer shall follow the format specified below: • Horizontal Control • Alpha numeric hard copy point listing with adjusted California Coordinate System northing and eastings and the appropriate descriptions. • Vertical Control • Alpha numeric hard copy benchmark listing with adjusted elevations compatible with the design datum. • Topography • Alpha numeric hard copy listing, hard copy drawing, and computer aided drawing and design (CADD) digital drawing. The CADD drawing shall be compatible with the systems utilized by Caltrans. Data collection method used to collect cross-section data and the coding (feature description) of terrain data for cross-sections shall conform to the survey request requirements. Deliverables shall depend on the data collection method as follows: • Conventional Cross -Sections (each cross -section): For each cross-section and alpha numeric listing, a hard copy drawing, and a computer formatted file compatible with the systems utilized by Caltrans. • Terrain Line Interpolation Cross-Section Data (each terrain line interpolation survey): RVPUB\HSHANE\770943.1 Terrain line interpolation cross -sections shall include an alpha numeric listing, a hard copy plan view drawing of the terrain lines, and a computer 179 input file. The computer input file shall be provided in a format compatible with the systems utilized by Caltrans. m. Data Collector Data If specified in the survey request, the raw data from the data collector shall be provided in a format conforming to the survey request requirements. n. Other As specified in the survey request. Equipment and Materials to be provided by Offeror I. OFFEROR will provide office space, telephones, desks, chairs, computers, and appropriate office equipment. One (I) office with a desk, chair, telephone, and computer will be reserved for the COMMISSION. 2. OFFEROR shall provide all necessary equipment including software, materials, supplies, miscellaneous tools, and safety equipment required for its personnel to perform the services accurately, efficiently, and safely. Only those items listed in Attachment B, OFFEROR Cost Proposal, shall be reimbursed by COMMISSION. 3. OFFEROR personnel shall be provided with vehicles suitable for the location and nature of the work involved. Vehicles shall be equipped with flashing yellow lights, either permanently or temporarily affixed. 4. OFFEROR personnel shall be provided with a mobile radio, cellular phone, or other means to assure full-time communication. I fa radio system is to be used, OFFEROR shall provide a base station at the field office. 5. OFFEROR personnel shall be provided with all applicable standard plans, specifications, and other standards as appropriate (see item G below). 6. For Materials Testing, OFFEROR and its staff will be fully equipped at all times to perform the services required, including but not limited to the following: a. An on-site mobile laboratory or laboratory in close proximity to the project will be required. The type and location ofthe lab should be such that it can meet the needs of the project in an efficient, time effective manner. The laboratory is to be fully staffed, equipped, and supplied to conduct all required soils, materials, and concrete breaking tests in a timely manner. b. OFFEROR's personnel shall be provided with radios, mobile phones, or other means to assure full-time communication. OFFEROR vehicles will have flashing lights, visible from the rear, with a driver control switch. Vans without side RVPUB\HSHANE\770943.1 180 windows will not be used. COMMISSION furnished magnetic logos will be affixed to each side of the vehicle at all times the vehicle is being used for the work under this agreement. Each vehicle shall be fully contained with all necessary equipment and supplies necessary to perform the field sampling and tests required. c. Field personnel shall be provided with all necessary safety equipment to permit work to be performed safely and efficiently within operating highway and construction zone environments. d. All equipment shall be calibrated per Section 3-10 and 3-11 ofCaltrans' Quality Assurance Program Manual. 7. For construction surveying, OFFEROR and staff shall have adequate equipment and supplies to complete the required survey work. Equipment and supplies shall, include, but not be limited to: a. Survey vehicles Survey vehicles will be suitable to perform the required work encountered on the project. Vehicles shall be fully equipped with all necessary tools, instruments, supplies, and safety equipment required to perform the work accurately, efficiently, and safely. Vehicles shall be equipped with a flashing yellow beacon light. b. Data Processing Systems Data processing systems shall include hardware and software to: • Performing survey and staking calculations from the design plans and specifications; • Reduce survey data collected with conventional and total station survey systems; • Perform network adjustments for horizontal and vertical control surveys; and • Format survey data to be compatible with the Caltrans computer survey and data system. c. Drafting equipment and supplies. d. Digital calculators. e. Hand tools as appropriate for the requested survey work. f. Traffic cones (minimum 25). Traffic cones shall be 28 inches in height (minimum). RVPUB\HSHANE\770943.1 181 g. Traffic control devices as required to perform the requested survey work. Traffic control devices include signs, sign bases, flags, and hand held signs. h. Leveling instruments and equipment: • Self-leveling level. Precision: standard deviation in one mile of double run leveling 0.005 feet or less. • Suitable level rods for the work to be performed. 1. Distance measuring instruments and equipment: • Electronic distance measurer (EDM). Precision: standard deviation 3 mm plus 3 PPM, or less; Range: Minimum one mile under average atmospheric conditions. • Prisms, sufficient to perform the required work. • Tapes; steel, cloth. J. Angle measuring instruments and equipment: • Theodolite for non-control surveys; Precision: direct circle reading to three seconds, or equivalent, horizontal and vertical. • Targets as required to perform the work. k. When required for efficient survey operations, total station survey systems consisting of an electronic angle measuring instrument, EDM, and electronic data collector shall be provided. The angle measuring instruments and EDM shall conform to the requirements for the equipment previously listed. I. Radio or cellular communications equipment for communication between field office and field crews. m. Caltrans manuals, standards, forms, and other policies and procedures to be followed to perform the required work. n. Lighting may be required for nighttime survey work. Materials to be Furnished by Commission I. COMMISSION will provide copies of all Project construction documents including plans, special provisions, reports, designer prepared Resident Engineer files, and contracts. 2. COMMISSION will provide copies of all previously secured permits and Project authorizations. RVPUB\HSHANE\770943.1 182 3. Appropriate forms for recording test data in accordance with Caltrans practices and procedures outlined in the "Manual of Test". 4. Magnetic COMMISSION logos to be affixed to OFFEROR vehicles. Standards All construction inspection, surveys, materials sampling and testing, and contract administration shall be in accordance with the Project bid documents, special provisions, plans, and current Caltrans Manuals including: 1. Construction Manual and its revisions 2. Quality Assurance Program Manual 3. Manual ofTraffic Controls for Construction and Maintenance Work Zones 4. Caltrans Standard Specifications and Standard Plans 5. Caltrans Storm Water Pollution Prevention Plan (SWPPP) and Water Pollution Control Program (WPCP) Preparation Manual 6. Manual ofTest (3 volumes) 7. Survey Manual 8. District 8 Standard Staking Procedures Manual Work not covered by the manuals shall be performed in accordance with accepted professional standards. Surveys performed by OFFEROR shall conform to the requirements of the Land Surveyor's Act. In accordance with the Land Surveyor's Act, "responsible charge" for the work shall reside with the Licensed Land Surveyor or a pre-January 1, 1982, Registered Professional Civil Engineer in the State of California. Unless otherwise specified in the survey request, control surveys shall conform to second order (modified) accuracy standards as specified in the Caltrans "Survey Manual". Additional standards for specific survey work may be included in the applicable request for survey. Such standards supplement the standards specified herein. If additional standards conflict with the standards specified herein, the "Survey Request's" standard shall govern. The COMMISSION will decide all questions which may arise as to the quality or acceptability of deliverables furnished and work performed for this agreement. Any RVPUB\HSHANE\770943.1 183 OFFEROR employee who does not perform adequately will be replaced if directed by the COMMISSION Construction Manager. Availability and Work Hours The typical workday includes all hours worked by COMMISSION's construction Contractor. The construction Contractor's operations may be restricted to specific hours during the week, which will become the normal workday for OFFEROR's personnel. On days when work is not performed by the construction contractor, such as rainy or unsuitable weather days, OFFEROR services will not be provided unless authorized by the COMMISSION Construction Manager. Unless otherwise directed by COMMISSION, the normal work week will consist of 40 hours. From time to time, overtime may be required. However, overtime will be worked only when approved in writing by COMMISSION. Limitations to Authority OFFEROR does not have the authority to: 1. Authorize deviations from the contract documents. 2. Approve substitute materials or equipment; except as authorized in writing by COMMISSION. 3. Conduct or participate in tests or third party inspections; except as authorized in writing by COMMISSION. 4. Assume any of the responsibilities of the Contractors, Contractors' Superintendent, or subcontractors. 5. Exercise control over or be responsible for construction means, methods, techniques, sequences, procedures, or safety precautions. 6. Communicate directly with subcontractors or material suppliers without the prior consent of the Contractor. 7. Verbally authorize or approve change orders or extra work for the Project. 8. Offer or receive incentives, inducements, or other forms of enumeration to or from the Contractor to perform services or work outside the terms of any executed contracts for this Project. Third Party Relationships This Agreement is intended to provide unique services for a specific project. In the RVPUB\HSHANE\770943.1 184 development of the Project, COMMISSION has worked closely with Caltrans and others in the preparation of the construction documents and other Project related materials. COMMISSION, however, is solely responsible for and will be the sole point of contact for all contractual matters related to the Project. OFFEROR shall take direction only from COMMISSION and shall regularly inform only COMMISSION ofProject progress, outstanding issues, and all Project related matters. During the course of the Project, OFFEROR may find occasion to meet with City, County or Caltrans representatives, the design engineer, Project Offerors, or other third parties who have assisted with the Project. These entities may, from time to time, offer suggestions and/or recommendations regarding the Project or elements of the Project. While COMMISSION enjoys a close relationship with and has considerable confidence in the capabilities of these other parties, OFFEROR shall not act on any suggestions, solicited or unsolicited, without obtaining specific direction from COMMISSION. All oral and written communication with outside agencies or Offerors related to the project shall be directed only to COMMISSION. Distribution of Project related communication and information shall be at the sole discretion of COMMISSION representatives. Construction Site Safety In addition to the requirements specified elsewhere in this agreement, the following also will apply. 1. OFFEROR will conform to the safety provisions of the Caltrans Construction Manual. 2. OFFEROR's field personnel will wear white hard hats with proper suspension, orange vests with reflective tape, sleeved shirt, long pants, and leather boots with ankle support and rubber soled shoes at all times while working in the field. 3. OFFEROR will provide appropriate safety training for all OFFEROR's personnel. 4. All safety equipment will be provided by OFFEROR. Basis for Survey and Monument Staking Survey shall be based upon existing Caltrans horizontal and vertical control and existing pavement elevations. Monuments established by OFFEROR shall be marked by OFFEROR with furnished disks, plugs, tags. In addition, OFFEROR shall identify OFFEROR established monuments by tagging or stamping the monuments with the license or registration number of OFFEROR'S surveyor who is in "responsible charge" of the work. Personnel Qualifications and Responsibilities RVPUB\HSHANE\770943.1 185 The quantity and qualifications of field personnel to be assigned will be determined by the scope of the Project and the degree of difficulty of required tasks to be performed. All personnel and personnel assignments shall be subject to approval by COMMISSION. RVPUB\HSHANE\770943.1 186 RVPUB\HSHANE\770943. 1 EXHIBIT "8" SCHEDULE OF SERVICES L_INSERT_j 187 EXHIBIT "C" COMPENSATION AND PAYMENT For the satisfactory performance and completion of the Services under this Agreement, the Commission will pay the Consultant compensation as set forth herein. 1. ELEMENTS OF COMPENSATION. Compensation for the Services will be comprised of the following elements: 1.1 Direct Labor Costs; 1.2 Fixed Fee; and 1.3 Additional Direct Costs. 1.1 DIRECT lABOR COSTS. Direct Labor costs shall be paid in an amount equal to the product of the Direct Salary Costs and the Multiplier which are defined as follows: 1.1.1 DIRECT SALARY COSTS Direct Salary Costs are the base salaries and wages actually paid to the Consultant's personnel directly engaged in performance of the Services under the Agreement. (The range of hourly rates paid to the Consultant's personnel appears in Section 2 below.) 1.1.2 MULTIPLIER The Multiplier to be applied to the Direct Salary Costs to determine the Direct Labor Costs is 1.35184 , and is the sum of the following components: 1.1.2.1 Direct Salary Costs 1.00 1.1.2.2 Payroll Additives .35184 The decimal ratio of Payroll Additives to Direct Salary Costs. Payroll Additives include all employee benefits, allowances for vacation, sick leave, and holidays, and company portion of employee insurance and social and retirement benefits, all federal and state payroll taxes, premiums for insurance which are measured by payroll costs, and other contributions and benefits imposed by applicable laws and regulations. Exhibit C-1 188 1.1.2.3 Overhead Costs .80614 The decimal ratio of allowable Overhead Costs to the Consultant firm's total direct salary costs. Allowable Overhead Costs include general, administrative and overhead costs of maintaining and operating established offices, and consistent with established firm policies, and as defined in the Federal Acquisitions Regulations, Part 31.2. Total Multiplier 2.15798 (sum of 1.1.2.1, 1.1.2.2, and 1.1.2.3) 1.2 FIXED FEE. 1.2.1 A Fixed Fee of $18,716.91 shall be paid to Consultant for Consultant's complete and satisfactory performance of the Services under this Agreement. Commission shall pay the Fixed Fee in monthly installments based upon the percentage of the Services completed at the end of each billing period, as determined in the sole discretion of the Commission's Representative, or his or her designee. Consultant shall not be entitled to and shall forfeit any portion of the Fixed Fee not earned as provided herein. 1.3 ADDITIONAL DIRECT COSTS. Additional Direct Costs directly identifiable to the performance of the services of this Agreement shall be reimbursed at the rates below, or at actual invoiced cost. Rates for identified Additional Direct Costs are as follows: Vehicle Cell Phone Laptop Per Diem Car mileage Rental Car Travel Photocopies (Black & White) Photocopies (Color) REIMBURSEMENT RATE $1,250.00 per month $75.00 per month $60.00 per month Actual Cost $ /current IRS rate Actual Cost Actual Cost Actual Cost Actual Cost Exhibit C-2 189 Photographs/ Other Reprographic Services Postage/Shipping Courier Service Other Rentals, supplies, purchases Actual Cost Actual Cost Actual Cost Actual Cost Travel by air and travel in excess of 100 miles from the Consultant's office nearest to the Commission's office must have the Commission's prior written approval to be reimbursed under this Agreement. 2. DIRECT SALARY RATES Direct Salary Rates, which are the range of hourly rates to be used in determining Direct Salary Costs in Section 1.1.1 above, are given below and are subject to the following: 2.1 Direct Salary Rates shall be applicable to both straight time and overtime work, unless payment of a premium for overtime work is required by law, regulation or craft agreement, or is otherwise specified in this Agreement. In such event, the premium portion of Direct Salary Costs will not be subject to the Multiplier defined in Paragraph 1.1.2 above. 2.2 Direct Salary Rates shown herein are in effect for one year following the effective date of the Agreement. Thereafter, they may be adjusted annually to reflect the Consultant's adjustments to individual compensation. The Consultant shall notify the Commission in writing prior to a change in the range of rates included herein, and prior to each subsequent change. POSITION OR CLASSIFICATION Project Principal Resident Engineer Construction Inspector Scheduler Admin Assistant RANGE OF HOURLY RATES $ 94.25 -$ 108.39 /hour $ 63.98 - $ 73.58 /hour $ 51.81 - $ 59.58 /hour $ 56.93-$ 65.47 /hour $ 27.25-$ 31.34/hour 2.3 The above rates are for the Consultant only. All rates for subconsultants to the Consultant will be in accordance with the Consultant's cost proposal. Exhibit C-3 190 3. INVOICING. 3.1 Each month the Consultant shall submit an invoice for Services performed during the preceding month. The original invoice shall be submitted to the Commission's Executive Director with two (2) copies to the Commission's Project Coordinator. 3.2 Charges shall be billed in accordance with the terms and rates included herein, unless otherwise agreed in writing by the Commission's Representative. 3.3 Base Work shall be charged separately, and the charges for each task and Milestone listed in the Scope of Services, shall be listed separately. The charges for each individual assigned by the Consultant under this Agreement shall be listed separately on an attachment to the invoice. 3.4 A charge of $500 or more for any one item of Additional Direct Costs shall be accompanied by substantiating documentation satisfactory to the Commission such as invoices, telephone logs, etc. 3.5 Each copy of each invoice shall be accompanied by a Monthly Progress Report and spreadsheets showing hours expended by task for each month and total project to date. 3.6 Each invoice shall indicate payments to DBE subconsultants or supplies by dollar amount and as a percentage of the total invoice. 3. 7 Each invoice shall include a certification signed by the Consultant's Representative or an officer of the firm which reads as follows: I hereby certify that the hours and salary rates charged in this invoice are the actual hours and rates worked and paid to the employees listed. Signed ------------- Title Date Invoice No. 4. PAYMENT 4.1 The Commission shall pay the Consultant within four to six weeks after receipt by the Commission of an original invoice. Should the Commission contest any portion of an invoice, that portion shall be held for resolution, without interest, but the uncontested balance shall be paid. Exhibit C-4 191 4.2 The final payment for Services under this Agreement will be made only after the Consultant has executed a Release and Certificate of Final Payment. Exhibit C-5 192 EXHIBIT "D" FEDERAL DEPARTMENT OF TRANSPORTATION FHWA AND AND CAL TRANS REQUIREMENTS Notwithstanding anything to the contrary contained in the Agreement, including the other Exhibits attached thereto, the following provisions shall apply if funding for the Services is provided, in whole or in part, from the United States Department of Transportation: 1. DISCRIMINATION The Commission shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the implementation of the Caltrans DBE program or the requirements of 49 CFR Part 26. The Commission shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. Consultant or subcontractor shall not discriminate on the basis of race, color, national origin, of sex in the performance of this contract. Consultant shall carry out applicable requirements of 49 CFR Part 26 and the Caltrans DBE program in the award and administration of DOT-assisted contracts, as further set forth below. 2. PROMPT PAYMENT Consultant agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than 10 days from the receipt of each payment the prime contractor receives from the Commission. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the Commission. This clause applies to both DBE and non-DBE subcontractors. 3. RELEASE OF RETAINAGE The Commission shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the Commission of the contract work and pay retainage to prime contractors based on these acceptances. The prime contractor or subcontractor shall return all monies withheld in retention from a subcontractor within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the Commission. Federal regulations (49 CFR 26.29) require that any delay or postponement of payment over 30 days may take place only for good cause and with the Commission's prior written approval. Any violation of this provision shall subject the violating prime contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the prime contractor or subcontractor in the event of a dispute 193 involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor. This provision applies to both DBE and non-DBE prime contractors and subcontractors. 4. LEGAL REMEDIES In addition to those contract remedies set forth under relevant provisions of California law, either party to this Agreement may, where applicable, seek legal redress for violations of this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the relevant federal or state statutory provisions governing civil rights violations, and to the relevant federal and state provisions governing false claims or "whistleblower" actions, as well as any and all other applicable federal and state provisions of law. The Consultant shall include a provision to this effect in each of its agreements with its subcontractors. 5. DBE PARTICIPATION. Caltrans has developed a revised statewide DBE program pursuant to 49 C.F.R. Part 26. The requirements and procedures, as applicable, of the Caltrans DBE program are hereby incorporated by reference into this Agreement. Even if no DBE participation will be reported, Consultant shall complete Exhibits "G-1", "G-2" and "H" of this Agreement in compliance with the Caltrans DBE program. As part of the revised program, Caltrans has adopted a mandatory race conscious DBE Goal in addition to the race-neutral goal. RCTC has established a 4.59% race conscious DBE participation goal and a 1.35% race neutral participation goal for the Phase 1 and Phase 2 Services, combined. The race conscious DBE participation goal excludes Subcontinent Asian and Hispanic Males, per the requirements issued by the California Department of Transportation on March 4, 2009. A This Agreement is subject to Title 49, Part 26 of the Code of Federal Regulations entitled "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs." Bidders who obtain DBE participation on this contract will assist Caltrans in meeting its federally mandated statewide overall DBE goal. B. If the Agreement has an under-utilized DBE (UDBE) goal, the Consultant must meet the UDBE goal by using UDBEs as subcontractor or document a good faith effort to meet the goal. If a UDBE subcontractor is unable to perform, the Contractor must make a good faith effort to replace him/her with another UDBE subcontractor if the goal is not otherwise met. A UDBE is a firm meeting the definition of a DBE as specified in 49 CFR and is one of the following groups: 1. Black American 2. Asian-Pacfic American 3. Native American 4. Women 194 C. DBE and other small businesses (SB), as defined in Title 49 CFR, Part 26 are encouraged to participate in the performance of agreements financed in whole or in part with federal funds. The Consultant, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. The Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT-assisted agreements. Failure by the contractor to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as the Commission, Caltrans or the Department of Transportation deems appropriate. D. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this section. 6. DBE PARTICIPATION GENERAL INFORMATION. It is Consultant's responsibility to be fully informed regarding the requirements of 49 CFR, Part 26, and the Caltrans DBE program. Particular attention is directed to the following: A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be certified through the California Unified Certification Program (CUCP). B. A certified DBE may participate as a prime contractor, subcontractor, joint venture partner, as a vendor of material or supplies, or as a trucking company. C. A DBE joint-venture partner must be responsible for specific contract items of work or clearly defined portions thereof. Responsibility means actually performing, managing and supervising the work with its own forces. The DBE joint venture partner must share in the capital contribution, control, management, risks and profits of the joint-venture commensurate with its ownership interest. D. A DBE must perform a commercially useful function, pursuant to 49 CFR 26.55 that is, must be responsible for the execution of a distinct element of the work and must carry out its responsibility by actually performing, managing and supervising the work, as more fully described in section 8 below. E. The Consultant shall list only one subcontractor for each portion of work as defined in the Consultant's bid/proposal and all DBE subcontractors should be listed in the Consultant's bid/cost proposal list of subcontractors. F. A Consultant who is a certified DBE is eligible to claim all of the work in the Agreement toward the DBE participation except that portion of the work to be performed by non-DBE subcontractors. 195 7 . COMMERCIALLY USEFUL FUNCTION. A A DBE performs a commercially useful function when it is responsible for execution of the work of the Agreement and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the DBE must also be responsible with respect to materials and supplies used on the Agreement, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a commercially useful function, evaluate the amount of work subcontracted, industry practices; whether the amount the firm is to be paid under the Agreement is commensurate with the work it is actually performing, and other relevant factors. B. A DBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, Agreement, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate. C. If a DBE does not perform or exercise responsibility for at least thirty percent of the total cost of its Agreement with its own work force, or the DBE subcontracts a greater portion of the work of the Agreement than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a commercially useful function. 8. DBE CERTIFICATION AND DE-CERTIFICATION STATUS. If a DBE subcontractor is decertified during the life of the Agreement, the decertified subcontractor shall notify the Contractor in writing with the date of de-certification. If a subcontractor becomes a certified DBE during the life of the Agreement, the subcontractor shall notify the Contractor in writing with the date of certification. Any changes should be reported to the Commission's Representative within 30 days. 9. DBE RECORDS. A The Contractor shall maintain records of materials purchased and/or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime Contractors shall also show the date of work performed by their own forces along with the corresponding dollar value of the work. B. Upon completion of the Agreement, a summary of these records shall be prepared and submitted on the form entitled, "Final Report-Utilization of Disadvantaged Business Enterprises (DBE)," CEM-2402F (Exhibit 17 -F in Chapter 17 of the LAP), certified correct by the Contractor or the Contractor's authorized representative and shall be furnished to 196 the Commission's Representative with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty-five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to the Contractor when a satisfactory "Final Report Utilization of Disadvantaged Business Enterprises (DBE)"is submitted to the Commission's Representative. a. Prior to the fifteenth of each month, the Contractor shall submit documentation to the Commission's Representative showing the amount paid to DBE trucking companies. The Contractor shall also obtain and submit documentation to the Commission's Representative showing the amount paid by DBE trucking companies to all firms, including owner- operators, for the leasing of trucks. If the DBE leases trucks from a non-DBE, the Contractor may count only the fee or commission the DBE receives as a result of the lease arrangement. b. The Contractor shall also submit to the Commission's Representative documentation showing the truck number, name of owner, California Highway Patrol CA number, and if applicable, the DBE certification number of the truck owner for all trucks used during that month. This documentation shall be submitted on the Caltrans "Monthly DBE Trucking Verification, CEM-2404(F) form provided to the Contractor by the Commission's Representative. 10. REPORTING MATERIAL OR SUPPLIES PURCHASED FROM DBEs. When Reporting DBE Participation, Material or Supplies purchased from DBEs may count as follows, and if a DBE is also a UDBE, purchases will count towards the UOBE goal under the following conditions: A. If the materials or supplies are obtained from a DBE manufacturer, 100% of the cost of the materials or supplies will count toward the DBE participation. A DBE manufacturer is a firm that operates or maintains a factory or establishment that produces on the premises, the materials, supplies, articles, or equipment required under the Agreement and of the general character described by the specifications. B. If the materials or supplies purchased from a DBE regular dealer, count 60% of the cost of the materials or supplies toward DBE goals. A OBE regular dealer is a firm that owns, operates or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the Agreement, are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. To be a DBE regular dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question. A person may be a DBE regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone or asphalt without owning, operating or maintaining a place of business provided in this section. 197 C. If the person both owns and operates distribution equipment for the products, any supplementing of regular dealers' own distribution equipment, shall be by a long-term lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers, brokers, manufacturers' representatives, or other persons who arrange or expedite transactions are not DBE regular dealers within the meaning of this section. D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor a regular dealer, will be limited to the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, or fees or transportation charges for the delivery of materials or supplies required on the job site, provided the fees are reasonable and not excessive as compared with fees charged for similar services. 11. REPORTING PARTICIPATION OF DBE TRUCKING COMPANIES. When Reporting DBE Participation, Participation of DBE trucking companies may count as follows, and if a DBE is also a UDBE, credit will count towards the UDBE goal under the following conditions: A. The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible. B. The DBE must itself own and operate at least one fully licensed, insure, and operational truck used on the Agreement. C. The DBE receives credit for the total value of the transportation services it provides on the Agreement using trucks it owns, insures, and operates using drivers it employs. D. The DBE may lease trucks from another DBE firm including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the Agreement. E. The DBE may also lease trucks from a non-DBE firm, including an owner-operator. The DBE who leases trucks from a non-DBE is entitled to credit only for the fee or commission it receives as a result of the lease arrangement. The DBE does not receive credit for the total value of the transportation services provided by the lessee, since these services are not provided by the DBE. F. For the purposes of this section, a lease must indicate that the DBE has exclusive use and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, as long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE. 198 12. Debarment, Suspension and other Ineligibility and Voluntary Exclusion. In accordance with 49 CFR Part 29, which by this reference is incorporated herein, Consultant's subconsultants completed and submitted the Certificate of Sub Consultant Regarding Debarment, Suspension and Other lnelegibility and Voluntary Exclusion as part of the Consultant's proposal. If it is later determined that Consultant's subconsultants knowingly rendered an erroneous Certificate, the Commission may, among other remedies, terminate this Agreement. 199 EXHIBIT "E" CERTIFICATE OF CONSULTANT I HEREBY CERTIFY that I am the and duly authorized representative of the firm of whose address is , and that, except as hereby expressly stated, neither I nor the above firm that I represent have: (a) employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above consultant) to solicit or secure this agreement; nor (b) agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out the agreement; nor (c) paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above consultant) any fee, contribution, donation, or consideration of any kind for, or in connection with, procuring or carrying out this agreement. acknowledge that this Certificate is to be made available to the California Department of Transportation (Caltrans) in connection with this agreement involving participation of Federal-aid Highway funds, and is subject to applicable State and Federal laws, both criminal and civil. By: Signature Name Title Date RVPUB\HSHANE\770943.1 200 EXHIBIT "F" CERTIFICATE OF COMMISSION I HEREBY CERTIFY that I am the of the RIVERSIDE COUNTY TRANSPORTATION COMMISSION, and that the consulting firm of ______________ or its representative has not been required (except as herein expressly stated), directly or indirectly, as an express or implied condition in connection with obtaining or carrying out this Agreement to: (a) employ, retain, agree to employ or retain, any firm or person; or (b) pay or agree to pay, to any firm, person or organization, any fee, contribution, donation, or consideration of any kind. acknowledge that this Certificate is to be made available to the California Department of Transportation (Caltrans) in connection with this Agreement involving participation of federal-aid Highway funds, and is subject to applicable State and Federal laws, both criminal and civil. By: Signature Name Title Date RVPUB\HSHANE\770943.1 201 EXHIBIT "G" DISADVANTAGED BUSINESS ENTERPRISE (DBE) This information shall be provided bv the successful Proposer/Bidder with the award [attached behind this page] RVPUB\HSHANE\770943.1 202 RVPUB\HSHANE\770943.1 Exhibit "H" Disadvantaged Business Enterprise (DBE) Final Report of Utilization of DBE [attached behind this page] 203 EXHIBIT "I" NOTICE OF MATERIALS TO BE USED TO: DATE: -----------------Resident Engineer You are hereby notified that materials required for use under Contract No. for the construction of in District -----------------------------· Co. , Route will be obtained from sources herein designated. CONTRACT ITEM NO. KIND OF MATERIAL NAME AND ADDRESS WHERE MATERIAL CAN BE INSPECTED It 1s requested that you arrange for sampling, testing and inspection of materials pnor to delivery in accordance with Section 6 of the Standard Specifications where the same is practicable and in accord with your policy. It is understood that source inspection does not relieve me of the full responsibility for the incorporating in the work materials that comply in all respects with the contract plans and specifications, nor does it preclude the subsequent rejection of materials found to be unsuitable. RVPUB\HSHANE\770943.1 204 YOURS TRULY, ADDRESS: PHONE NO. EXHIBIT "J" DISCLOSURE OF LOBBYING ACTIVITIES [attached behind this page] RVPUB\HSHANE\770943.1 205 Local Assistance Procedures Manual EXHBITJO-Q Discosure of Lobbying Activities Exhibit 10-Q Disclosure of Lobbying Activities DISCLOSURE OF LOBBYING ACTIVITIES COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVTTlES PURSUANT TO 31 USC 1352 1. Type of Federal Action: 2. Status of Federal Action: 3. Report Type: 0 a. contract 0 a. bidlofler/application 0 a. initial b. grant b. initial award c. cooperat1ve agreement c. post-award d. loan e. loan guarantee f. loan insurance 4. Name and Addrt!SS of Reporting Entity 0Prime 0 Subawardee Tier~~~, 1fknown Congressional District, ifknown 6. Federal Department/Agency: 8. Federal Action Number, if known: 10. ._ Name and Address of Lobby Entity (Jfindividua1, last name, first oame, Ml) b. material change For Material Change Only: year quarter'-----! date of last report ------1 5. If Reporting Entity in No.4 is Subawardee, Enter Name and Address of Prime; Coogres5ional District, if known 7. Federal Program Name/Description: CFDA Number, if applicable _________ ! 9. Award Amount., if known: b. Individuals Performing Services (including address if different from No. lOa) (last name, first name, Ml) (atucb Continuation Sheet(s) if necessary) 11. Amount of Payment (check al11hat apply) $ ______ 0 actual 0 planned 12. Form of Payment (check all that apply): B : ~::ind; specify nature ______ ~ value~-~--~~ 13. Type of Payment (check all that apply) ~ a. retainer b. one-time fee c. conunission d. contingent fee e deferred f. other, specify -----------1 14. Brief De~criplion of Services Performed or to be performed and Datc(s) of Service, including omccr(s), employee(s), or member(s) contacted, for Payment Indicated in Item II: (attach Continuation Sheet(s) if necessary) 15. Coutinuati<>n Sheet(s) attached: Yes 0 No 0 16. lnfonnation requested through this form is authorized by Title 31 U.S.C Section 1352. Thi!. disclosure oflobbyjng reliance was placed by the tier above when )ns transaction was made or entered into. This disclosure is required pur:<;uant to 3 J U .S.C. 1352. This lnformation will be reported lo Congress semi.annuaUy and will be available for pub he inspeclion. Any person who fails to file the required disclosure shall be subJeCI to a civil penalty of not less than S I 0,000 and not more I han $100,000 for each such failure. Federal Use Only: Signature: ------------------1 Print Name: _________________ l Title: -------------------1 Telephone No.: -------~--Date: -~~~-l Authorized for Local Reproduction Standard Form -LLL Standard FOJm Ll.l Rev. 04-28-06 LPPOMI2 RVPUB\HSHANE\770943.1 206 Page 10-77 May 1,2006 EXHBIT 10-Q Local Assistance Procedures Mauual Disclosure of l-obbying Aclivities INSTRUCTIONS FOR COMPLETION OF SF-LLL, DISCLOSURE OF LOBBYING ACTIVITIES This disclosure fonn shall be completed by the repon;ng entity, whether subawardec or prime federal recipient at the initiati011 or receipt of covered federal action or a material change to previous filing pursuant to title 31 U.S.C. Section 1352. The tiling of a fonn is required for such payment or agreement to make payment to lobbying entity for influencing or anempting to influence an officer or employee of any agency, a Member of Congress an officer or employee of Congress or an employee of a Member of Congress in connection with a covered federa1 action. Attach a continuation sheet for additional information if the space on the form is inadequate. Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional infonnation. I. Identify the type of covered federal action for wh1ch lobbying activity is and/or ltas been secured to influence, the outcome of a covered federal action. 2. Identity the status of the covered federal action. 3. Identify the appropriate classification of this report. Tfthis is a follow-up report callsed by a material change to the infonnation previously reported, enter the year and quarter in which the change occurred. Enter the date of the last, previously submitte.d report by this reporting entity for this covered federal action. 4. Enter the fuJI name, address, city, state and zip code of the reporting entity. Include Congressional District if known. Check the appropriate classification of the reporting entity that designates if it is or expects to be a prime or sub award recipient. ldenlif}' the tier of the subawardee, e.g., the first subawardee oftbe prime is the first tier. Subawards include but are not limited to subcontracts~ sub grants and contract awards under grants. 5. If the orgamzation filing the report in Item 4. checks "Subawardee" then enter the full name~ address, city, State and ztp code of the prime federal recipient. Include Congressional DistrJct, if kn-own. 6. Enter the name of the federal agency making the award or loan commitment. Include at least one organizalion level below agency name, if known. For example. Department ofTransponation, United States Coast Guant 7. Enter the federal program name or description for the covered federal action (item 1 ). If known, enter the full Catalog of federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans and lmm conunitments. 8. Enter the most appropriate federal .identifying nwnber available for the federal action identification in item 1 (e.g., Request for Proposal (RFP) nwnber, Invitation for Bid (lFB) number, granl announcement nwnber, the contract grant. or loan award number, the application/proposal control number assigned by the federal agency). Include prefixes, e.g., "RFP·DE-90·001" 9. For a covered federal action where there has been an award or loan conunitment by the Federal agency~ enter the federal amount of the a":ard/loan commitment~ for the prime entity idenhfied in item 4 or 5. 1 0. (a) Enter the full name, address, city. state and zip code of the lobbying entity engaged by the reporting entity identified in Item 4. to influenced the covered federal action. (b) Enter the full name~; of the individual(s) performing services and inc1ude full address if different from 10 (a). Enter Last Name, First Name and Middle Initial (Ml). 11. Enter the amount of compensation paid or reasonably expected to be paid by the reporting entity (Item 4) to the lobbying entity (Item 10). Indicate whether the payment has been made (actual) or will be made (planned). Check all boxes that apply. If this is a material change report, enter the cumulative amount of payment made or planned to be made. 12 Check the appropriate box(es). Check all boxes that apply. If payment is made through an in-kind contribution, specifY the nature and value of the in-kind payment. 13. Check the appropriate box(es). Check all boxes that apply. If other, specifY nature. 14.Provide a specific and detailed description of the services that the lobbyist has perfom1ed or will be expected to perfonn and the date(s) of any services rendered. Include all preparatory and related acTivity not just time spent in actual contact with federal officials. Identity the federal officer(s) or employee(s) contacted or the officer(s) employee(s) or Member(s) of Congress that were contacted. J 5. Check whether or not a continuation sheet(s) is attached. 16. The certifYing official shall sign and date the fonn, print his/her name title and telephone number. Public reporting burden for this collection of informatioo is estimated to average 30-minutes per response, including time for reviewing instruction~ searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the butden estimate or any other aspect of this collection of information, induding suggestions for reducing this burden, to the Oflice of Management and Budget, Paperwork Reduction Project (0348-004-6), Washington, D.C. 20503. SF-LLL-InslrUcrions Rev. 06-04-90HENDlF)) Page J0-78 May 1, 2006 RVPUB\HSHANE\770943.1 LPP06-412 207 AGENDA ITEM 12 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April 23, 2012 TO: Western Riverside County Programs and Projects Committee FROM: Cathy Bechtel, Project Development Director THROUGH: John Standiford, Deputy Executive Director Amendment with STV, Incorporated for Federal Transit SUBJECT: Administration Coordination and Small Starts Support for the Perris Valley Line STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 08-33-069-03, Amendment No. 3 to Agreement 08-33-069-00, with STV Incorporated (STV) for additional assistance with Federal Transit Administration (FTA) coordination and Small Starts program support for the Perris Valley Line project in the amount of $115,000, for a total contract amount of $31 5, 709; 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 planning division of STV assists the Commission with FT A coordination and prepares reports required as part of the federal Small Starts funding program. The current agreement for these services, Agreement No. 08-33-069-00 was originally for $200,709. Since that agreement was developed, staff has required more assistance from STV than originally anticipated in order to prepare unexpected and FT A-requested reports such as a rail accessibility plan, a financial plan update, white papers describing concurrent non-project activities, updated information concerning feeder bus services, and a number of other reports. STV is also preparing the submittal for the Commission's Project Construction Grant Agreement, which will allow the Commission to draw down the approved $75 million for the project. The original agreement was anticipated to run through the preliminary engineering phase of work. Continued assistance will now be required through project construction and the first two years of revenue service operation in order to prepare the reports required by FTA as the Small Starts program progresses. Agenda Item 12 208 Acceptance of the $75 million requires that the Commission provide annual project status reports. A service and fare equity analysis will need to be prepared before Perris Valley Line operations begin to ensure the extension of Metrolink service will not conflict with Title VI (Civil Rights Act of 1964) requirements. A before and after study plan will need to be prepared initially in Spring 2014 and later in Spring 2016 to track the performance of the Metrolink system and connecting transit lines before and after the implementation of the Perris Valley Line. The FTA will also require ongoing updates to project elements such as cost, schedule, and budget at key construction milestones, which STV will prepare in conjunction with the construction management consultant. STV will also provide other ongoing FTA support services during the final design, construction, and initial operation of the Perris Valley Line. Staff also requires STV' s part1c1pation in monthly coordination calls and meetings with the FT A. A contract amendment is requested to extend the agreement through December 31, 201 6 (two years beyond start of revenue service) and add $115,000 to complete the above tasks, bringing the new total contract amount to $315,709. Financial Information . I Yes I I FY 2011/12 Amount: I $20,000 In F1scal Year Budget: N/A Year: FY 2012113 + $95,000 Source of Funds: ISTIP PPM Budget Adjustment: I No N/A GL!Project Accounting No.: 003800 81501 221 33 81501 Fiscal Procedures Approved: ~~ I Date: I 04/16/12 Attachment: Draft Agreement No. 08-33-069-03 Agenda Item 12 209 Agreement No. 08-33-069-03 AMENDMENT NO. 3 TO THE AGREEMENT FOR FEDERAL TRANSIT ADMINISTRATION (FTA) COORDINATION AND SMALL STARTS APPLICATIONS SUPPORT FOR THE PERRIS VALLEY LINE (PVL) WITH STV, INC. 1. PARTIES AND DATE This Amendment No. 3 to the Agreement for Federal Transit Administration Coordination and Small Starts Application Support for Preliminary Engineering Phase for the Perris Valley Line is made and entered into as of this day of --~' 2012, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("Commission") and STV, INC. ("Consultant"), a New York Corporation. 2. RECITALS 2.1 The Commission and the Consultant have entered into Agreement No. 08-33-069-00 dated March 14, 2008 for the purpose of providing Federal Transit Administration Coordination and Small Starts Application Support for the Preliminary Engineering Phase of the Perris Valley Line (the "Master Agreement") 2.2 The Commission and the Consultant entered into Amendment NO. 1 (Agreement 08-33-069-01 ), dated August 1, 2009, for the purpose of extending the term thereof. 2.3 The Commission and the Consultant entered into Amendment No. 2 (08-33-069-02), dated January 1, 2012 for the purpose of extending the term thereof. 2.4 The Commission and the Consultant now desire to further amend the Master Agreement in order to perform the continued provision of the Federal Transit Administration Coordination and Small Starts Application Support Services. 3. TERMS 3. 1 The term of the Master Agreement shall be extended for an additional term of ninety-six (96) months ending on December 31, 2016. 210 3.2 Work shall be performed at the rates set forth in the Master Agreement. 3.3 The total contract value of the Master Agreement, as amended by this Amendment No. 3, is hereby increased by One Hundred Fifteen Thousand Dollars ($115,000). 3.4 The total contract value for the Master Agreement, as heretofore amended, shall not exceed Three Hundred Fifteen Thousand, Seven Hundred Nine Dollars ($315,709). 3.5 Except as amended by this Amendment, all prov1s1ons of the Master Agreement, as amended by Amendments No. 1 and No. 2, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the parties under this Amendment. [SIGNATURES ON FOLLOWING PAGE] 211 SIGNATURE PAGE TO AGREEMENT NO. 08-33-069-03 IN WITNESS WHEREOF, the parties hereto have executed the Agreement on the date first herein above written. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By:John J. Benoit, Chair APPROVED AS TO FORM By: ----------------- Best, Best & Krieger General Counsel STV, INC. Signature Name Title 212 AGENDA ITEM 13 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April 23, 2012 TO: Western Riverside County Programs and Projects Committee FROM: Mark Lancaster, Interim Right of Way Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Perris Valley Line -Utility Agreements STAFF RECOMMENDATION: This item is for the Committee to: 1) Authorize the Executive Director, pursuant to legal counsel review, to execute the utility agreements related to the Perris Valley Line commuter rail project on behalf of the Commission; 2) Authorize the Executive Director, pursuant to legal counsel review, to execute the utility service agreements related to the Perris Valley Line commuter rail project on behalf of the Commission; and 3) Forward to the Commission for final action and approval. BACKGROUND INFORMATION: The San Jacinto Branch Line (Perris Valley Line) commuter rail project is a 24-mile extension of Metrolink' s 91 Line, currently providing service from Riverside to Fullerton and downtown Los Angeles. The extension would begin at a junction with the Burlington Northern Santa Fe line, north of the city of Riverside and turn southeast along the San Jacinto Branch Line. The terminus of the line is in the city of Perris at State Route 74 and Ethanac Road in Perris. Upon start up, the Perris Valley Line project will have four new stations. It will operate through three cities (Riverside, Moreno Valley, and Perris), bringing commuter rail service to major employment centers. The project will also provide communities such as Hemet, Lake Elsinore, Menifee, Murrieta, San Jacinto, Temecula, and Wildomar closer access to the Southern California commuter rail network. DISCUSSION: Utility agreements will be required with the city of Riverside Electric and Water Divisions and Sprint Communications to relocate all utility facilities that are in Agenda Item 13 213 conflict with project construction. As a part of establishing liability for the cost of the utility relocation, a prior rights check is performed by the utility owner and verified by the Commission's utility coordinator. The utility facilities will be relocated either before or concurrently with construction activities. The estimated cost for the Commission's share of the utility relocation work is $2,850,000. Utility service connection (e.g., grade crossings, stations) requirements will also require the preparation and execution of utility service agreements with the local utility purveyors. Staff is recommending the Commission authorize the Executive Director to execute the utility agreements and utility service agreements on behalf of the Commission. While these are standard form agreements, an example of a draft utility agreement is included as an attachment. Financial Impact Utility relocation costs of $2,850,000 have been and will be included in the FY 2011/12 through FY 2013/14 budgets. Financial Information lh Fiscal Year Budget: Yes Year: FY 2011/12 Amount: $ 850,000 N/A FY 2012/13+ $2,000,000 Source of Funds: I Measure A Budget Adjustment: I No GL!Project Accounting No.: 003823 81401 00068 0000 221 33 81401 Fiscal Procedures Approved: ~~ I Date: I 04/18/12 Attachment: Sample Utility Agreement Agenda Item 1 3 214 UTILITY AGREEMENT No. 36 BETWEEN THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND SPRINT COMMUNICATIONS COMPANY L.P. December 12, 2011 The RIVERSIDE COUNTY TRANSPORTATION COMMISSION, hereinafter called "RCTC", has proposed a construction project to extend 24 miles of commuter rail service from the existing Riverside Downtown Station to the cities of Moreno Valley and Perris in western Riverside County, California (the "RCTC Project"). This new rail extension, known as the Perris Valley Line ("PVL"), would be operated by the Southern California Regional Rail Authority ("SCRRA"), the operators of the SCRRA/Metrolink commuter rail system. The PVL would be created by using the existing Burlington Northern Santa Fe (BNSF) and San Jacinto Branch Line ("SJBL") rail corridors with a new connection. SPRINT COMMUNICATIONS COMPANY L.P., hereinafter called "SPRINT", owns and maintains an underground high capacity fiber optic line in a 4" conduit that is within the limits of the RCTC Project and is in conflict which requires to be lowered to accommodate the RCTC Project. It is hereby mutually agreed, as of the date first set forth above, pursuant to this Utility Agreement No. 36 ("Agreement") by and between RCTC and SPRINT that: I. WORK TO BE DONE In accordance with the Relocation Claim Letter and Notice to Prepare Plans dated October 26, 2011, SPRINT shall prepare their relocation plans. Any revision to the SPRINT's plan described above, after approval by the RCTC, shall be agreed upon by both parties hereto under a Revised Notice to Owner. Such Revised Notices to Owner, approved by the RCTC agreed to/acknowledged by the OWNER, will constitute an approved revision of the SPRINT's plan described above and are hereby made a part hereof. No redesign or additional engineering, after approval by the RCTC, shall commence prior to written execution by SPRINT of the Revised Notice to Owner and may require an amendment to this Agreement in addition to the Revised Notice to Owner. II. LIABILITY FOR WORK Existing facilities are located in their present position pursuant to rights superior to those of RCTC and will be relocated at RCTC's expense. III. PERFORMANCE OF WORK SPRINT agrees to perfonn the herein-described SPRINT work with its own forces qualified and licensed to complete such work or to cause the herein-described work to be perfonned by SPRINT 's contractor, employed by written contract on a continuing basis to perfonn work of this type, and qualified and licensed to complete the SPRINT work, and to provide and furnish all necessary labor, materials, tools and equipment required therefore, and to prosecute said work skillfully and diligently to completion. Use of out-of-state personnel or personnel requiring lodging and meal ("per diem") expenses will not be allowed without prior written authorization by RCTC's representative. Requests for such pennission must be contained in SPRINT's estimate of actual and necessary relocation costs. CID 504802 AID 553159 215 I UTILITY AGREEMENT NO. 36 SPRINT shall include an explanation why local employee or contract labor is not considered adequate for the relocation work proposed. Per diem expenses shall not exceed the per diem expense amounts allowed under the State's Department of Personnel Administration travel expense guidelines. Engineering services for locating, making of surveys, preparation of plans, specifications, estimates, supervision, inspection, are to be furnished by SPRINT and approved by the RCTC. Cost principles for determining the reasonableness and allowability of SPRINT's costs shall be determined in accordance with 48 CFR, Chapter 1, Part 31; 23 CFR, Chapter 1, Part 645; and 18 CFR, Chapter 1, Parts 101, 201 and OMB Circular A-87, as applicable. SPRINT internal and outsourced contractor rates of $75 per hour shall be deemed to comply with the foregoing provisions. SPRINT shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out the work under this Agreement, SPRINT 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 lifesaving 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. SPRINT and RCTC shall work together to incorporate a schedule into the relocation plan of the time required for completion of the SPRINT work. SPRINT shall use its best efforts to complete the work in accordance with the agreed upon schedule. IV. PAYMENTSFORWORK SPRINT has estimated the cost for the SPRINT work to be provided under this Agreement and, as hereinafter set forth, is the sum of $10,000.00, which shall include but not be limited to (i) engineering consultant charges, (ii) equipment and materials, (iii) company labor and company engineering, and (iv) a 10% general administrative charge applies to all SPRINT expenditures described in this section. Under the provisions of Section 706, the RCTC may, without prejudice to its rights, advance the cost of services and if the RCTC advances such cost it is the duty of the SPRINT to provide the required services as soon as reasonably possible so as not to delay Project construction. Accordingly, RCTC agrees to advance to OWNER the sum of $10,000.00 to apply to the cost of SPRINT work to be undertaken as provided herein above. Said sum of $10,000.00 will be delivered by the RCTC to SPRINT fifteen (15) days after execution of the Agreement by the parties hereto and upon receipt of SPRINT's bill for the advance, itemized in quintuplicate, signed by a responsible official of SPRINT's organization and prepared on SPRINT's letterhead, compiled on the basis of estimated actual cost and expense. SPRINT shall maintain records of the actual costs incurred and charged or allocated for the SPRINT work related to the project in accordance with recognized accounting principles. 17336.02300\7020580.1 2 216 I UTILITY AGREEMENT NO. 36 The final statement or billing shall be in the form of an itemized statement of the total costs charged for the SPRINT work, less the credits provided for in this Agreement, and less any amounts covered by progress billings. However, RCTC shall not pay final bills which exceed the estimated cost of this Agreement without documentation of the reason for the increase of said cost from SPRINT and approval of documentation by RCTC. Except, if the final bill exceeds SPRINT's estimated costs solely as the result of a Revised Notice to Owner as provided for in Section I, a copy of said revised Notice to Owner shall suffice as documentation. In any event if the final bill exceeds 125% of the estimated cost of this Agreement, an amended agreement shall be executed by the parties to this Agreement prior to the payment of SPRINT's final bill. Notwithstanding any other provision of this Agreement, any and all increases in costs that are the direct result of deviations from the SPRINT work described in Section I and Section II of this Agreement shall have the prior concurrence of RCTC. Detailed records from which the billing is compiled shall be retained by SPRINT for a period of three years from the date of the final payment and will be available for audit by State and/or Federal auditors. SPRINT agrees to comply with Contract Cost Principles and Procedures as set forth in 48 CFR, Chapter I, Part 31, et seq., 23 CFR, Chapter I, Part 645 and/or 18 CFR, Chapter I, Parts 101, 201, et al. SPRINT internal and outsourced contractor rates of $75 per hour shall be deemed to comply with the foregoing provisions. If a subsequent State and/or Federal audit determines payments to be unallowable, SPRINT agrees to reimburse RCTC upon receipt of RCTC billing. V. GENERAL CONDITIONS All costs accrued by SPRINT as a result of RCTC's request of 10/26111 to review study and/or prepare relocation plans and estimates for the SPRINT work associated with this Agreement may be billed pursuant to the terms and conditions of this Agreement. If the RCTC project which precipitated this Agreement is canceled or modified so as to eliminate the necessity of the SPRINT work by SPRINT, RCTC will notify SPRINT in writing and RCTC reserves the right to terminate this Agreement by amendment. The amendment shall provide mutually acceptable terms and conditions for terminating this Agreement. All notices hereunder and communications regarding interpretation of the terms of this Agreement 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: RCTC Riverside County Transportation Commission Riverside County Regional Complex 4080 Lemon Street, Third Floor Riverside, CA 92507 Attn: Gina Gallagher 17336.02300\7020580.1 3 217 SPRINT Sprint Communications Company L.P. 6391 Sprint Parkway MS: KSOPHT0101-Z2040 Overland Park, KS 66251 Attn: Manager, Real Estate I UTILITY AGREEMENT NO. 36 Any notice so given shall be considered received by the other party three (3) days after deposit in the U.S. Mail as stated above and 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. ESTIMATED COST TO RCTC FOR ITS SHARE OF THE ABOVE DESCRffiED SPRINT WORK IS $10,000.00. [Signatures on following page] 17336.02300\7020580.1 4 218 I UTll..ITY AGREEMENT NO. 36 J SIGNATURE PAGE TO UTILITY AGREEMENT NO. 36 IN WITNESS WHEREOF, the above parties have executed this Agreement the day and year above written. LOCAL AGENCY: Riverside County Transportation Commission By: ______________________________ __ APPROVED AS TO FORM: Best Best & Krieger LLP By: __________________________ ___ By: __________________________________ __ General Counsel to Riverside County Transportation Commission. OWNER: Sprint Communications Company L.P. 17336.02300\7020580.1 5 219 AGENDA ITEM 14 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April 23, 2012 ~----------~~-- TO: Western Riverside County Programs and Projects Committee ~----------~---- FROM: Jillian Edmiston, Staff Analyst Brian Cunanan, Commuter and Motorist Assistance Manager r------------r---- THROUGH: Robert Yates, Multimodal Services Director ~----------~---- SUBJECT: Agreement for the Operation of the Freeway Service Patrol Program in Riverside County !.!:::::========= STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 1 2-45-068-00 with the California Department of Transportation (Caltrans) for the operation of the Riverside County Freeway Service Patrol (FSP) program in the amount of $1,653,564 in state funding for FY 2011 /12; and 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: In 1986, the Commission established itself as the Riverside County Service Authority for Freeway Emergencies (RC SAFE) after the enactment of SB 1199 in 1985. The purpose of the formation of SAFEs in California was to provide call box services and, with excess funds, provide additional motorist aid services. Funding for RC SAFE is derived from a one dollar per vehicle registration fee on vehicles registered in Riverside County. Initially, these funds were used only for the call box program. As additional motorist aid services were developed, SAFE funds were also used to provide FSP and the Inland Empire 511 traveler information services as part of a comprehensive motorist aid system in Riverside County. In 1990, Proposition C was passed to fund transportation improvements and to help reduce traffic congestion in California. From this, the FSP program was created by Caltrans, which developed the corresponding Local Funding Allocation Plan to distribute funds to participating jurisdictions through a formula based on population, urban freeway lane miles, and levels of congestion. Agenda Item 14 220 The Caltrans funding agreement for FY 2011/12 provides for continued state funding in the amount of $1,653,564. The Commission will fund the required local match of $413,392 with SAFE revenues. Any state funds not claimed in the current fiscal year may be carried over and claimed in FY 2012/13. FSP operations are currently being funded by carry over from the FY 2010/11 funding agreement. A budget adjustment is not required and upon approval of this agenda item, the Commission will execute this fund transfer agreement with Caltrans. The Commission, acting in its capacity as the SAFE, is the principal agency in Riverside County, in partnership with Caltrans and the California Highway Patrol, managing the FSP program. The purpose of the FSP program is to provide a continuously roving tow services patrol along designated freeway segments (referred to as beats) to relieve freeway congestion and facilitate the rapid removal of disabled vehicles and those involved in minor accidents on local freeways. Currently, the Commission contracts with four tow truck operators to provide service on a total of nine beats Monday through Friday during the peak commute hours, 5:30 a.m. to 8:30 a.m. and 3:00 p.m. (1 :00 p.m. on Fridays) to 7:00 p.m. In FY 2010/11, FSP performed over 45,000 assists. Financial Information In Fiscal Year Budget: Yes Year: FY 2011/12 Amount: $200,000 N/A FY 2012/13+ $1,453,564 Source of Funds: I State of California Budget Adjustment: I No N/A GL!Project Accounting No.: 002173 415 41508 0000 201 45 41505 Fiscal Procedures Approved: ~~ I Date: I 04/12/12 Attachment: FSP Fund Transfer Agreement Agenda Item 1 4 221 FREEWAY SERVICE PATROL PROGRAM FUND TRANSFER AGREEMENT (Non Federal) Agreement No. FSP12-6054(070) Project No. FSP12-6054(070) Location: 08-RIV-Var-RCTC Advantage ID: 0812000209 THIS AGREEMENT, effective on July 1, 2011, is between the State of California, acting by and through the Department of Transportation, hereinafter referred to as STATE, and the Riverside County Transportation Commission, a public agency, hereinafter referred to as "ADMINISTERING AGENCY." WHEREAS, Streets and Highways Code (S&HC) Section 2560, et seq. authorizes STATE and administering agencies to develop and implement a Freeway Service Patrol (FSP) program on traffic-congested urban freeways throughout the state; and WHEREAS, STATE has distributed available State Highway Account funds to administering agencies participating in the FSP Program in accordance with S&HC Section 2562; and WHEREAS, ADMINISTERING AGENCY has applied to STATE and has been selected to receive funds from the FSP Program for the purpose of Freeway Service Patrol for FY 2011-2012, hereinafter referred to as "PROJECT"; and WHEREAS, proposed PROJECT funding is as follows: Total Cost $2,066,956.00 State Funds $1,653,564.00 Local Funds $413,392.00 ; and WHEREAS, STATE is required to enter into an agreement with ADMINISTERING AGENCY to delineate the respective responsibilities of the parties relative to prosecution of said PROJECT; and WHEREAS, STATE and ADMINISTERING AGENCY mutually desire to cooperate and jointly participate in the FSP program and desire to specify herein the terms and conditions under which the FSP program is to be conducted; and WHEREAS, ADMINISTERING AGENCY has approved entering into this Agreement under authority of Resolution No. approved by ADMINISTERING AGENCY on _________ , a copy of which is attached. For Caltrans Use Only I hereby Certify upon my own personal knowledge that budgeted funds are available for this encumbrance Accounting Officer 1 Date I Budget Year I PEC/PECT IT ASK I SUBTASK I Fund Source I $1,653,564.00 33 I 2011 12660-102-042 1 201112012 120.30.010.6001 · 2620/0040 I I I I I Page 1 of 7 222 1102-042-T I Non-Fed FSP NOW, THEREFORE, the parties agree as follows: SECTION I STATE AGREES: 1. To define or specify, in cooperation with ADMINISTERING AGENCY, the limits of the State Highway segments to be served by the FSP as well as the nature and amount of the FSP dedicated equipment, if any, that is to be funded under the FSP program. 2. To pay ADMINISTERING AGENCY the STATE's share, in amount not to exceed $1 ,653,564.00, of eligible participating PROJECT costs. 3. To deposit with ADMINISTERING AGENCY, upon ADMINISTERING AGENCY's award of a contract for PROJECT services and receipt of an original and two signed copies of an invoice in the proper form, including identification of this Agreement Number and Project Number, from ADMINISTERING AGENCY, the amount of $264,570.24. This initial deposit represents STATE's share of the estimated costs for the initial two months of PROJECT. Thereafter, to make reimbursements to ADMINISTERING AGENCY as promptly as state fiscal procedures will permit, but not more often than monthly in arrears, upon receipt of an original and two signed copies of invoices in the proper form covering actual allowable costs incurred for the prior sequential month's period of the Progress Payment Invoice. (The initial deposit will be calculated at 16% of the STATE's total share.) 4. When conducting an audit of the costs claimed by ADMINISTERING AGENCY under the provisions of this Agreement, STATE will rely to the maximum extent possible on any prior audit of ADMINISTERING AGENCY performed pursuant to the provisions of state and federal laws. In the absence of such an audit, work of other auditors will be relied upon to the extent that work is acceptable to STATE when planning and conducting additional audits. SECTION II ADMINISTERING AGENCY AGREES: 1. To commit and contribute matching funds from ADMINISTERING AGENCY resources, which shall be an amount not less than 25 percent of the amount provided by STATE from the State Highway Account. 2. The ADMINISTERING AGENCY's detailed PROJECT Cost Proposal is attached hereto and made an express part of this Agreement. The detailed PROJECT Cost Proposal reflects the provisions and/or regulations of Section Ill, Article 8, of this Agreement. 3. To use all state funds paid hereunder only for those transportation related PROJECT purposes that conform to Article XIX of the California State Constitution. Page 2 of 7 Non-Fed FSP 223 4. STATE funds provided to ADMINISTERING AGENCY under this Agreement shall not be used for administrative purposes by ADMINISTERING AGENCY. Said administrative costs may be credited toward ADMINISTERING AGENCY's PROJECT matching funds provided claimed administrative costs are specified on ADMINISTERING AGENCY's invoice submittal. If said administrative costs are "indirect", as defined in 2 CFR, Part 225, Cost Principles for State and Local Government, the costs must be allocated in accordance with an Indirect Cost Allocation Plan (I CAP), reviewed and approved by STATE's Office of Audits and Investigations, for each applicable fiscal year. 5. To develop, in cooperation with STATE, advertise, award, and administer PROJECT contract(s) in accordance with ADMINISTERING AGENCY competitive procurement procedures, in compliance with 49 Code of Federal Regulations (CFR), Part 18.36. 6. Upon award of a contract for PROJECT, to prepare and submit to STATE an original and two signed copies of invoicing for STATE's initial deposit specified in Section I, Article 3. Thereafter, to prepare and submit to STATE an original and two signed copies of progress invoicing for STATE's share of actual expenditures for allowable PROJECT costs. 7. Said invoicing shall evidence the expenditure of ADMINISTERING AGENCY's PROJECT participation in paying not less than 20% of all allowable PROJECT costs and shall contain the information described in Chapter 5 of the Local Assistance Procedures Manual (LAPM). Invoicing shall demonstrate ADMINISTERING AGENCY'S PROJECT participation by showing a matched expenditure of funds of at least 25% of the amount provided by the STATE. ADMINISTERING AGENCY invoices shall be submitted to: State of California Department of Transportation Division of Traffice Operations, MS 36 Office of System Management Operations 1120 "N" Street Sacramento, CA 9427 4-0001 8. Within 60 days after completion of PROJECT work to be reimbursed under this Agreement, to prepare a final invoice reporting all actual eligible costs expended, including all costs paid by ADMINISTERING AGENCY and submit that signed invoice, along with any refund due STATE, to the address referenced above under Section II, Article 7. Backup information submitted with said final invoice shall include all FSP operational contract invoices paid by ADMINISTERING AGENCY to contracted operators included in expenditures billed to STATE under this Agreement. 9. COST PRINCIPLES A) ADMINISTERING AGENCY agrees to comply with, and require all project sponsors to comply with, 2 CFR, Part 225, Cost Principles for State and Local Government, and 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. Page 3 of 7 Non-Fed FSP 224 B) ADMINISTERING AGENCY will assure that its Fund recipients will be obligated to agree that 1) Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allowability of individual PROJECT cost items, and 2) those parties shall comply with Federal administrative procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. Every ·sub-recipient receiving Funds as a contractor or sub-contractor under this Agreement shall comply with Federal administrative procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. C) Any Fund expenditures for costs for which ADMINISTERING AGENCY has received payment or credit that are determined by subsequent audit to be unallowable under 2 CFR, Part 225, 48 CFR, Chapter 1, Part 31 or 49 CFR, Part 18, are subject to repayment by ADMINISTERING AGENCY to STATE. Should ADMINISTERING AGENCY fail to reimburse Fund moneys due STATE within 30 days of demand, or within such other period as may be agreed in writing between the Parties hereto, STATE is authorized to intercept and withhold future payments due ADMINISTERING AGENCY from STATE or any third-party source, including, but not limited to, the State Treasurer, the State Controller, and the California Transportation Commission. 10. THIRD PARTY CONTRACTING A) ADMINISTERING AGENCY shall not award a construction contract over $10,000 or other contracts over $25,000 [excluding professional service contracts of the type which are required to be procured in accordance with Government Code Sections 4525 (d), (e) and (f)] on the basis of a noncompetitive negotiation for work to be performed using Funds without the prior written approval of STATE. B) Any subcontract or agreement entered into by ADMINISTERING AGENCY as a result of disbursing Funds received pursuant to this Agreement shall contain all of the fiscal provisions (Section II, Paragraphs 9, 11, 12, & 13) of this Agreement; and shall mandate that travel and per diem reimbursements and third-party contract reimbursements to subcontractors will be allowable as project costs only after those costs are incurred and paid for by the subcontractors. C) In addition to the above, the preaward requirements of third party contractor/consultants with ADMINISTERING AGENCY should be consistent with Local Program Procedures as published by STATE. 11. ACCOUNTING SYSTEM ADMINISTERING AGENCY, its contractors and subcontractors shall establish and maintain an accounting system and records that properly accumulate and segregate Fund expenditures by line item for the PROJECT. The accounting system of ADMINISTERING AGENCY, its contractors, and all subcontractors shall conform to Generally Accepted Accounting Principles (GAAP), enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices. Page 4 of 7 Non-Fed FSP 225 12. RIGHT TO AUDIT For the purpose of determining compliance with this Agreement and other matters connected with the performance of ADMINISTERING AGENCY's contracts with third parties, ADMINISTERING AGENCY, ADMINISTERING AGENCY's contractors and subcontractors, and STATE shall each maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, the costs of administering those various contracts. All of the above referenced parties shall make such materials available at their respective offices at all reasonable times for three years from the date of final payment of Funds to ADMINISTERING AGENCY. STATE, the California State Auditor, or any duly authorized representative of STATE, or the United States Department of Transportation shall each have access to any books, records, and documents that are pertinent for audits, examinations, excerpts, and transactions, and ADMINISTERING AGENCY shall furnish copies thereof if requested. 13. TRAVEL AND SUBSISTENCE Payments to only ADMINISTERING AGENCY for travel and subsistence expenses of ADMINISTERING AGENCY forces and its subcontractors claimed for reimbursement or applied as local match credit shall not exceed rates authorized to be paid exempt non-represented State employees under current State Department of Personnel Administration (DPA) rules. If the rates invoiced are in excess of those authorized DPA rates, then ADMINISTERING AGENCY is responsible for the cost difference and any overpayments shall be reimbursed to STATE on demand. 14. SINGLE AUDIT ADMINISTERING AGENCY agrees to include all state (Funds) and federal funded projects in the schedule of projects to be examined in ADMINISTERING AGENCY's annual audit and in the schedule of projects to be examined under its single audit prepared in accordance with Office of Management and Budget Circular A-133. SECTION Ill IT IS MUTUALLY AGREED: 1 . All obligations of STATE under the terms of this Agreement are subject to the appropriation of resources by the Legislature and the encumbrance of funds under this Agreement. Funding and reimbursement is available only upon the passage of the State Budget Act containing these STATE funds. The starting date of eligible reimbursable activities shall be JULY 1, 2011. 2. All obligations of ADMINISTERING AGENCY under the terms of this Agreement are subject to authorization and allocation of resources by ADMINISTERING AGENCY. Page 5 of 7 Non-Fed FSP 226 3. ADMINISTERING AGENCY and STATE shall jointly define the initial FSP program as well as the appropriate level of FSP funding recommendations and scope of service and equipment required to provide and manage the FSP program. No changes shall be made in these unless mutually agreed to in writing by the parties to this Agreement. 4. Nothing in the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not parties to this Agreement or affect the legal liability of either party to this Agreement by imposing any standard of care with respect to the maintenance of State highways different from the standard of care imposed by law. 5. Neither STATE nor any officer or employee thereof is responsible for any injury, damage or liability occurring or arising by reason of anything done or omitted to be done by ADMINISTERING AGENCY under or in connection with any work, authority or jurisdiction delegated to ADMINISTERING AGENCY under this Agreement. It is understood and agreed that, pursuant to Government Code Section 895.4, ADMINISTERING AGENCY shall fully defend, indemnify and save harmless the State of California, its officers and employees from all claims, suits or actions of every name, kind and description brought for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by ADMINISTERING AGENCY under or in connection with any work, authority or jurisdiction delegated to ADMINISTERING AGENCY under this Agreement. 6. Neither ADMINISTERING AGENCY nor any officer or employee thereof is responsible for any injury, damage or liability occurring or arising by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction delegated to STATE under this Agreement. It is understood and agreed that, pursuant to Government Code Section 895.4, STATE shall fully defend, indemnify and save harmless ADMINISTERING AGENCY, its officers and employees from all claims, suits or actions of every name, kind and description brought for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction delegated to STATE under this Agreement. 7. ADMINISTERING AGENCY will maintain an inventory of all non-expendable PROJECT equipment, defined as having a useful life of at least two years and an acquisition cost of $500 or more, paid for with PROJECT funds. ADMINISTERING AGENCY shall define in PROJECT contract who shall take ownership of all equipment at the conclusion of the Project. 8. ADMINISTERING AGENCY and its sub-contractors will comply with all applicable Federal and State laws and regulations, including but not limited to, 2 CFR, Part 225, Cost Principles for State and Local Governments and 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments). 9. In the event that ADMINISTERING AGENCY fails to operate the PROJECT commenced and reimbursed under this Agreement in accordance with the terms of this Agreement or fails to comply with applicable Federal and State laws and regulations, STATE reserves the right to terminate funding for PROJECT, or portions thereof, upon written notice to ADMINISTERING AGENCY. Page 6of 7 Non-Fed FSP 227 10. This Agreement shall terminate on June 30, 2014. However, the non-expendable equipment, and liability clauses shall remain in effect until terminated or modified in writing by mutual agreement. STATE OF CALIFORNIA Riverside County Transportation Commission Department of Transportation By: By: ____________________ _ Office of Project Implementation, South Title: ___________ _ Division of Local Assistance Date: Date: ___________ _ Page 7 of 7 Non-Fed FSP 228 STATE OF CALIFORNIA. DEPARTMENT OF TRANSPORTATION PROGRAM SUPPLMENT AND CERTIFICATION FORM PSCF (REV. 01/2010) TO: STATE CONTROLLER'S OFFICE Claims Audits FROM: 3301 "C" Street, Rm 404 Sacramento, CA 95816 Department of Transportation SUBJECT: Encumbrance Document VENDOR I LOCAL AGENCY: RIVER COUNTY TRANSPORTATION COMMISSION CONTRACT AMOUNT: $ 1,653,564.00 PROCUREMENT 1YPE: Local Assistance CHAPTER STATUTES ITEM YEAR 33 2011 2660-1 02-042 2011/2012 Page 1 of 1 DATE PREPARED: PROJECT NUMBER: 2/28/2012 812000209 REQUISITION NUMBER I CONTRACT NUMBER: RQS 081200000474 PEC I PECT COE/Category AMOUNT 20.30.010.600 2620/0040 $ 1,653,564.00 ADA No til For individuals with sensory disabilities, this document is available in alternate formats. For information, call (915) 654-6410 of TDD (916) -3880 or write Records and Forms Management, 1120 N. Street. MS-89, Sacramento. CA 95814. 229 AGENDA ITEM 15 '--------~---~-- RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April 23, 2012 ------------------------------------------------1 TO: Western Riverside County Programs and Projects Committee r------------r------ FROM: Jillian Edmiston, Staff Analyst Brian Cunanan, Commuter and Motorist Assistance Manager lr------------r------ THROUGH: Robert Yates, Multimodal Services Director lr------------r------ SUBJECT: Amendments to Freeway Service Patrol Agreements I!::::========== STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 07-45-134-04, Amendment No. 4 to Agreement No. 07-45-134-00, with Pepe's Towing (Pepe's) to provide Freeway Service Patrol (FSP) services on Beat No. 18 in the amount of $115,000; 2) Approve Agreement No. 07-45-136-03, Amendment No. 3 to Agreement No. 07-45-136-00, with Pepe's to provide FSP services on Beat No. 19 in the amount of $200,000; 3) Approve Agreement No. 11-45-146-01, Amendment No. 1 to Agreement No. 11-45-146-00, with Pepe's to provide FSP services on Beat No. 4 in the amount of $800,000; and 4) Forward to the Commission for final action. BACKGROUND INFORMATION: Beat Nos. 18 and 19 At its May 2007 meeting, the Commission awarded two FSP contracts to Pepe's for tow truck services on Beat Nos. 18 and 19. Beat No. 18 operates with three trucks on Interstate 215 from the Riverside County line to Alessandro Boulevard. Beat No. 19 operates with two trucks on 1-21 5 from Alessandro Boulevard to State Route 74/41 h Street. Each agreement awarded was for a three-year term with two one-year options to extend the agreements. The two one-year options on each agreement have been executed. Subsequently, at its July 2011 meeting, the Commission approved a third amendment to increase the Beat No. 18 contract 07-45-134-00 by $180,000. This third amendment was necessary so that Pepe's could cover Beat No. 4 for a six-month period after Armada Towing declined the second and final option year of its agreement to serve the beat. In addition to covering the normal service hours Agenda Item 1 5 230 for Beat No. 4, Pepe's also assumed construction FSP service supporting the State Route 91 /Van Buren Boulevard interchange project from Armada. Pepe's was offered to cover this beat due to the close proximity of its tow yard location to the beat. Pepe's agreed to cover Beat No.4 at the same Beat No. 18 rate of $51.00 per hour. Tow services on Beat No. 4 have since been procured as noted below, and the Commission approved the award to Pepe's at its October 2011 meeting. The existing Beat No. 18 agreement is effective through June 30, 2012. Agreement 12-45-045-00 with Pepe's for service on Beat No. 18, approved by the Commission in April 2012 following a procurement process, will become effective July 1, 2012. The existing Beat No. 19 agreement has only been amended to execute the two one-year option terms and is effective through June 30, 2012. At that time, Agreement No. 12-45-046-00 with Pepe's for service on Beat No. 19, approved by the Commission in April 2012 following a procurement process, will become effective. At its February 2011 meeting, the Commission approved an amendment to the funding agreement with the California Highway Patrol (CHP) for construction FSP supervision over the 1-21 5 South widening project. Per the Traffic Management Plan, FSP must be provided during peak morning and evening commutes when freeway shoulders are closed. The shoulders on this project have been scheduled to be closed from March 2011 through August 2012. Though regular FSP service does not currently exist in the project boundaries of the 1-21 5 South widening project, Pepe's, operating on Beat No. 19 just north of the project, was offered the construction FSP work and accepted at the current contract rate of $52.00 per hour; however, the existing Beat No. 19 agreement was not amended for this additional work. Beat No.4 At its October 2011 meeting, the Commission awarded Agreement No. 11-45-146-00 to Pepe' s for tow truck services on Beat No. 4, which operates with two trucks on SR-91 from Magnolia Avenue to the 60/91/215 Interchange. The agreement awarded was for a three-year term with two one-year options. DISCUSSION: Due to the coverage of Beat No. 4 and construction FSP for the SR-91 /Van Buren Boulevard interchange project under the existing Beat No. 18 agreement, staff has been monitoring the contract balance to ensure the maximum obligation is not exceeded by the June 30, 2012, agreement end date. Based on an average of past monthly costs for services performed on Beat No. 18, it is necessary to amend Agreement No. 07-45-134-00 for Beat No. 18 to increase the total amount by Agenda Item 1 5 231 $115,000. Funding for the SR-91 /Van Buren Boulevard interchange project construction FSP was provided by reimbursements from the city of Riverside. While the CHP funding agreement was amended to support the additional supervision needed to provide construction FSP on the 1-215 South widening project, the existing Beat No. 19 agreement was not amended to increase the maximum obligation. It is now necessary to amend the existing Beat No. 19 agreement to increase the total amount of the agreement for construction-related FSP by $200,000. Funding for this increase is provided through transfers from the 1-215 South widening project funding. The Beat No. 4 agreement, still in its initial three-year term, needs to be amended to add a total of $800,000 to cover the costs of providing construction FSP for the SR-91 high occupancy vehicle (HOV) project. Funding for this increase will come from the California Department of Transportation. Staff recommends amending Agreement No. 07-45-134-00 with Pepe' s to add $115,000 to support FSP costs incurred during the final months of the contract ending June 30, 2012. Staff also recommends amending Agreement No. 07-45-136-00 with Pepe's to add $200,000 to support construction FSP costs incurred during the final months of the contract ending June 30, 2012. Finally, staff recommends amending Agreement No. 11-45-146-00 with Pepe' s to add $800,000 to support construction FSP services for the SR-91 HOV project. Financial Information In Fiscal Year Budget: I Yes I FY 2011 !12 Amount: I $415,000 N/A Year: FY 2012/13 + $700,000 State of California No Source of Funds: SAFE DMV Fees Budget Adjustment: N/A State -STIP GL!Project Accounting No.: 0021 7 3 81 014 00000 0000 201 45 81014 Fiscal Procedures Approved: ~~ I Date: I 04/12/12 Agenda Item 1 5 232 . AGENDA ITEM 16 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April 23, 2012 TO: Western Riverside County Programs and Projects Committee FROM: Jillian Edmiston, Staff Analyst Brian Cunanan, Commuter and Motorist Assistance Manager THROUGH: Robert Yates, Multimodal Services Director SUBJECT: Freeway Service Patrol Cost Effectiveness Evaluation STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 12-45-079-00 with DKS Associates (OKS) to provide a Freeway Service Patrol (FSP) cost effectiveness evaluation in the amount of $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 Riverside County Service Authority for Freeway Emergencies (RC SAFE), provides FSP service on nine beats on Interstates 1 5 and 21 5, and State Routes 60 and 91 . Annually, the program provides approximately 45,000 assists to stranded motorists along Riverside County freeways. Currently, the program operates 21 tow trucks patrolling over 80 miles of freeway, Monday through Friday during the peak commute hours of 5:30 a.m. to 8:30 a.m. and 3:00 p.m. to 7:00 p.m. The Friday afternoon shifts start two hours earlier at 1 :00 p.m. 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 the Caltrans, which developed the corresponding Local Funding Allocation Plan to distribute funds to participating jurisdictions, such as RC SAFE. In FY 2002/03, Caltrans worked with UC Berkeley's Institute of Transportation Studies to develop the Caltrans FSP Evaluation model (FSPE) and the Caltrans FSP- Predictor model (FSPP). These models were used to determine the cost- effectiveness of the 130 individual FSP beats throughout the state of California. Data collected for input in these models includes assist data, annual performance Agenda Item 16 233 measures, traffic volume data, incident data, vehicle miles traveled, vehicle hours traveled, and vehicular delay estimates. Subsequently, Caltrans entered into a contract with OKS Associates in FY 2010/11 to perform updated analyses using the existing models. OKS Associates was chosen for its experience in providing transportation analyses and solutions and for the expertise possessed by its senior data analyst and project manager, Mike Mauch. Mr. Mauch was on the UC Berkeley team that developed the original FSPE and FSPP models. One of many notable results from the FSP evaluation report, that was conducted for FYs 2007/08 -2010/11 and produced by OKS Associates, determined that RC SAFE has the second-highest cost-to-benefit ratio in the state. DISCUSSION: As a means of further improving RC SAFE's FSP cost-to-benefit ratio and exploring the potential for future service expansion, staff is recommending entering into an agreement with OKS Associates. Using its expertise with FSP modeling, OKS Associates will perform two tasks. Task 1 consists of projecting benefit cost ratios for potential FSP service expansions: Southwest Riverside County (Murrieta, Temecula), Coachella Valley, and weekend service on SR-91 . OKS Associates will work with staff to define the beats and perform beat sensitivity analysis to demonstrate the effects of altering key parameters on the beats. Key parameters include: beat length, starting and ending points, hours of operation, and the number of tow trucks on the beats. The goal of this analysis is to have optimal beat descriptions prepared and to help prioritize projects should additional funding opportunities arise to support FSP expansion or to pilot new FSP service. Task 2 will consist of OKS Associates providing FSP management support as needed by RC SAFE FSP program management. Services provided may include but are not limited to reviewing FSP management and operating procedures, reviewing and analyzing the cost effectiveness of existing FSP beats, and working with staff to determine if altering key parameters may result in a more cost effective FSP program. Staff recommends the award of Agreement No. 1 2-45-079-00 with OKS Associates in the amount of $25,000, consisting of $15,600 related to initial work under Tasks 1 and 2 and $9,400 related to potential extra work to be authorized under future task orders. Funding for these services is included in the current FY 2011/12 budget, as well as in the FY 2012/13 proposed budget. Agenda Item 1 6 234 Financial Information In Fiscal Year Budget: I YN/eAs Year: I FY 2011112 Amount: $5 ,000 _F_Y __ 20_1_2~/_1_3-+------~-----$_2~0~,0_0_0 ____ ~1 Source of Funds: I SAFE DMV Fees Budget Adjustment: No N/A GL!Project Accounting No.: 002173 65520 00000 0000 201 45 65520 04/12/12 Fiscal Procedures Approved: ~~ ~==============~==~==========d Attachments: 1) Draft Agreement No. 1 2-45-079-00 2) OKS Associates Scope of Work Agenda Item 1 6 235 ATTACHMENT 1 Agreement No. 12-45-079-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR COST EFFECTIVENESS EVALUATION SERVICES WITH OKS ASSOCIATES 1. PARTIES AND DATE. This Agreement is made and entered into this_ day of , 2012, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and OKS ASSOCIATES ("Consultant") a CALIFORNIA CORPORATION. 2. RECITALS. 2.1 Consultant desires to perform and assume responsibility for the provision of certain professional consulting services required by Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is a professional consultant, experienced in providing cost effectiveness evaluation services to public clients, is licensed in the State of California, and is familiar with the plans of Commission. 2.2 Commission desires to engage Consultant to render certain consulting services for the Freeway Service Patrol (FSP) Program Project ("Project") as set forth herein. 3. TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide professional consulting services and advice on various issues affecting the decisions of Commission regarding the Project and on other programs and matters affecting Commission, hereinafter referred to as "Services". The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules and regulations. 236 3.2 Term. The term of this Agreement shall be from the date first specified above to June 30, 2013, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. 3.3 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.4 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant under its supervision. Consultant will determine the means, method and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and Consultant is not an employee of Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall not be employees of Commission and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. 3.5 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Commission. 3.6 Substitution of Key Personnel. Consultant has represented to Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence and experience upon written approval of Commission. In the event that Commission and Consultant cannot agree as to the substitution of key personnel, Commission shall be entitled to terminate this Agreement for cause, pursuant to provisions of Section 3.16 of this Agreement. The key personnel for performance of this Agreement are as follows: 3.7 Commission's Representative. Commission hereby designates Executive Director, or his or her designee, to act as its representative for the performance of this Agreement ("Commission's Representative"). Commission's 2 237 representative shall have the power to act on behalf of Commission for all purposes under this Agreement. Consultant shall not accept direction from any person other than Commission's Representative or his or her designee. 3.8 Consultant's Representative. Consultant hereby designates L_INSERT NAME OR TITLE__j, or his or her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.9 Coordination of Services. Consultant agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, consultants and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Consultant shall perform the Services under this Agreement in a skillful and competent manner, consistent with the standard generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from Commission, any Services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant's errors and omissions. 3.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cai/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3 238 3.12 Insurance. 3.12.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.12.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) if Consultant has an employees, Workers' Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Practices Liability limits of $1,000,000 per accident. 3.12.3 [Reserved] 3.12.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (A) General Liability. The general liability policy shall be endorsed to state that: ( 1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the Services or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall 4 239 be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self- insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (C) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the Commission; and, (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the Commission, its directors, officials, officers, employees and agents. 3.12.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.12.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 5 240 3.12. 7 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.13 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.14 Fees and Payment. 3.14.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto. The total compensation shall not exceed Twenty-Five Thousand Dollars ($25,000) without written approval of Commission's Executive Director ("Total Compensation"). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.14.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Commission. 3.14.4 Extra Work. At any time during the term of this Agreement, Commission may request that Consultant perform Extra Work. As used herein, "Extra 6 241 Work" means any work which is determined by Commission to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from Commission's Executive Director. 3.15 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of Commission during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Upon termination, Consultant shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.16.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Consultant to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.16.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Commission may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.17 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: 7 242 CONSULT ANT: DSK Associates 8950 Cal Center Drive, Suite 340 Sacramento CA 95826-3225 Attn: ------- COMMISSION: Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.18 Ownership of Materials/Confidentiality. 3.18.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission's sole risk. 3.18.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media ("Intellectual Property") prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. 8 243 The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 3.18.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrati'<te or otherwise, arising out of or in connection with 9 244 this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Consultant shall indemnify and hold the Commission, its directors, officials, officers, agents, consultants, employees and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to alleged negligent acts, omissions or willful misconduct of the Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation, the payment of all consequential damages, attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the Commission, its directors, officials, officers, agents, consultants, employees and volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Commission or its directors, officials, officers, agents, consultants, employees and volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission and its directors, officials, officers, agents, consultants, employees and volunteers, for any and all legal expenses and costs, including reasonable attorney's fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and volunteers. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. This Section 3.21 shall survive any expiration or termination of this Agreement. 3.22 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties. 3.23 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.25 Commission's Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with this Project. 10 245 3.26 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 3.27 Prohibited Interests. 3.27.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Commission shall have the right to rescind this Agreement without liability. 3.27.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of Commission, during the term of his or her service with Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.28 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provi- sions of Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 3.29 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 3.30 Prevailing Wages. By its execution of this Agreement, Consultant certified that it is aware of the requirements of California Labor Code Sections 1720 et ~and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et ~ ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. The Commission shall provide Consultant with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification 11 246 or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.31 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant. 3.32 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 3.33 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day 12 247 and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 3.34 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, shall survive any such expiration or termination. 3.35 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.36 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.37 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.38 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. [SIGNATURES ON FOLLOWING PAGE] 13 248 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR COST EFFECTIVENESS EVALUATION SERVICES WITH OKS ASSOCIATES IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: __________ _ John J. Benoit Chair Approved as to Form: By: Best Best & Krieger LLP General Counsel 14 249 OKS ASSOCIATES By: Signature Name Title Attest: By: ------------~----- Its: Secretary EXHIBIT "A" SCOPE OF SERVICE DKS Associates TRAN PC TATiO SO UTIONS Freeway Service Patrol (FSP) Cost Effectiveness Evaluation and Management Support Services SCOPE OF SERVICES ATTACHMENT 2 Task 1-FSP Cost Effectiveness Analysis: OKS will provide up to 80 hours oftechnical support focused on performing a set of cost effectiveness analyses whereby the benefit-to-cost ratio will be forecasted for a preselected set of FSP beat desctiptions. OKS will work with RCTC FSP management to define and quantify this set of FSP beats to be analyzed. Upon RCTC approval, OKS will perform a FSP beat sensitivity analysis showing the effects (or sensitivity) of altering key parameters on forecasted FSP performance (benefit-to-cost ratio). These key parameters would include FSP beat structure (beat length, starting and end points) and proposed level of FSP service (hours of operation, and/or the number of FSP tow trucks on the proposed beats). The work may also include analyzing the performance of weekend FSP service on SR-91 in Riverside County. OKS will work with RCTC FSP management to design a plausible set of plausible FSP beat desctriptions for each of the three proposed freeway corridors. Subsequently, OKS would collect the data inputs required for the FSPE/P model and perform a cost-benefit analysis on each of the proposed scenarios showing the expected performance of each. This task will be a time and materials allocation to be used as directed by RCTC FSP management. The cost effectiveness tool developed for LA Metro may also be used as it provides additional information on truck allocation across FSP Beats in insights to cost effectiveness of new FSP service. The findings will be presented to RCTC FSP management as a brief technical memorandum. OKS will also provide RCTC with the FSPE/P model (Excel spreadsheets) and provide training such that RCTC FSP managers will be able to modify parameters and re-run the analysis and to review and verify study findings. Task 2 -Provide FSP Management Support to RCTC: OKS will work as an extension of RCTC staffto provide FSP management support on an as needed basis as directed by RCTC FSP program managers. These service include (but are not limited to) reviewing FSP management and operating procedures, reviewing and analyzing the cost effectiveness of existing FSP beats, and working with RCTC to determine if altering the descripitions (beat lengths, starting and ending points, number of trucks and/or hours of FSP operation) would result in a more cost effective FSP program in Riverside County. For both Task 1 and Task 2, the Caltrans Freeway Service Patrol Evaluation model (FSPE) version 15 (recently updated for Caltrans by OKS Associates) will be used in the evaluation of all existing 8950 Cal Center Dr~ve, St.Hte 340 Sacramento CA qs326-3225 368--2000 '-NV.rl>l. d ksassociates. corn 250 EXHIBIT"A" SCOPE OF SERVICE RCTC FSP Evaluation and Management Support: Scope of Services March 26, 2011 Page2of2 FSP beats. The Caltrans FSP-Predictor model (FSPP) version 15 (recently updated for Caltrans by OKS Associates) will be used in the evaluation of all proposed FSP beats. For proposed FSP beats, freeway volumes, VMT, VHT, VHT-delays, and freeway accident/collision data may also be used in assessing the potential or viability of FSP service on proposed beats. Terms In consideration of the performance of these services, OKS Associates will be compensated on a time and materials basis. Task 1 will be budgeted at 80 hours with an initial budget of$12,500. Task 2 will be budgeted at 20 hours with an intial budget of $3,1 00 based upon the scope of services and level of effort presented above. OKS will invoice monthly based upon the time and materials expended. Payments are due on a net 30 day basis. A service charge of 1-1 /4 percent per month compounded will be assessed on billings not paid when due. If payment of our invoices is not made within 45 days of the due date, OKS reserves the right to cease work on this project until such time as payment is received. Should the services not be authorized in sixty (60) days; or should changes occur in the scope or level of effort; or should the completion date extend beyond June 30, 2013 due to circumstances beyond OKS's control; we reserve the right to revise the scope, our billing rates, budget and schedule to reflect then current conditions. Such revisions will be effected through amendments to the agreement. 251