Loading...
08 August 25, 2014 Western Riverside County Programs and ProjectsRIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE MEETING AGENDA TIME: 1:30 p.m. DATE: Monday, August 25, 2014 LOCATION: BOARD ROOM County of Riverside Administrative Center 4080 Lemon Street, First Floor, Riverside  COMMITTEE MEMBERS  Frank Johnston, Chair / Micheal Goodland, City of Jurupa Valley Ben Benoit, Vice Chair / Timothy Walker, City of Wildomar Deborah Franklin / Art Welch, City of Banning Karen Spiegel / Eugene Montanez, City of Corona Adam Rush / Ike Bootsma, City of Eastvale Scott Mann / Wallace Edgerton, City of Menifee Jesse Molina / Yxstian Gutierrez, City of Moreno Valley Berwin Hanna / Kathy Azevedo, City of Norco Daryl Busch / Al Landers, City of Perris Andrew Kotyuk / Scott Miller, City of San Jacinto Kevin Jeffries, County of Riverside, District I Marion Ashley, County of Riverside, District V  STAFF  Anne Mayer, Executive Director John Standiford, Deputy Executive Director  AREAS OF RESPONSIBILITY  Air Quality, Capital Projects, Communications and Outreach Programs, Intermodal 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. COMM-WRC-00021 Riverside County Transportation Commission TO: FROM: DATE: SUBJECT: Riverside County Transportation Commission Jennifer Harmon, Office and Board Services Manager August 20, 2014 Possible Conflicts of Interest Issues-Western Riverside County Programs and Projects Committee Agenda of August 25, 2014 The August 25, 2014 agenda of the WRC Programs and Projects Committee includes items which may raise possible conflicts of interest. A RCTC member may not participate in any discussion or action concerning a contract or amendment if a campaign contribution of more than $250 is received in the past 12 months or 3 months following the conclusion from any entity or individual listed. Agenda Item No. 7 -Agreement for Toll Organization Planning Support Services Consultant(s): Cambria Solutions, Inc. 515 S. Flower Street, 36th Floor Los Angeles, CA 90071 Greg Hulsizer, Vice President Agenda Item No. 8-Agreement with SC Engineering for the Preparation of Consent to Common Use Agreements. Legal Descriptions, and Plats to Reestablish Utility Companies' Prior Rights Relocated by the State Route 74 Widening Project Between Dexter Avenue in the City of Lake Elsinore and fh Street in the City of Perris and Donation Agreement to Transfer Mitigation Property to the Western Riverside County Regional Conservation Authority Consultant(s): SC Engineering 16096 Chiwi Road Apple Valley, CA 92307 R.S. Chavez, President 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, August 25, 2014 BOARD ROOM County Administrative Center 4080 Lemon Street, First Floor Riverside, California In compliance with the Brown Act and Government Code Section 54957.5, agenda materials distributed 72 hours prior to the meeting, which are public records relating to open session agenda items, will be available for inspection by members of the public prior to the meeting at the Commission office, 4080 Lemon Street, Third Floor, Riverside, CA, and on the Commission’s website, www.rctc.org. In compliance with the Americans with Disabilities Act and Government Code Section 54954.2, if you need special assistance to participate in a Committee meeting, please contact the Clerk of the Board at (951) 787-7141. Notification of at least 48 hours prior to meeting time will assist staff in assuring that reasonable arrangements can be made to provide accessibility at the meeting. 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL 4. PUBLIC COMMENTS – Each individual speaker is limited to speak three (3) continuous minutes or less. The Committee may, either at the direction of the Chair or by majority vote of the Committee, waive this three minute time limitation. Depending on the number of items on the Agenda and the number of speakers, the Chair may, at his/her discretion, reduce the time of each speaker to two (2) continuous minutes. Also, the Committee may terminate public comments if such comments become repetitious. In addition, the maximum time for public comment for any individual item or topic is thirty (30) minutes. Speakers may not yield their time to others without the consent of the Chair. Any written documents to be distributed or presented to the Committee shall be submitted to the Clerk of the Board. This policy applies to Public Comments and comments on Agenda Items. 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. Western Riverside County Programs and Projects Committee August 25, 2014 Page 2 5. APPROVAL OF MINUTES – APRIL 28, 2014 6. ADDITIONS/REVISIONS (The Committee may add an item to the Agenda after making a finding that there is a need to take immediate action on the item and that the item came to the attention of the Committee subsequent to the posting of the agenda. An action adding an item to the agenda requires 2/3 vote of the Committee. If there are less than 2/3 of the Committee members present, adding an item to the agenda requires a unanimous vote. Added items will be placed for discussion at the end of the agenda.) 7. AGREEMENT FOR TOLL ORGANIZATION PLANNING SUPPORT SERVICES Page 1 Overview This item is for the Committee to: 1) Award Agreement No. 14-31-155-00 to Cambria Solutions, Inc. (Cambria) for toll organization planning support services in the amount of $218,840, plus a contingency amount of $31,160, for a total amount not to exceed $250,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work as may be required for the project; and 4) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee August 25, 2014 Page 3 8. AGREEMENT WITH SC ENGINEERING FOR THE PREPARATION OF CONSENT TO COMMON USE AGREEMENTS, LEGAL DESCRIPTIONS, AND PLATS TO REESTABLISH UTILITY COMPANIES’ PRIOR RIGHTS RELOCATED BY THE STATE ROUTE 74 WIDENING PROJECT BETWEEN DEXTER AVENUE IN THE CITY OF LAKE ELSINORE AND 7TH STREET IN THE CITY OF PERRIS AND DONATION AGREEMENT TO TRANSFER MITIGATION PROPERTY TO THE WESTERN RIVERSIDE COUNTY REGIONAL CONSERVATION AUTHORITY Page 34 Overview This item is for the Committee to: 1) Award Agreement No. 14-31-163-00 to SC Engineering for engineering services for the preparation of consent to common use agreements (CCUAs), legal descriptions, and plat maps to establish utility easements for utilities with prior rights relocated by the State Route 74 widening project between Dexter Avenue in the city of Lake Elsinore and 7th Street in the city of Perris, for an amount of $134,358, plus a contingency amount of $13,450, for a total amount not to exceed $147,808; 2) Approve the Donation Agreement No. 15-31-018-00 between the Commission and the Western Riverside County Regional Conservation Authority (RCA) granting land acquired for mitigation purposes on the SR-74 widening project; 3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, on behalf of the Commission; 4) Authorize the Executive Director to approve release of contingency work up to the total authorized amount as may be required for the project; 5) Authorized the Executive Director, pursuant to legal counsel review, to execute agreements with Caltrans to reflect non-funding changes related to the project on behalf of the Commission; and 6) Forward to the Commission for final action. 9. QUITCLAIM DEED CONTAINING COVENANTS AND RESTRICTIONS INCLUDING A POWER OF TERMINATION AND THE OPTION TO PURCHASE AGREEMENT FOR THE OLD ELSINORE MUSEUM LINE Page 80 Overview This item is for the Committee to: 1) Approve the quitclaim deed containing covenants and restrictions including a power of termination (quitclaim deed) and the option to purchase agreement (agreement) between the Commission and the city of Perris for the Old Elsinore Museum Line (OEML) as well as the area between 7th and 10th Streets (conveyed properties); 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the quitclaim deed and the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee August 25, 2014 Page 4 10. AGREEMENT WITH M. S. CONSTRUCTION MANAGEMENT GROUP FOR THE CONSTRUCTION OF THE RIVERSIDE DOWNTOWN STATION OPERATIONS CONTROL CENTER, IN THE CITY OF RIVERSIDE Page 96 Overview This item is for the Committee to: 1) Award Agreement No. 14-31-149-00 to M. S. Construction Management Group for the construction of the Riverside Downtown Station Operations Control Center (RDNOCC), in the amount of $1,533,891, plus a contingency amount of $153,389, for a total amount not to exceed $1,687,280, pending final bid analysis; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Amend the FY 2014/15 Commuter Rail Short Range Transit Plan (SRTP) to allocate an additional $250,000 of Transportation Development Act (TDA) State Transit Assistance (STA) funds for construction of the RDNOCC; 4) Reprogram $100,000 of STA funds from the Perris Multimodal project to the RDNOCC; 5) Approve an increase of $737,280 in FY 2014/15 budgeted expenditures for the RDNOCC project; 6) Approve an increase of $350,000 in FY 2014/15 budgeted transfer in to the RDNOCC and corresponding transfer out from the STA fund; 7) Authorize the Executive Director to approve contingency work as may be required for the project; and 8) Forward to the Commission for final action. 11. FISCAL YEAR 2014/15 SAN BERNARDINO ASSOCIATED GOVERNMENTS AGREEMENT FOR INLAND EMPIRE RIDESHARE AND 511 SERVICES Page 99 Overview This item is for the Committee to: 1) Approve Agreement No. 14-41-031-00 with the San Bernardino Associated Governments (SANBAG) as part of the Commission’s continuing bi-county partnership with SANBAG to deliver commuter/employer rideshare services and operation of the Inland Empire 511 (IE511) system for FY 2014/15 for an amount not to exceed $1,648,300; 2) Authorize the Chair or 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 August 25, 2014 Page 5 12. COMMISSIONERS / 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. 13. ADJOURNMENT The next Western Riverside County Programs and Projects Committee meeting is scheduled to be held at 1:30 p.m., Monday, September 22, 2014, Board Chambers, First Floor, County Administrative Center, 4080 Lemon Street, Riverside. RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE ROLL CALL August 25, 2014 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 Present ~ ' ~ ~ ~ D ;zf Absent D D D D D D D D D D ,% D RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS SIGN-IN SHEET August 25, 2014 NAME AGENCY E MAIL ADDRESS -JC..~Sf; L-MoLIAJA M DRC..IJ 0 '!IJ L Lt::. v l'£$$-.s: m,Y MnllAl./Vl.G /-;?h/~ /2 ,,:,,;-/-) • ,e:::::'r > /'.-c:..--,,. / c___ 'JJtbb.r ~t1.~14l~ Vt~ ~A-nn> n1t1 ~~ \>.rf f.) ii . fl) J4- I "\I•' IV }Joltw \ A~,,,,,__/ ~~«-:t Dsr.L. ~L ~h.Vl~k 0~A vl'/J lroi / ll ,,/] --·~ I I ., ¥ vv-0; :1/11 /J~ ( ~ ; , , A-( lJ Lc Y !":Z_ \ V ~/.<., .t ( 11 \~· r· c-v~ --/J S ~- .. l+ A I () A..I ~tl!v 1( ! T JJ 'd/!#!U t/4tf jJ; ;£-C::~ .4 .IA~ {/ ~k;;,,/J(j//pl / (~ ~L t-(.d_ __ -UJl,~-7{) {_ C lL.-j L--~ IT u RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Monday, April 28, 2014 MINUTES 1. CALL TO ORDER The meeting of the Western Riverside County Programs and Projects Committee was called to order by Chair Frank Johnston 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 Ben Benoit led the Western Riverside County Programs and Projects Committee in a flag salute. 3. ROLL CALL Members/Alternates Present Members Absent Marion Ashley Andrew Kotyuk Ben Benoit Jesse Molina Daryl Busch Adam Rush Deborah Franklin Berwin Hanna Kevin Jeffries* Frank Johnston Scott Mann Karen Spiegel* *Arrived after the meeting was called to order 4. PUBLIC COMMENTS There were no requests to speak from the public. 5. APPROVAL OF MINUTES – MARCH 24, 2014 M/S/C (Ashley/Busch) to approve the minutes as submitted. RCTC WRC Programs and Projects Committee Minutes April 28, 2014 Page 2 6. ADDITIONS/REVISIONS There were no additions or revisions to the agenda. At this time, Commissioners Karen Spiegel and Kevin Jeffries joined the meeting. 7. CONSTRUCTION AND MAINTENANCE AGREEMENTS WITH BURLINGTON NORTHERN AND SANTA FE RAILROAD FOR THE STATE ROUTE 91 CORRIDOR IMPROVEMENT PROJECT David Thomas, Toll Project Manager, presented the scope of the construction and maintenance agreements with Burlington Northern and Santa Fe Railroad for the State Route 91 Corridor Improvement Project (SR-91 CIP). Anne Mayer, Executive Director, thanked BNSF and Caltrans for their commitment to this project. M/S/C (Benoit/Ashley) to: 1) Approve the construction and maintenance (C&M) agreements with Burlington Northern and Santa Fe Railroad (BNSF) for the State Route 91 Corridor Improvement Project (SR-91 CIP) in the amount $7,321,341, plus a contingency amount of $732,134, for a total amount not to exceed $ 8,053,475; a) Agreement No. 14-31-115-00 for West Prado Overhead in the amount of $866,154; b) Agreement No. 14-31-113-00 for East Prado Overhead in the amount of $1,007,242; c) Agreement No. 14-31-114-00 for West Porphyry Overhead in the amount of $4,985,624; and d) Agreement No. 14-31-112-00 for East Porphyry Overhead in the amount of $462,321; Subject to any increases (not to exceed the authorized contingency) or reductions in final amounts, as described; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work up to the total not to exceed amount, as required for the agreements; and 4) Forward to the Commission for final action. RCTC WRC Programs and Projects Committee Minutes April 28, 2014 Page 3 8. CONSTRUCTION AGREEMENT WITH DALKE & SONS CONSTRUCTION, INC. FOR STATE ROUTE 91 CORRIDOR IMPROVEMENT PROJECT RIGHT OF WAY PROPERTY MITIGATION PACKAGE 3 David Thomas presented the scope of the agreement with Dalke & Sons Construction, Inc. (Dalke & Sons) for SR-91 CIP Right of Way Property Mitigation Package 3. In response to Commissioner Deborah Franklin’s question regarding the low bid, David Thomas stated there were no anomalies that stood out as to why the lowest bid was significantly lower than the engineers estimate. In response to Commissioner Spiegel’s question regarding disadvantaged business enterprise (DBE) requirements, David Thomas stated Dalke & Sons did not achieve any DBE participation, however, it demonstrated a good faith effort. Anne Mayer explained the DBE process to the Commissioners. M/S/C (Franklin/Benoit) to: 1) Award Agreement No. 14-31-081-00 to Dalke & Sons Construction, Inc. (Dalke & Sons) for the construction of State Route 91 Corridor Improvement Project (SR-91 CIP) Right of Way Property Mitigation Package 3 in the amount of $5,147,846, plus a contingency amount of $514,785, for a total amount not to exceed $5,662,631; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work pursuant to the agreement terms up to the total amount; and 4) Forward to the Commission for final action. 9. AMENDMENT TO TRANSPORTATION UNIFORM MITIGATION FEE REGIONAL ARTERIAL AGREEMENT FOR THE INTERSTATE 15/RAILROAD CANYON ROAD INTERCHANGE PROJECT IN THE CITY OF LAKE ELSINORE Alex Menor, Capital Projects Manager, presented the scope of the amendment to transportation uniform mitigation fee regional arterial agreement for the Interstate 15/Railroad Canyon Road interchange project in the city of Lake Elsinore. In response to Commissioner Jeffries question regarding roundabouts, Alex Menor stated staff is looking at all five intersections for roundabout alternatives. Anne Mayer stated this project is funded by Transportation Uniform Mitigation Fees (TUMF). The Commission is managing the project for the city of Lake Elsinore. RCTC WRC Programs and Projects Committee Minutes April 28, 2014 Page 4 M/S/C (Benoit/Franklin) to: 1) Approve Agreement No. 10-72-016-03, Amendment No. 3 to Agreement No. 10-72-016-00, with the city of Lake Elsinore (Lake Elsinore) for the Interstate 15/ Railroad Canyon Road interchange project to authorize additional scope to analyze a roundabout alternative as part of the project approval and environmental document (PA&ED) phase with an additional $600,000 of TUMF funds to be allocated to this phase for a total amount not to exceed $2,205,000; 2) Approve Agreement No. 11-31-107-03, Amendment No. 3 to Agreement No. 11-31-107-00, with SC Engineering to add a roundabout alternative to the PA&ED services associated with the project in the amount of $500,009, plus an additional contingency amount of $25,000 for a total increase of $525,009, resulting in a total not to exceed amount of $1,230,009; 3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements on behalf of the Commission; 4) Authorize the Executive Director to approve release of contingency work up to the total authorized amount as may be required for the project; 5) Authorize the Executive Director, pursuant to legal counsel review, to execute agreements with Caltrans to reflect non-funding changes related to the project on behalf of the Commission; and 6) Forward to the Commission for final action. Abstain: Jeffries 10. PROPERTY CONVEYANCE AT PEDLEY STATION Mark Lancaster, Right of Way Manager, presented the details of the property conveyance at the Pedley Station. At Commissioner Johnston’s request, Mark Lancaster clarified which portions of the parking lot will be exchanged for the driveway area. M/S/C (Franklin/Jeffries) to: 1) Approve Agreement No. 14-33-104-00 between the Commission and Sergio Hernandez and Angela Avila, property owner of Assessor’s Parcel Number (APN) 165-190-044, for property conveyances to perfect title at the Pedley Station without any monetary compensation exchanged between the parties; RCTC WRC Programs and Projects Committee Minutes April 28, 2014 Page 5 2) Authorize the Chair or 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. 11. AGREEMENT FOR CONSTRUCTION MANAGEMENT SERVICES, MATERIALS TESTING, AND CONSTRUCTION SURVEYING FOR RIVERSIDE DOWNTOWN STATION OPERATIONS CONTROL CENTER Patti Castillo, Capital Projects Manager, presented the scope of the agreement for construction management services, materials testing, and construction surveying for Riverside Downtown Station Operations Control Center. M/S/C (Busch/Benoit) to: 1) Award Agreement No. 14-31-075-00 to Abacus Project Management, Inc. (Abacus) for construction management (CM), materials testing, and construction surveying services for the Riverside Downtown Station Operations Control Center (RDNOCC), in the amount of $165,862, plus a contingency amount of $16,586, for a total amount not to exceed $182,448; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work as may be required for the project; and 4) Forward to the Commission for final action. 12. FISCAL YEAR 2014/15 MEASURE A COMMUTER ASSISTANCE BUSPOOL SUBSIDY FUNDING CONTINUATION REQUESTS Jillian Guizado, Staff Analyst, presented the details of the FY 2014/15 Measure A commuter assistance buspool subsidy funding continuation requests. In response to Commissioner Franklin’s questions regarding whether payments are made to the rider or the buspool, Jillian Guizado stated funds go to the buspool provider. Additionally, to start a new buspool or vanpool, interested parties can contact the Commission. M/S/C (Edgerton/Franklin) to: 1) Authorize payment of $1,645/month maximum subsidy per buspool for the period July 1, 2014 to June 30, 2015, to the existing Mira Loma, Riverside, and Riverside II buspools; RCTC WRC Programs and Projects Committee Minutes April 28, 2014 Page 6 2) Require subsidy recipients to meet monthly buspool reporting requirements as supporting documentation to receive payments; and 3) Forward to the Commission for final action. 13. AMENDMENT TO FREEWAY SERVICE PATROL AGREEMENT Jillian Guizado presented the scope of the amendment to freeway service patrol agreement. M/S/C (Hanna/Benoit) to: 1) Approve Agreement No. 12-45-046-01, Amendment No. 1 to Agreement No. 12-45-046-00, with Pepe’s Towing (Pepe’s) to provide freeway service patrol (FSP) services on the Commission’s Interstate 215 Central widening project in the amount of $475,000; 2) Authorize the Chair or 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. Abstain: Ashley 14. COMMISSIONERS / STAFF REPORT 14A. Anne Mayer reminded Commissioners there will not be a Western Riverside County Programs and Projects Committee meeting in May due to the Memorial Day holiday. 15. ADJOURNMENT AND NEXT MEETING There being no further business for consideration by the Western Riverside County Programs and Projects Committee, the meeting was adjourned at 2:15 p.m. The next meeting of the Western Riverside County Programs and Projects Committee is scheduled for April 28, 2014, at 1:30 p.m. Respectfully submitted, Jennifer Harmon Clerk of the Board AGENDA ITEM 7 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 25, 2014 TO: Western Riverside County Programs and Projects Committee FROM: Michael Blomquist, Toll Program Director THROUGH: Anne Mayer, Executive Director SUBJECT: Agreement for Toll Organization Planning Support Services STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement No. 14-31-155-00 to Cambria Solutions, Inc. (Cambria) for toll organization planning support services in the amount of $218,840, plus a contingency amount of $31,160, for a total amount not to exceed $250,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work as may be required for the project; and 4) Forward to the Commission for final action. BACKGROUND INFORMATION: The Commission’s Toll Program Development In December 2006, the Commission adopted the 10-Year Western Riverside County Highway Delivery Plan (Delivery Plan), which calls for the development of tolled express lane corridors within State Route 91 and Interstate 15. The 91 Project will add tolled express lanes and general purpose lanes along SR-91 from the Orange County line to Pierce Street and along I-15 from SR-91 to Ontario Avenue. Final design and construction are underway with a planned traffic lane opening in 2017. The I-15 Express Lanes will add approximately 14 miles of tolled express lanes along I-15 from SR-60 to Cajalco Road. Preliminary engineering and environmental studies are underway with a planned traffic lane opening in 2020. Future Operating Toll Agency With the future opening of tolled express lanes, the Commission will further expand its mission to improve mobility by becoming an operating toll agency for the first time in its history. The Commission has embarked on an ambitious Express Lanes program that will operate for many decades. Upon opening the 91 Express Lanes in 2017 and the I-15 Express Lanes planned for 2020, the Commission will operate and maintain over 70 lane-miles of tolled express lanes, be Agenda Item 7 1 responsive to express lane customer issues, make debt payments, collect toll revenue, process transactions, maintain assets, and be responsible for express lane safety and motorist assistance. Structuring the Organization for Success In late 2012 the Commission contracted with Cambria to perform an organization study to help the Commission determine the appropriate future structure of the organization. The structure needs to provide the skills, experience, and flexibility to allow the Commission to successfully operate the SR-91 and I-15 Express Lanes, consider best industry practices, and stay consistent with the Commission’s culture of having a lean staff. Over approximately eight months, Cambria and staff developed toll program guiding principles, reviewed other agencies’ best practices regarding organization structure, conducted an internal organizational assessment, developed a Commission toll program organization model, developed a high-level implementation strategy, and outlined necessary future implementation activities by function. At its October 9, 2013 meeting, the Executive Committee provided input to staff regarding: • Future organizational changes necessary to structure the Commission for its recognized future as an operating toll agency by 2017; • The proposed hybrid organizational structure to provide needed functions by both Toll Program staff and other Commission staff while maintaining a small Commission staff overall; and • The proposed plan to contract out the majority of the future operations and maintenance work to the private sector while maintaining oversight and overall program management responsibilities. Staff sought and received confirmation from the Executive Committee for the general direction and principles by which the Commission’s future Toll Program Organization would operate. The Executive Committee authorized staff to issue a future request for proposal (RFP) for additional Toll Program Organization services including plans and strategies in the general areas of hiring and retention, information technology, and toll operations. The Executive Committee also authorized staff to return to the Commission in the future for specific authorization requests to hire personnel, contract authority for necessary services, and budget authority needed to implement the Toll Program Organization. Procurement Process Staff determined the weighted factor method of source selection to be the most appropriate for this procurement, as it allows the Commission to identify the most advantageous proposal with price and other factors considered. Non-price factors include elements such as qualifications of firm, qualifications of personnel, understanding and approach, and the ability to respond to the requirements as set forth under the terms of RFP No. 14-31-155-00. Agenda Item 7 2 RFP No. 14-31-155-00 for toll organization planning support services was released by staff on May 22, 2014. A public notice was advertised in the Press Enterprise, and the RFP was posted on the Commission’s PlanetBids website, which is accessible through the Commission’s website. Utilizing PlanetBids, emails were sent to 222 firms, 29 of which are located in Riverside County. Through the PlanetBids site, 42 firms downloaded the RFP, 8 of these firms are located in Riverside County. A pre-proposal conference was held on June 4, attended by six firms; no firms were local to Riverside County. Staff responded to all questions submitted by potential proposers prior to the June 12 clarification deadline date. Two firms – Cambria (Los Angeles) and Transpo Group (Newport Beach) – submitted responsive and responsible proposals prior to the July 3, 2:00 p.m. submittal deadline. Utilizing the evaluation criteria set forth in the RFP, the firms were evaluated and scored by an evaluation committee comprised of Commission staff. Based on the overall score according to the evaluation criteria listed in the RFP, the evaluation committee recommends Cambria for toll organization planning support services, as it earned the highest total evaluation scores. Subsequently, staff negotiated the scope (including the appropriate level of effort, labor categories/mix, etc.), cost, and schedule proposal from Cambria for the project services and established a fair and reasonable price. Current Toll Program Organization Planning Services Draft Agreement No. 14-31-155-00 for additional toll program organization planning services is attached to this agenda report and reflects the following general scope of services (Exhibit A to the agreement): Human Resources • Matrix Organization Gap Analysis • New Job Descriptions, Modify Existing Job Descriptions • Compensation Recommendations and Recruitment Strategy • Toll Team Development Information Technology Plan Toll Program Management, Communications, and Marketing • Matrix Function Plan • Performance Metrics Strategy • Operations Risk Management Strategy • Asset Management Strategy • Express Lanes Customer Service Strategy • Express Lanes Communication and Marketing Strategy Agenda Item 7 3 Staff estimates the services to be performed would start in September 2014 after issuance of a notice to proceed for a duration of up to 18 months. The negotiated cost is $218,840 (Exhibit C to the agreement) which is within the Commission’s FY 2014/15 budget of $250,000 for this contract. Given this is the Commission’s first contract for these type of services and the higher degree of uncertainty for work scope additions, staff is proposing to add $31,160 of contract contingency (14.2 percent of the contract value) for a total amount not to exceed $250,000. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2014/15 FY 2015/16 Amount: $ 175,000 75,000 Source of Funds: State Transportation Improvement Program-Planning, Programming, and Monitoring Funds Budget Adjustment: No N/A GL/Project Accounting No.: 629199 81501 00000 0000 262 31 81501 Fiscal Procedures Approved: Date: 08/11/14 Attachment: Draft Agreement No. 14-31-155-00 Agenda Item 7 4 17336.00000\8752982.1 EXHIBIT A Agreement No. 14-31-155-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR TOLL ORGANIZATION PLANNING SUPPORT SERVICES WITH CAMBRIA SOLUTIONS, INC. 1. PARTIES AND DATE. This Agreement is made and entered into this day of , 2014, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co- mmission") and CAMBRIA SOLUTIONS, INC. ("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 toll organization planning support services to public clients, is licensed in the State of California, and is familiar with the plans of Commission. 2.2 Commission desires to engage Consultant to render certain consulting services for the State Route 91 Corridor Improvement Project and Interstate 15 Express Lanes Project ("Project") as set forth herein. 3. TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide professional consulting services and advice on various issues affecting the decisions of Commission regarding the Project and on other programs and matters affecting Commission, hereinafter referred to as "Services". The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules and regulations. 3.2 Term. The term of this Agreement shall be from the date first specified above to June 30, 2016, 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. 5 17336.00000\8752982.1 2 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: Greg Hulsizer, Diana Lee, Scott Shepard, Kimanh Doan, Jennifer Crosson, and Naomi Whitacre. 3.7 Commission’s Representative. Commission hereby designates Michael Blomquist, or his designee, to act as its representative for the performance of this Agreement ("Commission’s Representative"). Commission's representative shall have the power to act on behalf of Commission for all purposes under this Agreement. Consultant shall not accept direction from any person other than Commission's Representative or his or her designee. 3.8 Consultant’s Representative. Consultant hereby designates Greg Hulsizer, or his designee, to act as its representative for the performance of this Agreement 6 17336.00000\8752982.1 3 ("Consultant’s Representative"). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.9 Coordination of Services. Consultant agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, consultants and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Consultant shall perform the Services under this Agreement in a skillful and competent manner, consistent with the standard generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from Commission, any Services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant’s errors and omissions. 3.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 7 17336.00000\8752982.1 4 3.12 Insurance. 3.12.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.12.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) if Consultant has an employees, Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 3.12.3 [Reserved] 3.12.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (A) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) Bodily Injury and Property Damage; (2) Personal Injury/Advertising 8 17336.00000\8752982.1 5 Injury; (3) Premises/Operations Liability; (4) Products/Completed Operations Liability; (5) Aggregate Limits that Apply per Project; (6) Explosion, Collapse and Underground (UCX) exclusion deleted; (7) Contractual Liability with respect to this Agreement; (8) Broad Form Property Damage; and (9) Independent Consultants Coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to the Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (B) Automobile Liability. (i) The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (C) Workers’ Compensation and Employers Liability Coverage. (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self -insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. 9 17336.00000\8752982.1 6 (D) All Coverages. (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, its directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any Insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify 10 17336.00000\8752982.1 7 the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. 3.12.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.12.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 3.12.7 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.12.8 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may 11 17336.00000\8752982.1 8 approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 3.13 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.14 Fees and Payment. 3.14.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto. The total compensation shall not exceed Two Hundred Eighteen Thousand Eight Hundred Forty Dollars ($218,840) without written approval of Commission's Executive Director (“Total Compensation”). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.14.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Commission. 3.14.4 Extra Work. At any time during the term of this Agreement, Commission may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by Commission to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from Commission's Executive Director. 3.15 Accounting Records. Consultant shall maintain complete and accurate 12 17336.00000\8752982.1 9 records with respect to all costs and expenses incurred and fees charged under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of Commission during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Upon termination, Consultant shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.16.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Consultant to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.16.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Commission may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.17 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: CONSULTANT: COMMISSION: Cambria Solutions, Inc. Riverside County 515 S. Flower Street, 36th Floor Transportation Commission Los Angeles, CA 90071 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Attn: Greg Hulsizer Attn: Michael Blomquist 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. 13 17336.00000\8752982.1 10 3.18 Ownership of Materials/Confidentiality. 3.18.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 3.18.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or 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. 14 17336.00000\8752982.1 11 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. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission in order to allow the Commission to pursue legal remedies designed to limit any confidential information required to be disclosed or to assure the confidential treatment of the information following disclosure. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.18.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 15 17336.00000\8752982.1 12 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, agents, consultants, employees and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of the Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation, the payment of all consequential damages, attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the Commission, its directors, officials, officers, agents, consultants, employees and volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Commission or its directors, officials, officers, agents, consultants, employees and volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission and its directors, officials, officers, agents, consultants, employees and volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant’s obligation to indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and volunteers. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. This Section 3.21 shall survive any expiration or termination of this Agreement. 3.22 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended, or modified by a writing signed by both parties. 3.23 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 16 17336.00000\8752982.1 13 3.25 Commission's Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with this Project. 3.26 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 3.27 Prohibited Interests and Conflicts. 3.27.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Commission shall have the right to rescind this Agreement without liability. 3.27.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of Commission, during the term of his or her service with Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.27.3 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee’s regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 3.27.4 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 3.28 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant pro visions of Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 17 17336.00000\8752982.1 14 3.29 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 3.30 Prevailing Wages. By its execution of this Agreement, Consultant certified that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. The Commission shall provide Consultant with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.31 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. 18 17336.00000\8752982.1 15 3.32 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 3.33 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub- consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 3.34 Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.35 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.36 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.37 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.38 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.39 Incorporation of Recitals. The recitals set forth above are true an d correct and are incorporated into this Agreement as though fully set forth herein. 19 17336.00000\8752982.1 16 3.40 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.41 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties’ understanding concerning the performance of the Services. 3.42 Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.43 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein, without the prior written consent of the Commission. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.44 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. [SIGNATURES ON FOLLOWING PAGE] 20 17336.00000\8752982.1 17 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR TOLL ORGANIZATION PLANNING SUPPORT SERVICES WITH CAMBRIA SOLUTIONS, INC. IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY CAMBRIA SOLUTIONS, INC. TRANSPORTATION COMMISSION By: __________________________ By: ____________________________ Marion Ashley Signature Chair ___________________________ Name ____________________________ Title Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP General Counsel Its: Secretary 21 EXHIBIT "A" SCOPE OF SERVICES [Attached behind this page] 22 Cambria Solutions, Inc. for Toll Organization Planning Support Services 4. PROJECT APPROACH AND UNDERSTANDING RCTC has a need for a broad range of technical and operational support services in order to successfully implement an organization that can oversee and manage the development and operation of the SR-91 and I- 15 toll facilities. The Cambria team has provided all of the services requested for other clients, including RCTC, incorporating: > Approach and Work Plan-The Request for Proposals (RFP) asks proposers to describe the approach and work plan for completing the tasks specified in the Scope of Services. We have prepared the following description of our understanding and approach to the Scope of Services for this engagement. The proposed scope is based on our understanding of RCTC's needs and our background in "standing up" tolling and program management organizations. We will work with RCTC on each task to customize the methodology based on the relevant stakeholders, the context of the situation, and RCTC's specific needs, as well as to establish project schedule. > Quality Control -The RFP requests proposers to identify methods that will be used to ensure quality control as well as budget and schedule control for the Project. Cambria assigns a Quality Assurance Manager for every project undertaken. Diana Lee, Cambria's Southern California Managing Director, will serve as Cambria's Quality Assurance Manager for this engagement. Her role will to be to ensure quality project delivery -on time and on budget. Diana will meet weekly with Cambria's Project Manager to monitor progress, review projects risks, if any, and develop recovery plans, if needed. The RCTC Project Manager will have direct access to Diana and she will routinely communicate with RCTC's Project Manager to build that relationship and monitor client satisfaction. RCTC's Project Manager will receive regular, written status reports, which will address the status of deliverables, project budget, and other information. > Project Challenges and Mitigation -Successfully completing this engagement for RCTC will require a team with specific expertise in planning, starting-up, and operating toll facilities-a team that understands the challenges and opportunities from an owner's perspective. The Cambria team understands the rigors and uncertainties that come along with a start-up organization. Because we have walked in RCTC's shoes, we can provide insight and advice to help RCTC accelerate progress and avoid pitfalls. This project will also require a team that is used to working with public agencies and their stakeholders; managing requests for information and their time with busy schedules and competing priorities. As a public-sector focused firm, Cambria is used to working under these challenging circumstances. We understand and are skilled at gaining cooperation from agency staff and stakeholders to get the job done. > Response to RCfC Technical Requests -The RFP specifically requests proposers to address how the firm intends to respond intends to respond to the Commission's technical requests, identifying proposed response times, and how the firm proposes to communicate issues and resolutions of those issues to RCTC. Although not requested as part of the RFP, we have provided a Project Management section (Task o) below that describes our approach to working with RCTC's Project Manager to identify expectations and resolve any issues that may arise. Communications timeframes will be established as part of Task 0.1 below. The following information describes Cambria's approach to providing the requested services. The proposed approach is based on our current understanding of RCTC's needs. Before undertaking each task, we will confer with RCTC's Project Manager to confirm and/further refine the scope as required to best meet RCTC's needs. TASK 0-PROJECT MANAGEMENT Cambria will begin this engagement by agreeing with RCTC on, and putting in place, a robust and accountable project management process. Specifically, we propose to begin this engagement by confirming the project's management processes, holding a project kick-off, and establishing reporting processes and schedules. 23 Cambria Solutions, Inc. Proposal for Toll Organization Planning Support Services TASK 0.1 -CONFIRM PROJECT MANAGEMENT PROCESSES At the beginning of the project, we will meet with RCTC to confirm the key project management processes (e.g., risk management, issue resolution, Communications Structure and Timeframes and decision-making authority) that will be used to conduct the project. Cambria's Project Manager will meet with the RCTC Project Manager (PM) to discuss how they will mutually manage the project scope, timeline, risks, communications, and issues. It will be particularly important to define how decisions will be made on the project, and who will make key decisions. For example, we will request the RCTC PM to advise us regarding who will approve deliverables, or who needs to be involved in discussing key risks or issues. Cambria and RCTC will also need to define other items such as status reporting timelines, communication guidelines, etc. Defining these items up front in the project will allow a smoother execution of project tasks. The following are the deliverables associated with this task: > Project plan, including project scope, schedule, communications expectations, risk/issue management, communications timeframes and deliverable quality and approval processes TASK 0.2-CONDUCT PROJECT KICK-OFF Following the initial meeting, we will work with RCTC's PM to prepare for and conduct a kick-off meeting with key internal program stakeholders. This may include consultants as well as RCTC staff. The purpose of the kick-off is to introduce the consulting team to the appropriate internal stakeholders, and to share the project's purpose and scope with the internal stakeholders. In our experience, we have found this step to be important in establishing the relationships between the team, and in building trust. Furthermore, we want to inform the stakeholders of key activities that will occur during the project, and engage them in their role in those activities. Cambria will work with RCTC's PM to determine the appropriate attendees, purpose, agenda, time, and location for the kick-off. The following are the deliverables associated with this task: > Kick-off meeting with RCTC PM and key program stakeholders > Kick-off meeting materials, including agenda, presentation materials, and meeting minutes TASK 0.3-COMMUNICATIONS STRUCTURE On a monthly basis (or other timeframe requested by RCTC, Cambria will submit progress reports via email to RCTC's PM. These progress reports will provide the following, at a minimum: > Milestones and tasks accomplished since previous status report > Milestones and tasks to be met during next reporting period > Status of existing issues and risks > Strategies and recommendations to mitigate issues and risks The following are the deliverables associated with this task: > Monthly (or agreed-to timeframe) progress reports identifying the status of project activities TASK 1 -HUMAN RESOURCES TASK 1.1 MATRIX ORGANIZATION -GAP ANALYSIS RCTC leadership has opted to implement a type of a matrix organization for its Toll Program, wherein some functions are performed within the Toll Program organization and other functions are performed by RCTC departments who specialize in that area of work. These matrix functions serve a supporting role to toll operations. These functions include: Board of Commissioners, Legal Counsel, Executive Director, Finance, Human Resources, Procurement, Government Relations, Community Relations, and Programming and Planning. There will be some dedicated Toll Program staff, but many necessary functions and activities will either be assumed by existing RCTC staff, or become the responsibility of new RCTC staff, or private sector contractors. Cambria is well positioned for this task, based on the work previously completed for RCTC. For Project Approach and Understanding 16 Riverside County Transportation Commission ©Copyright 2014, Cambria Solutions, Inc. All rights reserved. RFP No. 14-31-155-00 July 3, 2014 24 Cambria Solutions, Inc. Proposal for Toll Organization Planning Support Services this task, Cambria will leverage the analysis and recommendations delivered to RCfC as part of our previous work. We will begin by meeting with RCfC's PM, and other key staff (e.g. Human Resources) and contractors (e.g. RCfC's Organization Development Consultant) as approved by the Project Manager, to reconfirm the status of thought regarding future positions to support the Toll Program. To the extent Cambria or the RCTC PM feels it would be helpful, additional research of best practices and/or peer interviews will be conducted. Based on reconfirming the recommendations from or modifications to our previous work, Cambria will prepare a gap analysis to identify necessary organizational changes to departments that will support the Toll Program department. This will include identifying those departments and functions impacted by toll operations and the magnitude of impact, the existence of any gaps between existing and desired capabilities, and determining whether any additional positions (staff or contract) are needed in those departments. Cambria will also revisit and confirm or modify the previously provided hiring schedule to implement the needed organizational changes for all new positions. The following are the deliverables associated with this task: > Cambria will prepare a draft and final Matrix Organization Gap Analysis report, including a high- level action plan and timeline for change management, hiring, contracting and other implementation activities TASK 1.2 NEW :JOB DESCRIPTIONS, MODIFY EXISTING :JOB DESCRIPTIONS Cambria's previous work for RCTC contained a detailed list of new Toll Program activities and positions, additional activities that will likely be assigned to existing RCfC positions and potential opportunities to combine positions to achieve efficiencies and/ or economies of scale. Based on that previous work, in consultation with the RCfC PM and Human Resources Manager, Cambria will research, develop, and recommend new job descriptions for new positions identified both within the Toll Program organization and within other departments. The draft job descriptions will conform to RCTC' s job description format and will include title, general job description, specific duties, reporting relationships, and other pertinent information. Similarly and as necessary, Cambria will also recommend modifications of job descriptions of existing RCfC positions that will perform services within the Toll Program organization. Job descriptions will be based upon the Toll Program Implementation Roadmap developed by Cambria in our previous work for RCTC, job descriptions of similar positions at other tolling agencies, and input from RCTC staff. As our human resources subject matter expert, Cambria team member Naomi Whitacre will participate significantly in this task. The following are the deliverables associated with this task: > Cambria will prepare draft and final new and modified job descriptions, in RCTC format TASK 1.3 COMPENSATION RECOMMENDATIONS AND RECRUITMENT STRATEGY Working with RCfC's PM and Human Resources Manager, Cambria will develop compensation recommendations for both new, and to the extent warranted, existing positions that take on expanded roles and responsibilities. Cambria will gather information using regional labor market and toll-industry compensation data. The compensation recommendations will be based on external market conditions (both toll industry and non-toll positions with comparable requirements and responsibilities), as well as RCfC's internal compensation structure. Cambria anticipates preparing a compensation matrix/schedule, showing current RCTC positions and new or updated RCTC positions, along with associated base salary and other compensation data. For this task, Cambria will also develop and recommend a recruitment strategy for new positions. This may include outside recruiting or the potential for developing talent from within RCTC's current employee base. As our human resources SME, Cambria team member Naomi Whitacre will participate significantly in this task. The following are the deliverables associated with this task: > Cambria will prepare a draft and final compensation recommendations and recruitment strategy report for new and as appropriate, existing positions associated with the Toll Program RFP No. 14-31-155-00 July 3, 2014 17 Project Approach and Understanding Riverside County Transportation Commission ©Copyright 2014, Cambria Solutions, Inc. All rights reserved. 25 TASK 1.4 TOLL TEAM DEVELOPMENT Cambria Solutions, Inc. Proposal for Toll Organization Planning Support Services The Cambria team has extensive experience as toll facility owners. Accordingly, we understand how to develop performance-based, customer-driven teams. Referencing industry best practices and our experience, we will work with RCTC's PM, Human Resources Manager, and other key personnel and consultants (e.g. RCTC's Organization Development Consultant) to develop and recommend a Toll Program employee- retention strategy, and develop and recommend a professional development strategy for new and existing RCTC positions that will perform Toll Program services. As part of our in-house interviews for our previous work for RCTC, several RCTC staff indicated an interest in taking on new or expanded roles relative to the Toll Program. A good way to retain and develop these staff might be to offer them an opportunity to learn about the toll industry through self-study, establishing mentoring opportunities with counterparts at OCTA or other toll operators or using "lunch and learn" sessions to prepare them for new roles. In our previous discussions, RCTC has indicated that it desires to play a leadership role in regional tolling and within the tolling industry. Cambria will work with the RCTC PM to identify opportunities for key RCTC Toll Program representatives to participate in regional and industry activities and forums. One opportunity might be for RCTC's Toll Program leadership to participate in the International Bridge, Tunnel and Turnpike Association (IBTTA) Leadership Academy. The following are the deliverables associated with this task: > Cambria will prepare a draft and final employee-retention and professional development strategy report TASK 2 -INFORMATION TECHNOLOGY PLAN TASK 2.1 EXPRESS LANES INFORMATION TECHNOLOGY PLAN The Cambria team will provide RCTC with an experienced and analytical team that has a proven record of assisting their clients with developing and operating toll systems that best meet their needs and are recognized as innovative amongst the industry. Their experience will result in an Information Technology Strategy Plan (IT Plan) that allows RCTC to help successfully launch and operate the 91 Express Lanes extension and implement the I-15 Express Lanes, including integration of data with RCTC enterprise systems. The Cambria team will assist RCTC in the development of an IT Plan for toll and related administrative systems, which will guide RCTC in procuring, designing, implementing, and maintaining future toll systems in an efficient and effective manner. The IT Plan will address the financial, administrative, and technical functions necessary for operating the express lanes, as well as potential integration with the existing RCTC IT system. RCTC's approach and role in administering the tolling system will largely be determined by the services included for provision by the toll vendor. The IT Plan will identify options with a recommended option for the prescribed level of ownership and/ or administrative involvement by RCTC and various staffing options (in-house, contract). Regarding the tolling and support systems, we will work with RCTC to establish RCTC's preference regarding equipment and software license ownership, server location, and on-going maintenance oflane system and back office IT equipment and data. The IT Plan will establish a schedule and a working plan for the development of the toll system specifications. The IT Plan will outline a successful system procurement process and design, development, testing and implementation plan. Within the IT Plan, several external interfaces required for the operation of the tolling system will be identified and a process for entering into the required agreements and establishing interface documents will be identified. In addition, the plan will address internal interfaces between the tolling system and RCTC, Caltrans, or county existing systems to ensure RCTC receives timely financial, operational, and performance data. In order for the Toll Program data to integrate into the rest of the RCTC's systems, there should be an assessment of the financial, administrative, and technical functions required for the Toll Program and how they align with the rest of RCTC. This may lead to implementation of enterprise-wide systems and tools which may benefit the entire organization. The IT Plan will address the relationship between the express lane Project Approach and Understanding 18 Riverside County Transportation Commission ©Copyright 2014, Cambria Solutions, Inc. All rights reserved. RFP No. 14-31-155-00 July 3, 2014 26 Cambria Solutions, Inc. Proposal for Toll Organization Planning Support Services Cambria. Solutions ~;, IT system/data and RCfC's existing general IT system/data, with a focus on the options, advantages and limitations (if any) of merging and/ or leveraging existing technology and systems express lane IT functions and system administration duties into RCfC's existing general IT system and support processes, versus creating stand alone express lane IT functions and system administration. Relative to the issue of integration with the existing RCfC IT systems, the plan will include a review of current enterprise systems and planned tolling systems, and identification and analysis of at least two options relative to integration of data for RCTC's consideration. Based on criteria developed in conjunction with RCTC, we will provide a recommended option and supporting rationale for that option. The potential opportunities and/or constraints provided by the overarching Riverside County IT system, under which RCTC's existing general IT system operates, will also be evaluated as part of this task. The IT Plan will also include a high-level implementation schedule and recommendations for in-house or contract resources to implement and oversee the express lane IT system. The following are the deliverables associated with this task: > Cambria will prepare a draft and final Express Lanes IT Plan, as described above TASK 3-TOLL PROGRAM MANAGEMENT, COMMUNICATIONS, AND MARKETING TASK 3.1 MATRIX FUNCTION PLAN RCfC leadership has opted to implement a type of a matrix organization for its Toll Program, wherein some functions are performed within the Toll Program organization and other functions are performed by RCTC departments who specialize in that area of work. These matrix functions serve a supporting role to toll operations. These functions include: Board of Commissioners, Legal Counsel, Executive Director, Finance, Human Resources, Procurement, Government Relations, Community Relations, and Programming and Planning. For this task, Cambria will use the results of the Matrix Organization Gap Analysis (Task 1.1) to evaluate current conditions (existing processes, communication, reporting responsibilities, and employee function responsibilities), and potential opportunities and barriers to implementing a matrix approach for the Toll Program, which will feed into an action plan to maximize Toll Program performance. Cambria will develop the plan to consider existing processes and responsibilities, and expanded functions to cover needed Toll Program functions, and seek economies of scale where possible. Cambria will identify relevant processes and documentation in the plan for updating necessary communication with departments about upcoming changes to their workload and functions, recommended training, and propose peer-to-peer contacts and site visits with other toll agencies as applicable. The following are the deliverables associated with this task: > Cambria will prepare a draft and final Matrix Function Plan, including a Change Matrix, showing As- Is existing conditions, reporting relationships, responsibilities, desired, or To-Be conditions and responsibilities for functional areas and positions, identification of needed changes, and a recommended process, resource needs, timeline, and responsibility for implementing change, including a comprehensive Change Management/Organization Readiness plan. TASK 3.2 PERFORMANCE METRICS STRATEGY Cambria will work with RCfC's PM and other key staff to identify, develop, and recommend overall Toll Program key performance metrics for all relevant areas of operations. Based on our previous work for RCTC and our previous roles as toll facility owner I operators, we have a good understanding of RCTC' s Guiding Principles and desired service level outcomes for the Toll Program. We also understand what the Transportation Infrastructure Finance and Innovation Act (TIFIA) and other oversight agencies might expect in the way of performance data monitoring and reports. Based on those Guiding Principles, industry best practices, and RCTC' s specific objectives, we will prepare a report, including a matrix of potential performance monitoring areas/Key Performance Indicators (KPis), suggested monitoring methodologies, and if there is sufficient data, target performance metrics for RCTC's consideration. The report and matrix will include items such as incorporate express lane performance (e.g. lane availability, incident occurrence and response times, average traffic, and speeds), administrative/service operations (e.g. timeliness of reports, cash flow), roadside operations/ customer assistance (e.g. FSP response, number of incidents, timeframe, and customer satisfaction), toll revenue, violations and collections (e.g. gross versus net revenues, violation rate), RFP No. 14-31-155-00 July 3, 2014 19 Project Approach and Understanding Riverside County Transportation Commission ©Copyright 2014, Cambria Solutions, Inc. All rights reserved. 27 Cambria Solutions, Inc. Proposal for Toll Organization Planning Support Services operation costs (e.g. graffiti removal, litter control), customer service center operations (e.g. average wait time, average call time, customer satisfaction), web site/social media (site visits, average visit time, social media response, complaints), and investors. Cambria will develop a high-level reporting strategy including a list of proposed reports, formats, and frequency. We anticipate recommending an executive dashboard-based reporting format, supported by detailed performance data that feeds the dashboard(s). The following are the deliverables associated with this task: > Cambria will prepare a draft and final Performance Metrics and Reporting Strategy report, including a matrix of potential performance monitoring areas/Key Performance Indicators (KPis), suggested monitoring methodologies, and if there is sufficient data, target performance metrics TASK 3.3 OPERATIONS RISK MANAGEMENT STRATEGY Cambria will develop a high-level operations risk management strategy and program to help RCTC identify and address the major risks to RCTC in the operations phase ofboth the I-15 and SR-91 Express Lanes. Working with the RCTC PM and other key staff and stakeholders, Cambria will develop a draft Risk Register for RCTC consideration. The Risk Register will identify categories and specific risks that if they occur, could negatively impact express lanes operational and financial performance. The Risk Register will describe the potential risk, the severity of the potential negative impacts associated with that risk, the probability of the risk occurring, early warning signs that may indicate the risk is imminent, measures to be taken to mitigate the risk, the "owner" assigned to monitor and undertake mitigation measures as appropriate, resources needed to mitigate the risk, and the timeframe for taking mitigation measures. Cambria proposes to conduct peer toll facility best practices research, interviews, and one or more Risk Management Workshops with RCTC and stakeholder representatives to brainstorm and develop the Risk Register and support implementation program and materials. As a component of the Risk Management Strategy, Cambria will recommend regular review and updates by RCTC contractors (toll system, maintenance, IT systems) of their respective risk management programs. The following are the deliverables associated with this task: > Cambria will conduct toll facility best practices research and interviews and one or more Risk Management workshops and will prepare draft and final Operations Risk Management Plan, including a recommended form of Risk Register /Risk Management Spreadsheet or Database TASK 3.4 ASSET MANAGEMENT STRATEGY Cambria has significant experience developing and implementing asset management strategies for highways and toll facilities, including inventorying, identifying, and prioritizing maintenance, repair, and replacement of roadways, bridges, signage, fleet/rolling stock, IT and tolling systems and equipment and other assets. An effective asset management strategy will prioritize the minor maintenance, major rehabilitation, and eventual replacement activities for the various asset classes and their associated life cycles. The initial activity will be to gather an inventory of the classes or categories of Express Lanes-related assets that RCTC owns and maintains (or will own and maintain in the future). Cambria will also work with RCTC to understand the current age and condition of each asset as well as the desired level of service. To the extent RCTC does not yet have ownership of assets; Cambria will work with RCTC to identify various classes of assets that RCTC is likely to own as part of the SR-91 and/or I-15 projects. For this task, RCTC should be able to leverage Asset Management documentation and schedules prepared by Caltrans and other equipment providers. Using information gathered from internal RCTC and external best practices research and interviews, as well as expertise gathered from other client projects, Cambria will develop and recommend a high-level asset management strategy which will include asset tracking, replacement schedules, identifying maintenance responsibilities, resources needed, timing to commence asset management activities, and leveraging economies of scale for maintenance between the two facilities. Cambria will also provide a high-level analysis of the available asset management software solutions that are currently in the market that will help RCTC manage its assets and achieve its asset management strategies. The following are the deliverables associated with this task: Project Approach and Understanding 20 Riverside County Transportation Commission ©Copyright 2014, Cambria Solutions, Inc. All rights reserved. RFP No. 14-31-155-00 July 3, 2014 28 Cambria Solutions, Inc. Proposal for Toll Organization Planning Support Services Cambria ·~ Solutions r((@JJJ > Cambria will prepare a draft and final Asset Management Strategy report that includes asset tracking, replacement schedules, identifying maintenance responsibilities, resources needed, and high-level timing to commence asset management activities > Cambria will also prepare a high-level analysis of Commercial Off The Shelf (COTS) asset management solutions that are in the market including a comparison of functionality, ability to meet RCTC needs, and costs TASK 3.5 EXPRESS LANES CUSTOMER SERVICE STRATEGY Cambria team members have developed and managed both in-house and contract customer service functions for express lanes facilities. This experience will be used to help RCTC analyze and select the optimal approach for the 91 Express Lanes extension and the I-15 Express Lanes facilities. Cambria will work with the RCTC PM and other key staff to develop objective criteria that will be used to analyze and compare options for providing customer services for the two RCTC express lanes facilities. Cambria will conduct interviews and provide case histories from other start-up toll facilities to provide RCTC with the benefit oflessons learned from others. If RCTC is interested, Cambria will arrange for site visits and/ or contract service provider presentations to gain first-hand insight from peers regarding the merits and potential pitfalls of various approaches. Based on the information gathered, Cambria will develop and recommend a high-level express lane customer service options matrix/ discussion document. Cambria will meet with RCTC to review and receive feedback on the options presented in the document. RCTC's feedback will then be incorporated into a strategy document that defines a customer service program including goals and objectives, customer services offered, and performance metrics to achieve high quality customer service. The following are the deliverables associated with this task: > Cambria will prepare a draft and final Express Lanes Customer Service Strategy. The strategy will consider both express lane facilities, the existing customer service approach taken on the 91 Express Lanes, leverage economies of scale, consider different customer service staffing resource options available, appropriate timing to commence customer service activities for each facility, and identify and propose new customer programs and services applicable to either express lane facility. TASK 3.6 EXPRESS LANES COMMUNICATION AND MARKETING STRATEGY Cambria team members have directed and/ or worked with some of the leading toll facility branding, marketing and communications firms to launch the Orange County Toll roads, the 91 Express Lanes, SR-125 South Bay Expressway, LA Metro Express Lanes and other toll facilities. Based on that experience, Cambria will work with RCTC to design a process that will lead to an effective retail marketing and communications program, within the ultimate goal of maximizing interest in the Express Lanes and eventual customer usage and revenue generation that meets target levels. Cambria will begin by holding a half-day work session with RCTC to understand its vision and goals for its marketing and communications program, as well as current and projected internal and external resources and RCTC's ideas. The work session will also include case histories of other toll facility marketing and communications facility launch programs. Cambria will arrange for conference calls and/ or meetings with peer toll facilities and/ or industry-leading marketing and communications firms, to hear lessons learned and generate ideas for their program. Cambria will consolidate the information from the work session and interviews and combine it with Cambria's experience to produce a draft marketing and communications strategy document for RCTC review. The communication and marketing strategy prepared by Cambria will take into account both express lane facilities, legacy 91 Express Lanes marketing strategies, regional integration with other express lane and toll road facilities, possible economies of scale between RCTC express lane facilities, and integrating with other RCTC programs (e.g. IE 511, carpooling, commuter rail). The communication and marketing strategy prepared by Cambria will also include market research, identifying target audiences, proposing a marketing philosophy and branding approach consistent with RCTC's Toll Program goals and objectives, marketing budget, return on investment strategy, rollout schedule consistent with RCTC's planned toll facility openings, and scope of work recommendations to contract out for future marketing resources. The following are the deliverables associated with this task: > Cambria will prepare a high-level draft and final Express Lanes Marketing and Communications Strategy RFP No. 14-31-155-00 July 3, 2014 21 Project Approach and Understanding Riverside County Transportation Commission ©Copyright 2014, Cambria Solutions, Inc. All rights reserved. 29 17336.00000\8752982.1 B-1 EXHIBIT "B" SCHEDULE OF SERVICES Consultant and Commission will agree on a submittal schedule for the individual deliverables as specified in Exhibit “A”, Scope of Services. All deliverables as specified in Exhibit “A”, Scope of Services, shall be completed by Consultant and accepted by the Commission not later than 18 months after issuance of a Notice to Proceed for this Agreement. 30 EXHIBIT "C" COMPENSATION [Attached behind this page] 31 32 Consultant shall receive compensation for all services rendered under the agreement at the proposed rates set forth above. Consultant shall not invoice for Other Direct Costs (ODC), and Commission shall not be required to pay ODCs under this agreement. Consultants' proposed labor rates shall remain fixed for the term of the agreement. Proposed fully burdened labor rates shall include all relevant expenses, taxes, insurance, and fringe benefits, as well as indirect costs, overhead and profit allowance. Consultant acknowledges that the total cost proposal for Tasks I, II, Ill is $218,840. 33 AGENDA ITEM 8 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 25, 2014 TO: Western Riverside County Programs and Projects Committee FROM: Alex Menor, Capital Projects Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Agreement with SC Engineering for the Preparation of Consent to Common Use Agreements, Legal Descriptions, and Plats to Reestablish Utility Companies’ Prior Rights Relocated by the State Route 74 Widening Project Between Dexter Avenue in the City of Lake Elsinore and 7th Street in the City of Perris and Donation Agreement to Transfer Mitigation Property to the Western Riverside County Regional Conservation Authority STAFF RECOMMENDATION: This item is for the Commission to: 1) Award Agreement No. 14-31-163-00 to SC Engineering for engineering services for the preparation of consent to common use agreements (CCUAs), legal descriptions, and plat maps to establish utility easements for utilities with prior rights relocated by the State Route 74 widening project between Dexter Avenue in the city of Lake Elsinore and 7th Street in the city of Perris, for an amount of $134,358, plus a contingency amount of $13,450, for a total amount not to exceed $147,808; 2) Approve the Donation Agreement No. 15-31-018-00 between the Commission and the Western Riverside County Regional Conservation Authority (RCA) granting land acquired for mitigation purposes on the SR-74 widening project; 3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, on behalf of the Commission; 4) Authorize the Executive Director to approve release of contingency work up to the total authorized amount as may be required for the project; 5) Authorize the Executive Director, pursuant to legal counsel review, to execute agreements with Caltrans to reflect non-funding changes related to the project on behalf of the Commission; and 6) Forward to the Commission for final action. BACKGROUND INFORMATION: The SR-74 widening project, between Dexter Avenue in the city of Lake Elsinore and 7th Street in the city of Perris, was completed and accepted by Caltrans in 2006. The improvements included acquisition of right of way, realignment of curves, and highway widening from two lanes to four lanes plus eight-foot shoulders and a continuous 14-foot paved median. The Agenda Item 8 34 highway widening required the relocation of existing utilities with prior rights to new locations inside the State right of way. The utilities affected are Southern California Edison (SCE), The Gas Company, and Elsinore Valley Municipal Water District (EVMWD). SC Engineering provided final design services, surveying, and construction support services on the SR-74 widening project. CCUAs will reestablish the three utility companies’ prior rights in the State right of way. The project’s environmental reevaluation, completed in 2000, required the Commission to acquire in fee 22 acres of Riversidean Sage Scrub habitat for wildlife habitat mitigation for the California Gnatcatcher. The property was to be transferred to the RCA for conservation maintenance upon the completion of the project. DISCUSSION: Because SC Engineering provided design, surveying, and construction support services on the SR-74 widening project, this firm has critical project knowledge and documentation related to the utility relocations which would not otherwise be available to a new consultant. Accordingly, staff requested a sole source proposal from SC Engineering to prepare CCUAs, legal descriptions, and plat maps. Staff reviewed SC Engineering’s proposal and has found it to be fair and reasonable, and recommends award of Agreement No. 14-31-163-00 to SC Engineering for design services to prepare the CCUAs and necessary exhibits (legal descriptions and plat maps) and to secure Caltrans review and approval to reestablish SCE, EVMWD, and The Gas Company prior rights in the state right of way. CCUAs and exhibits will be prepared for the respective utility company at the following locations: Utility Company Estimated Number of Exhibits (Legal Descriptions and Plat Maps) per CCUA Dexter Avenue to Wasson Creek 1. SCE 24 2. EVMWD 28 Wasson Creek to 7th Street 3. EVMWD 14 4. SCE 62 5. The Gas Company 4 SC Engineering’s proposal to complete this work is $134,358. Staff recommends the Executive Director be authorized to approve release of contingency work up to the total authorized amount of $147,808 as may be required for the project. As part of the environmental reevaluation completed in October 2000, the biological opinion of the U.S. Fish and Wildlife Service included an off-site requirement for the Commission to acquire “no less than 22 acres of Riversidean Sage Scrub and transfer to a conservation agency in fee” to manage as critical habitat for the California Gnatcatcher. In addition, the mitigation parcels were required to be contiguous to each other. The Commission completed acquisition Agenda Item 8 35 of the mitigation parcels totaling 52.17 acres, which have 23.1 acres of Riversidean Sage Scrub habitat and is ready to transfer the properties to RCA for continued conservation management in perpetuity under Donation Agreement No. 15-31-018-00. Commission staff also determined it is not feasible to split and combine portions of the parcels containing critical habitat to reduce the acreage donation closer to the 22 acre minimum. Staff recommends the Executive Director be authorized to execute the agreements with SC Engineering and RCA. Additionally, in connection with the close-out of the SR-74 widening project, agreements with Caltrans for non-funding changes related to the project may be necessary. Staff recommends authority for the Executive Director to execute such agreements with Caltrans. Financial Information In Fiscal Year Budget: Yes Year: FY 2014/15 Amount: $ 175,000 Source of Funds: 1989 Measure A Western County Highway Budget Adjustment: No GL/Project Accounting No.: 003001 81403 222-31-81403 $147,808 003001 61XXX 222-31-61XXX $ 27,192 Fiscal Procedures Approved: Date: 08/14/2014 Attachments: 1) Scope of Work and Fee Proposal 2) Project Schedule 3) SC Engineering Agreement No. 14-31-163-00 4) Donation Agreement No. 15-31-018-00 Agenda Item 8 36 TRANSPORTATION TRAFFIC CIVIL ENGINEERING PROJECT/CONSTRUCTION MANAGEMENT SERVING THE TRANSPORTATION NEEDS OF THE INLAND EMPIRE AND HIGH DESERT HEADQUARTERS 16096 CHIWI ROAD APPLE VALLEY, CA 92307 760.242.2081  951-204-8073 June 27, 2014 Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92502-2208 Attention: Mr. Alex Menor, PE Capital Project Manager Subject: Consent to Common Use Agreements (CCUAs) and Exhibits (Legal and Plats) for Utility Companies State Route 74 (SR-74), Segment 1 and 2 Dear Mr. Menor: Per our telephone conversation and subsequent meeting, included is a Scope of Work and Fee Proposal to complete/prepare the Consent to Use Agreement (CCUAs) for the following utility companies: 1.Southern California Edison (SCE) 2.Elsinore Valley Municipal Water District (EVMWD) 3.The Gas Company The above utility companies were affected by the realignment and widening of State Route 74, from Dexter Avenue to 7th Street. These utilities were located within the existing utility easements prior to the realignment and widening project and were relocated, within State Right of Way, to not be in conflict with the realignment and widening project. The utility companies have requested that their utility easement rights be re-established. Scope of Services will include: A. CCUAs – Prepare CCUAs and necessary exhibit documents (legal and plat) conforming to the most current Caltrans and respective utility company standards. CCUAs and exhibits will be prepared for the following: Utility Company Estimated Number of Exhibits (Legal and Plat) per CCUA SR74, Segment 1, Dexter Avenue to Wasson Creek 1.Southern California Edison 24 2.Elsinore Valley Municipal Water District 28 SR74, Segment 2, Wasson Creek to 7th Street 3.Elsinore Valley Municipal Water District 14 4.Southern California Edison 62 5.The Gas Company 4 B. Project meeting and necessary record search: ATTACHMENT 1 37 Mr. Alex Menor Capitals Project Manager RCTC CCUAs Legal's and Exhibits June 27, 2014 Page 2 of 2 Once again, I appreciate the opportunity to serve RCTC and assist in the processing of the approval of the necessary documents for the project. Should you have any question, do not hesitate to call me at 951-204-8073. Very Truly Yours, SC Engineering Sal Chavez, PE Project Manager cc: Project File-55 Attachments Fee Proposal Project Schedule 38 State Route 74, Segment 1 and 2 CCUAs and Exhibits for Utility Companies TASK Estimated Estimated Estimated Cost No. of Legal-Plats Hours/Legal-Plat Hours Consent to Common Use Agreements (CCUAs) Segment 1, Dexter Ave to Wasson Creek 1. Southern California Edison (24 Power poles)24 8 192 $21,076 2. Elsinore Valley Water District (+/-3-Miles)28 12 336 $36,883 Segment 2, Wasson Creek to 7th Street 3. Elsinore Valley Water District (+/-1.8-Miles)14 12 168 $18,441 4. Southern California Edison (62 Power poles)62 8 496 $54,446 5. The Gas Company (4 Locations)4 8 32 $3,513 1,224 $134,358TOTAL 39 State Route 74, Segment 1 and 2 CCUAs and Exhibits for Utility Companies COST PROPOSAL WORKSHEET COMPANY:SCOPE OF WORK DATE REVISION SC ENGINEERING CCUAs June 27, 2014 - PROJECT: MILESTONE/PHASE/PROJECT SUMMARY: State Route 74, Segment 1 and 2 DIRECT LABOR PERSONNEL FUNCTION HOURS RATE AMOUNT Sal Chavez Project Manager 122.0 63.00$ $7,686 Darrin Ginn/Staff Sr Engineer/Land Surveyor 367.0 50.50$ $18,534 John Davis/Staff Civil Engineer 0.0 47.50$ $0 Staff Civil Engineer 122.0 42.00$ $5,124 Staff Bridge Engineer 0.0 -$ $0 Staff CADD Operator/Technician 490.0 31.00$ $15,190 Staff Landscape Architect 0.0 -$ $0 Staff Administrations/Project Controls 123.0 27.00$ $3,321 TOTAL HOURS 1224.0 $49,855 1224.0 OVERHEAD RATE TOTAL OVERHEAD $72,289 OTHER DIRECT COST ITEM QUANTITY UNIT UNIT COST AMOUNT Reproduction LS -$ $0 TOTAL OTHER DIRECT EXPENSES SUBCONSULTANT'S COST COMPANY AMOUNT TOTAL SUBCONSULTANT'S COST $0 FEES FIXED FEE 10%12,214.35$ TOTAL FEE $12,214 TOTAL COST $134,358 $0 OVERHEAD (1.45) 1 40 IDTask NameDurationStartFinish1Project Management/Meeting/Coordination153 daysMon 10/6/14Wed 5/6/152 Kick-Off Meeting5 daysMon 10/6/14Fri 10/10/143 Monthly Meetings148 daysMon 10/13/14Wed 5/6/1541. CCUA for Southern California Edison (Segment 1)210 daysMon 10/13/14Fri 7/31/155Prepare Draft CCUA for Southern California Edison (Segment 1)60 daysMon 10/13/14Fri 1/2/1561st Utility Company/Caltrans Review45 daysMon 1/5/15Fri 3/6/157Update CCUA for Southern California Edison (Segment 1)20 daysMon 3/9/15Fri 4/3/1582nd/Final Review Utility Company/Caltrans Review45 daysMon 4/6/15Fri 6/5/159Finalize CCUA10 daysMon 6/8/15Fri 6/19/1510Record CCUA for Southern California Edison (Segment 1) (RCTC)30 daysMon 6/22/15Fri 7/31/15112. CCUA for Elsinore Valley Municipal Water District (EVMWD) (Segment 1)190 daysMon 10/13/14Fri 7/3/1512Prepare Draft CCUA for EVMWD (Segment 1)40 daysMon 10/13/14Fri 12/5/14131st Utility Company/Caltrans Review45 daysMon 12/8/14Fri 2/6/1514Update CCUA for EVMWD (Segment 1)20 daysMon 2/9/15Fri 3/6/15152nd/Final Review Utility Company/Caltrans Review45 daysMon 3/9/15Fri 5/8/1516Finalize CCUA10 daysMon 5/11/15Fri 5/22/1517Record CCUA for EVMWD (Segment 1) (RCTC)30 daysMon 5/25/15Fri 7/3/15183. CCUA for Southern California Edison (Segment 2)195 daysMon 10/13/14Fri 7/10/1519Prepare Draft CCUA for Southern California Edison (Segment 2)45 daysMon 10/13/14Fri 12/12/14201st Utility Company/Caltrans Review45 daysMon 12/15/14Fri 2/13/1521Update CCUA for Southern California Edison (Segment 2)20 daysMon 2/16/15Fri 3/13/15222nd/Final Review Utility Company/Caltrans Review45 daysMon 3/16/15Fri 5/15/1523Finalize CCUA10 daysMon 5/18/15Fri 5/29/1524Record CCUA for Southern California Edison (Segment 2) (RCTC)30 daysMon 6/1/15Fri 7/10/15254. CCUA for EVMWD (Segment 2)200 daysMon 10/13/14Fri 7/17/1526Prepare Draft CCUA for EVMWD (Segment 2)50 daysMon 10/13/14Fri 12/19/14271st Utility Company/Caltrans Review45 daysMon 12/22/14Fri 2/20/1528Update CCUA for EVMWD (Segment 2)20 daysMon 2/23/15Fri 3/20/15292nd/Final Review Utility Company/Caltrans Review45 daysMon 3/23/15Fri 5/22/1530Finalize CCUA10 daysMon 5/25/15Fri 6/5/1531Record CCUA for EVMWD (Segment 2) (by RCTC)30 daysMon 6/8/15Fri 7/17/15325. CCUA for The Gas Company (Segment 2)180 daysMon 10/13/14Fri 6/19/1533Prepare Draft CCUA for The Gas Company (Segment 2)30 daysMon 10/13/14Fri 11/21/14341st Utility Company/Caltrans Review45 daysMon 11/24/14Fri 1/23/1535Update CCUA for The Gas Company (Segment 2)20 daysMon 1/26/15Fri 2/20/15362nd/Final Review Utility Company/Caltrans Review45 daysMon 2/23/15Fri 4/24/1537Finalize CCUA10 daysMon 4/27/15Fri 5/8/1538Record CCUA for The Gas Company (Segment 2) (by RCTC)30 daysMon 5/11/15Fri 6/19/15ONDJFMAMJ2015TaskSplitProgressMilestoneSummaryProject SummaryExternal TasksExternal MilestoneDeadline74_CCUA_06.27.2014 Route 74, Segment 1 & 2C.C.U.A.s74_CCUA_06.27.2014 Page 1SC EngineeringProject: 74_Seg1_Seg2Date: Fri 6/27/14ATTACHMENT 241 ATTACHMENT 3 Agreement No. 14-31-163-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR ENGINEERING SERVICES WITH SC ENGINEERING 1. PARTIES AND DATE. This Agreement is made and entered into this ____ day of _____________, 2014, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co- mmission") and REYES S. CHAVEZ, a sole proprietorship, d/b/a SC ENGINEERING ("Consultant"). 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 engineering services to public clients, is licensed in the State of California, and is familiar with the plans of Commission. 2.2 Commission desires to engage Consultant to render certain consulting services for the State Route 74 widening project between Dexter Avenue in the city of Lake Elsinore and 7th Street in the city of Perris Project ("Project") as set forth herein. 3. TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide professional consulting services and advice on various issues affecting the decisions of Commission regarding the Project and on other programs and matters affecting Commission, hereinafter referred to as "Services". The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules and regulations. 3.2 Term. The term of this Agreement shall be from the date first specified above to 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. 17336.00000\8752982.1 42 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: Reyes Chavez. 3.7 Commission’s Representative. Commission hereby designates Executive Director, or his or her designee, to act as its representative for the performance of this Agreement ("Commission’s Representative"). Commission's representative shall have the power to act on behalf of Commission for all purposes under this Agreement. Consultant shall not accept direction from any person other than Commission's Representative or his or her designee. 3.8 Consultant’s Representative. Consultant hereby designates Reyes Chavez, or his or her designee, to act as its representative for the performance of this 17336.00000\8752982.1 2 43 Agreement ("Consultant’s Representative"). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.9 Coordination of Services. Consultant agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, consultants and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Consultant shall perform the Services under this Agreement in a skillful and competent manner, consistent with the standard generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from Commission, any Services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant’s errors and omissions. 3.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 17336.00000\8752982.1 3 44 3.12 Insurance. 3.12.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.12.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) if Consultant has an employees, Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 3.12.3 Professional Liability. [Reserved] 3.12.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (A) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) Bodily Injury and Property Damage; (2) Personal Injury/Advertising Injury; (3) Premises/Operations Liability; (4) Products/Completed Operations Liability; (5) 17336.00000\8752982.1 4 45 Aggregate Limits that Apply per Project; (6) Explosion, Collapse and Underground (UCX) exclusion deleted; (7) Contractual Liability with respect to this Agreement; (8) Broad Form Property Damage; and (9) Independent Consultants Coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to the Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (B) Automobile Liability. (i) The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (C) Workers’ Compensation and Employers Liability Coverage. (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. 17336.00000\8752982.1 5 46 (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, its directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any Insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. 17336.00000\8752982.1 6 47 (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. 3.12.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.12.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 3.12.7 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.12.8 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 17336.00000\8752982.1 7 48 3.13 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.14 Fees and Payment. 3.14.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto. The total compensation shall not exceed [___INSERT WRITTEN DOLLAR AMOUNT___] ($[___INSERT NUMERICAL DOLLAR AMOUNT___]) without written approval of Commission's Executive Director (“Total Compensation”). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.14.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Commission. 3.14.4 Extra Work. At any time during the term of this Agreement, Commission may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by Commission to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from Commission's Executive Director. 3.15 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under 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 17336.00000\8752982.1 8 49 transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Upon termination, Consultant shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.16.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Consultant to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.16.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Commission may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.17 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: CONSULTANT: COMMISSION: ______________________ Riverside County ______________________ Transportation Commission ______________________ 4080 Lemon Street, 3rd Floor _____________________ Riverside, CA 92501 Attn: ________________ Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.18 Ownership of Materials/Confidentiality. 17336.00000\8752982.1 9 50 3.18.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 3.18.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. 17336.00000\8752982.1 10 51 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. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission in order to allow the Commission to pursue legal remedies designed to limit any confidential information required to be disclosed or to assure the confidential treatment of the information following disclosure. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.18.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 17336.00000\8752982.1 11 52 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, agents, consultants, employees and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of the Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation, the payment of all consequential damages, attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the Commission, its directors, officials, officers, agents, consultants, employees and volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Commission or its directors, officials, officers, agents, consultants, employees and volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission and its directors, officials, officers, agents, consultants, employees and volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant’s obligation to indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and volunteers. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. This Section 3.21 shall survive any expiration or termination of this Agreement. 3.22 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended, or modified by a writing signed by both parties. 3.23 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 17336.00000\8752982.1 12 53 3.25 Commission's Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with this Project. 3.26 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 3.27 Prohibited Interests and Conflicts. 3.27.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Commission shall have the right to rescind this Agreement without liability. 3.27.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of Commission, during the term of his or her service with Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.27.3 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee’s regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 3.27.4 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 3.28 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 17336.00000\8752982.1 13 54 3.29 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 3.30 Prevailing Wages. By its execution of this Agreement, Consultant certified that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. The Commission shall provide Consultant with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.31 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. 17336.00000\8752982.1 14 55 3.32 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 3.33 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub- consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 3.34 Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.35 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.36 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.37 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.38 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.39 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 17336.00000\8752982.1 15 56 3.40 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.41 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties’ understanding concerning the performance of the Services. 3.42 Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.43 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein, without the prior written consent of the Commission. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.44 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. [SIGNATURES ON FOLLOWING PAGE] 17336.00000\8752982.1 16 57 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR ENGINEERING SERVICES WITH SC ENGINEERING IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY REYES S.CHAVEZ TRANSPORTATION COMMISSION dba SC ENGINEERING By: __________________________ By: ____________________________ Marion Ashley Signature Chair ___________________________ Name ____________________________ Title Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP General Counsel Its: Secretary 17336.00000\8752982.1 17 58 EXHIBIT "A" SCOPE OF SERVICES [___INSERT___] 17336.00000\8752982.1 A-1 59 EXHIBIT "B" SCHEDULE OF SERVICES [___INSERT___] 17336.00000\8752982.1 B-1 60 EXHIBIT "C" COMPENSATION [___INSERT___] 17336.00000\8752982.1 C-1 61 26493.00004\9067395.4 -1- Project: RCTC Donation APN: 347-110-010,-011,-095 DONATION AGREEMENT THIS AGREEMENT (“Agreement”) is made this ___ day of _____, 2014 by and between the WESTERN RIVERSIDE COUNTY REGIONAL CONSERVATION AUTHORITY, a public agency and a joint powers authority, herein called “RCA,” and the RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a public agency of the State of California and a county transportation commission, herein called “Donor.” The RCA and Donor are sometimes individually referred to as “Party” and collectively as “Parties.” WHEREAS, Donor is the owner of certain real property located in Riverside County, and as more particularly described on Exhibit A attached hereto (the “Property”); WHEREAS, RCA desires to acquire the Property for purposes of wildlife and plant life conservation pursuant to the Western Riverside County Multiple Species Habitat Conservation Plan (“MSHCP”); and NOW, THEREFORE, RCA and Donor agree as follows: 1. Dedication of Property. Donor shall offer to dedicate the Property to RCA and RCA shall accept the offer of dedication of the Property, or interest therein, upon the terms and conditions set forth in this Agreement. 2. Obligations of Donor. 2.1 Fee Interest. Upon acceptance by RCA, Donor shall convey, assign and transfer its fee interest in the Property to RCA, free and clear of all liens, encumbrances, easements, leases (recorded or unrecorded), bonds, assessments, and taxes except for (i) liens for non-delinquent property taxes and assessments, and (ii) those liens and encumbrances and easements which, in the sole discretion of RCA, are acceptable pursuant to Section 6. 2.2 Representations and Warranties of Donor. Donor represents and warrants to RCA that as of the date of this Agreement and as of the Close of Escrow: 2.2.1 Hazardous Substances. The Property is: (i) free from Hazardous Substances; (ii) contains no buried or partially buried storage tanks located on the Property; (iii) has not been used for the generation, storage or disposal of any Hazardous Substance and no Hazardous Substance has been spilled, disposed of, or stored on, under, or at the Property; and (iv) has never been used as a dump or landfill; 2.2.2 Compliance with Law. The Property is in material compliance with all applicable Laws and Environmental Laws; ATTACHMENT 4 62 26493.00004\9067395.4 -2- 2.2.3 Leases. No leases, licenses, or other agreements allowing any third party rights to use the Property are or will be in force as of the Closing; 2.2.4 Litigation and Investigations. There is no pending or threatened litigation, administrative proceeding, or other legal or governmental action with respect to the Property, and Donor has received no notice, warning, administrative complaint, judicial complaint, or other formal or informal notice alleging that conditions on the Property are or have been in violation of any Laws or Environmental Laws, or informing Donor that the Property is subject to investigation or inquiry regarding the violation of any Laws or Environmental Laws. 2.2.5 Condition of Property. There are no natural or artificial conditions upon the Property or any part of the Property that could result in a material and adverse change in the condition of the Property; 2.2.6 Access to the Property. There is vehicular access to the Property either directly through a public right of way or through a recorded easement; and 2.2.7 No Insolvency Proceedings. Donor has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by its creditors; (iii) suffered the appointment of a receiver to take possession of all or substantially all of its assets; (iv) suffered the attachment or other judicial seizure of substantially all of its assets; or (v) admitted in writing its inability to pay its debts as they come due. 2.2.8 No Other Agreements, Undertakings or Tenancies. Donor will not enter into any agreements or undertake any new obligations prior to Close of Escrow which will in any way burden, encumber or otherwise affect the Property without the prior written consent of the RCA. 2.2.9 Disclosure. Donor has disclosed to RCA all information, records, and studies in Donor’s possession in connection with the Property, including any rep orts or studies concerning Hazardous Substances. All information that Donor has delivered to RCA, either directly or through Donor’s agents, is accurate and Donor has disclosed all material facts concerning the operation, development, or condition of the Property. Donor shall promptly notify RCA of any facts that would cause any of the representations contained in this Agreement to be untrue as of the Close of Escrow. If RCA reasonably concludes that a fact materially and adversely affects the Property, RCA shall have the option to terminate this Agreement by delivering written notice to Donor and Escrow Agent. If RCA terminates this Agreement pursuant to this Section, Escrow Agent shall cancel the Escrow and Donor shall be responsible for all costs of escrow. 2.3 Indemnity. Donor agrees to indemnify RCA and agrees to defend and hold RCA harmless from all loss, cost, liability, expense, damage, or other injury, including without limitation, attorneys’ fees and expenses, to the fullest extent not prohibited by applicable law, and all other costs and expenses incurred by reason of, or in any manner resulting from (i) the breach of any warranties and representations in Section 2.2, and (ii) all third-party claims for 63 26493.00004\9067395.4 -3- Donor’s intentional acts or willful misconduct related to the Property occurring prior to the Close of Escrow. 2.4 Definitions. 2.4.1 “Environmental Laws” means all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance (as defined subsequently in this Agreement), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Property), occupational or environmental conditions on, under, or about the Property, as now in effect, including without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Superfund Amendments and Reauthorization Act of 1986 (SARA) [42 U.S.C.A. §§ 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (RCRA) and the Solid Waste Disposal Act [42 U.S.C.A. §§ 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA) [33 U.S.C.A. §§ 1251 et seq.]; the Toxic Substances Control Act (TSCA) [15 U.S.C.A. §§ 2601 et seq.]; the Hazardous Materials Transportation Act (HMTA) [49 U.S.C.A. §§ 1801 et seq.]; the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) [7 U.S.C.A. §§ 136 et seq.]; the Clean Air Act (CAA) [42 U.S.C.A. §§ 7401 et seq.]; the Safe Drinking Water Act (SDWA) [42 U.S.C.A. §§ 300f et seq.]; the Surface Mining Control and Reclamation Act of 1977 (SMCRA) [30 U.S.C.A. §§ 1201 et seq.]; the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA or EPCRTKA) [42 U.S.C.A. §§ 11001 et seq.]; the Occupational Safety and Health Act of 1970 (OSHA) [29 U.S.C.A. §§ 655, 657]; the California laws regarding the underground storage of hazardous substances [H & S C §§ 25280 et seq.]; the Hazardous Substance Account Act [H & S C §§ 25300 et seq.]; the California laws regarding hazardous waste control [H & S C §§ 25100 et seq.]; the Safe Drinking Water and Toxic Enforcement Act of 1986 [H & S C §§ 25249.5 et seq.]; the Porter-Cologne Water Quality Control Act [Wat C §§ 13000 et seq.], and any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect that pertains to occupational health or industrial hygiene, and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use. 2.4.2 “Hazardous Substances” includes without limitation: (i) Those substances included within the definitions of “hazardous substance,” “hazardous waste,” “hazardous material,” “toxic substance,” “solid waste,” or “pollutant or contaminant” in CERCLA, RCRA, TSCA, HMTA, or under any other Environmental Law; (ii) Those substances listed in the United States Department of Transportation (DOT) Table [49 CFR 172.101], or by the Environmental Protection Agency (EPA), or any successor agency, as hazardous substances [40 CFR Part 302]; 64 26493.00004\9067395.4 -4- (iii) Other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and (iv) Any material, waste, or substance that is: a petroleum or refined petroleum product, asbestos, polychlorinated biphenyl, designated as a hazardous substance pursuant to 33 U.S.C.A. § 1321 or listed pursuant to 33 U.S.C.A. § 1317, a flammable explosive, or a radioactive material. 3. Escrow. By this Agreement, RCA and Donor establish an escrow (“Escrow”) with a reputable title company chosen by RCA (the “Escrow Agent”), subject to the provisions of the standard conditions for acceptance of escrow and the terms and conditions in this Agreement, with a signed counterpart of this document to be delivered as escrow instructions to Escrow Agent. In the event of any conflict between the terms of this Agreement and the standard conditions for acceptance of escrow, the terms of this Agreement shall control. RCA’s agent for matters related to the Closing of Escrow shall be the Executive Director or his designee. 4. Feasibility Period. 4.1 During the period commencing on the date of this Agreement and terminating on a date which is sixty (60) days from the date of this Agreement (“Feasibility Period”), RCA may undertake at RCA’s expense an inspection of the Property. Said inspection may include: (i) a review of the physical condition of the Property, including but not limited to, inspection and examination of soils, environmental factors, Hazardous Substances, if any, and archeological information relating to the Property; and (ii) a review and investigation of the effect of any zoning, maps, permits, reports, engineering data, regulations, ordinances, and laws affecting the Property. Within ten (10) days following the full execution of this Agreement by both parties, Donor shall deliver to RCA copies of all architectural plans, surveys, specifications, and other documents pertaining to the physical, geological, or environmental condition of the Property that are owned by or in the possession of Donor. 4.2 If RCA’s environmental consultant requires additional time to determine the existence and extent of any Hazardous Substances on the Property, RCA shall have the right, exercisable by delivering written notice to Donor prior to the expiration of the Feasibility Period, to extend the Feasibility Period for up to an additional sixty (60) days to complete the testing. 4.3 If RCA disapproves of the results of the inspection and review or the results of any Phase I Environmental Report, RCA may elect, prior to the last day of the Feasibility Period (or any extension thereof), to terminate this Agreement by giving Donor written notification prior to the last day of the Feasibility Period (or any extension thereof). If RCA fails to properly notify Donor of the intent to terminate this Agreement, RCA shall be deemed to be satisfied with the results of the inspection and shall be deemed to have waived the right to terminate this Agreement pursuant to this provision. 5. Access. 5.1 Access to the Property during the Feasibility Period shall be given to RCA, its agents, employees, or contractors during normal business hours upon at least one (1) 65 26493.00004\9067395.4 -5- business day’s notice to Donor, at their own cost and risk, for any purposes, including, but not limited to, inspecting the Property, taking samples of the soil, and conducting an environmental audit (including an investigation of past and current uses of the Property). RCA shall indemnify and defend Donor against and hold Donor harmless from all losses, costs, damages, liabilities, and expenses, including, without limitation, reasonable attorney fees arising out of RCA’s entry onto the Property or any activity thereon by RCA or its agents, employees, or contractors prior to the Close of Escrow except to the extent any such losses, costs, damages, liabilities, and expenses arise out of the gross negligence or willful acts of Donor. Any entry onto the Property by RCA or its agents, employees, or contractors shall be at reasonable times. The provisions of this Section shall survive the Close of Escrow. Notwithstanding anything herein to the contrary, RCA and Donor agree that RCA shall not incur any liability hereunder merely by the discovery of an “Existing Adverse Condition” (as defined below) regardless of whether such Existing Adverse Condition, once revealed, negatively impacts the value of the Property or otherwise causes Donor to incur liabilities, costs or expenses. The term “Existing Adverse Condition” shall mean an adverse condition existing on or with respect to the Property that is discovered or revealed by RCA in the course of its Property inspection hereunder. 5.2 In addition to the provisions of Section 4.1, RCA and its agents, employees, or contractors shall have the right, from the date of this Agreement until the Closing Date, to contact any federal, state, or local governmental authority or agency to investigate any matters relating to the Property. Donor agrees to cooperate reasonably with RCA and its agents, employees, or contractors in the inspection of the Property and agrees to deliver to RCA all information in Donor’s possession or control pertaining to the condition of the Property, including engineering and environmental reports, studies, tests, monitoring results, and related documentation. 6. Title. 6.1 Immediately following the execution of this Agreement by both Parties, RCA shall cause Escrow Agent to issue to RCA (with a copy to Donor) a preliminary report for an ALTA Standard Policy of Title Insurance, setting forth all liens, encumbrances, easements, restrictions, conditions, pending litigation, judgments, administrative proceedings, and other matters affecting Donor’s title to the Property (“Preliminary Report”), together with copies of all documents relating to title exceptions referred to in the Preliminary Report. 6.2 Following the full execution of this Agreement by both Parties, RCA may cause a survey and/or an ALTA Survey of the Property to be prepared by a registered surveyor or professional engineer (“Survey”). Donor agrees to deliver to RCA, promptly following the full execution and delivery of this Agreement, copies of any survey of the Property in the possession of Donor. 6.3 RCA shall approve or disapprove, in writing to Donor with a copy to Escrow Agent, each exception shown on the Preliminary Report and each encroachment, overlap, or boundary line dispute, or any other matter that materially and adversely affects title to the Property or that violates any law, rule, or regulation reflected on the Survey (each an “Exception”) within twenty (20) business days following the receipt of the Preliminary Report or the Survey, whichever is later. RCA’s failure to object within the twenty (20) day period shall be 66 26493.00004\9067395.4 -6- deemed to be a disapproval of the Exceptions. The Exceptions approved by RCA hereunder shall be referred to as the “Approved Exceptions.” 6.4 If any Exception is disapproved or deemed disapproved (each a “Disapproved Exception”), Donor shall have the right, but not the obligation, within thirty (30) days following expiration of the twenty (20) day period provided under Section 6.3 above, to cause each Disapproved Exception to be discharged, satisfied, released, or terminated, as the case may be, of record, and in a form that is reasonably satisfactory to RCA and Escrow Agent, all at Donor’s sole cost and expense. Donor agrees to deposit into Escrow the sum sufficient to discharge any Disapproved Exception that may be discharged only by the payment of money. If Donor is unable or unwilling to obtain a discharge, satisfaction, release, or termination of any Disapproved Exception within the period specified above, then this Agreement shall automatically terminate ten (10) business days after expiration of the 30-day period for curing the Disapproved Exceptions or after Donor advises RCA in writing that Donor is unable or unwilling to cause such discharge, satisfaction, release, or termination, whichever occurs first, unless within such 10-business-day period RCA waives in writing such Disapproved Exception, in which event such Disapproved Exception shall be deemed an Approved Exception under this Agreement. If this Agreement terminates pursuant to the foregoing sentence, then Donor shall pay all charges of the Escrow Agent in connection with this transaction, including the charges of the surveyor and environmental engineering company; and the Parties shall be relieved of all further obligations and liabilities to each other under this Agreement except as otherwise provided herein, and all funds and documents deposited with Escrow Agent shall be promptly refunded or returned, as the case may be, by Escrow Agent to the depositing Party. Anything above to the contrary notwithstanding, it is understood and agreed that RCA’s indemnity obligations under Section 5 shall not terminate upon termination of this Agreement pursuant to this or any other provision hereof. 7. Installation of Markers. Donor shall execute a “fixed price” or “not to exceed price” contract for the installation of survey markers and white pipes [at a minimum of six (6) feet in height] (“Installation Contract”). Survey markers shall be installed in accordance with Riverside County Ordinance 460, section 9.10 and Ordinance 461, section 21 (attached herein as Exhibit “B”). Donor shall deposit with Escrow Agent prior to Close of Escrow a copy of the Installation Contract and Escrow Agent shall retain in Escrow sufficient of Donor’s funds to pay the Installation Contract, which payment may occur after the Close of Escrow. Donor shall provide RCA and Escrow Agent with a Completion Notice, evidencing the completion of all work under the Installation Contract. Within thirty (30) days after receipt of such Completion Notice, RCA shall provide written notice to Donor and Escrow Agent (“Installation Notice”) that RCA approves of all work done under the Installation Contract; or, in the alternative, such Installation Notice shall detail any objections which RCA may have to the work done under the Installation Contract. If RCA fails to provide any Installation Notice within thirty (30) days of receipt of any Completion Notice, then of all work done under the Installation Contract shall be deemed to have been approved by RCA. Upon Donor’s receipt of an Installation Notice containing objections or non-compliance issues, Donor shall arrange with the contractor to correct all items listed in the Installation Notice. Upon receipt of Donor’s second Completion Notice (evidencing the correction of all items listed in RCA’s Installation Notice), RCA shall have fifteen (15) days to provide a second Installation Notice to Donor and Escrow Agent. Should RCA’s second Installation Notice contain any objections or corrections not yet 67 26493.00004\9067395.4 -7- satisfactorily completed, then Donor shall once again arrange for the remaining corrections. Upon completion, Donor shall once again issue a Completion Notice to RCA and to Escrow Agent. In the event all objections and corrections have not yet been satisfied/completed, RCA shall have the right to engage a different contractor to complete the work and Donor agrees to bear the costs for the different contract to complete the work described in RCA’s Installation Notice(s). Any contractor retained by Donor or RCA under this Section 7 shall have a right of entry onto the Property. Escrow Agent’s payment in full of the Installation Contract (directly to the contractor) shall only occur upon Escrow Agent’s receipt of the following documents: (a) RCA’s confirmation to Escrow Agent that all work under the Installation Contract has been completed satisfactorily; and (b) conditional lien release by contractor (if required) for the full payment to be made under the Installation Contract. 8. Close of Escrow. 8.1 Title. Simultaneously with the Close of Escrow, Escrow Agent shall issue an ALTA Standard Policy of Title Insurance (formerly referred to as a CLTA Title Policy) (“Title Policy”) in the amount of $200,000, subject only to (i) liens for real property taxes, bonds, and assessments not then due, and (ii) the Approved Exceptions. 8.2 Donor’s Deposits into Escrow. Donor shall deposit with Escrow Agent on or prior to the Close of Escrow the following documents: (i) a grant deed in the form attached hereto as Exhibit “C” executed and acknowledged by Donor, conveying to RCA good and marketable fee simple title to the Property, subject only to the Approved Exceptions (“Deed”); (ii) Donor’s affidavit of nonforeign status as contemplated by Section 1445 of the Internal Revenue Code of 1986, as amended (“FIRPTA Affidavit”); (iii) copy of the Installation Contract and the Completion Notice described in Section 7; (iv) all funds required to be placed in escrow by Donor; and (v) Donor’s approval of the draft of Escrow Agent’s closing statement. 8.3 RCA’s Deposits into Escrow. RCA’s approval of the Survey, and RCA’s approval of the draft of Escrow Agent’s closing statement. RCA shall deposit with Escrow Agent prior to or after the Close of Escrow, the documents related to the Installation Contract described in Section 7. 8.4 Closing Date. The conveyance of the Property to RCA and the closing of this transaction (“Close of Escrow”) shall take place within one hundred twenty (120) days (“Closing Date”) following the establishment of an Escrow pursuant to Section 3 o f this Agreement. 68 26493.00004\9067395.4 -8- 8.5 Closing Statements. No more than two days prior to the Closing Date, Escrow Agent shall deliver to RCA and to Donor, for their respective approvals, drafts of Escrow Agent’s closing statement showing all receipts and disbursements of the Escrow. 8.6 Closing Instructions. On the Closing Date (or any extension thereof), Escrow Agent shall close Escrow as follows: (i) record the Deed (marked for return to RCA) with the Riverside County Recorder; (ii) issue the Title Policy; (iii) prorate taxes, assessments, rents, and other charges as provided in Section 8.7 below; (iv) retain an amount of Donor’s funds sufficient to pay the contractor under the Installation Contract described in Section 7; (v) prepare and deliver to both RCA and Donor one signed copy of Escrow Agent’s closing statement showing all receipts and disbursements of the Escrow; (vi) deliver to RCA the FIRPTA Affidavit, and the Withholding Affidavit; and (vii) If Escrow Agent is unable to simultaneously perform all of the instructions set forth above, Escrow Agent shall notify RCA and Donor and retain all funds and documents pending receipt of further instructions jointly issued by RCA and Donor. 8.7 Closing Costs and Prorations. Donor shall pay the following closing costs and prorations through the Close of Escrow: (i) All governmental conveyancing fees and taxes due upon transfer of the Property, except that no documentary transfer tax will be payable with respect to this transaction, pursuant to Revenue and Taxation Code Section 11922; (ii) The recording charges in connection with recordation of the Deed; except that this Deed is entitled to be recorded without a fee pursuant to Government Code Section 27383 because the Deed is for the benefit of a public agency; (iii) All charges in connection with issuance of the Title Policy in the amount of $200,000; (iv) INTENTIONALLY DELETED; (v) All charges related to any survey undertaken in connection with an ALTA Extended Policy of Title Insurance; 69 26493.00004\9067395.4 -9- (vi) All charges in connection with the Installation Contract; and (vii) All fees and charges levied by Escrow Agent. 8.8 Real Estate Taxes, Bonds, and Assessments. Donor shall pay real property taxes at the Close of Escrow based on the most current real property tax bill available, including any additional property taxes that may be assessed after the Close of Escrow but that relate to a period prior to the Close of Escrow, regardless of when notice of those taxes is received or who receives the notice. Donor may seek reimbursement from the Riverside County Tax Assessor’s office for any property taxes that have been assessed for a period after the Close of Escrow as RCA is a public agency exempt from payment of such taxes. RCA further agrees to cooperate with Donor to provide any necessary information to the Assessor’s office in connection with such request for refund. All installments of any bond or assessment that constitutes a lien on the Property at the Close of Escrow shall be paid by Donor. 8.9 Possession. Possession of the Property shall be delivered to RCA at the Close of Escrow. 9. Acceptance. The acceptance of the Property by RCA and the Closing of Escrow (as defined in Section 8) are subject to the satisfaction of the following no later than the Closing Date: (i) RCA’s approval of the condition of the Property as provided in Section 4 and title to the Property as provided in Section 6; (ii) The representations and warranties of Donor set forth in Section 2.2 shall be true and accurate as of the Closing Date; (iii) Donor’s performance of all obligations under this Agreement; (iv) No adverse material change shall have occurred with respect to the condition of the Property from the end of the Feasibility Period through the Closing Date; and (v) Escrow Agent being prepared to issue the Title Policy on the Close of Escrow, subject only to the Approved Exceptions. 10. Intentionally Deleted. 11. The performance by the RCA of its obligations under this Agreement shall relieve the RCA of any and all further obligations or claims on account of the acceptance of the offer of dedication. The RCA agrees to use the Property for the purposes of wildlife and plant habitat conservation pursuant to the MSHCP. 12. This Agreement and Escrow may be terminated by RCA upon three (3) days written notice to Donor and Escrow Holder if the conditions to closing set forth in Section 9 have 70 26493.00004\9067395.4 -10- not been fulfilled on or before the Closing Date. Upon termination by RCA pursuant to this Section 12, Donor shall be responsible for all costs and expenses of Escrow Holder. 13. As used in this Agreement, notice includes but is not limited to, the communication of any notice, request, demand, approval, statement, report, acceptance, consent, waiver and appointment. All notices must be in writing. Notice is given either (i) when delivered in person to the person or company intended named below, (ii) when delivered via facsimile with confirmation from the receiving party via return fax; or (iii) when sent via reputable overnight courier (such as Federal Express), addressed by name and addressed to the party or persons intended, as follows: To RCA: Western Riverside County Regional Conservation Authority Riverside Centre Building 3403 10th Street, Suite 320 Riverside, CA 92501 Phone: (951) 955-9700 Fax: (951) 955-8873 Attention: Executive Director To Donor: Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor P.O. Box 12008 Riverside, California 92502-2208 Attn: Executive Director Phone: (951) 787-7141 FAX: (951) 787-7920 until such time as a party gives notice of the change of address in accordance with the terms of this section. 14. This Agreement shall not be changed, modified or amended except upon the written consent of the Parties hereto. 15. This Agreement is the result of negotiations between the Parties and is intended by the Parties to be a final expression of their understanding with respect to the matters herein contained. This Agreement supersedes any and all other prior agreements and understandings, oral or written, in connection therewith. No provision contained herein shall be construed against the RCA solely because it prepared this Agreement in its executed form. 16. Donor, their assigns and successors in interest, shall be bound by all the terms and conditions contained in this Agreement, and all the parties thereto shall be jointly and severally liable thereunder. 17. This Agreement is not binding until executed by the Executive Director of the RCA. 71 26493.00004\9067395.4 -11- 18. Notwithstanding any other provision of this Agreement or any other agreement between any of the Parties hereto, once the Property is conveyed to and accepted by the RCA, the RCA shall have no obligation to return the Property to the Donor under any circumstances, except in the sole and exclusive discretion of the RCA. 19. Pursuant to RCA’s Policies and Procedures for Execution of IRS Form 8283 for Bargain Sales and Donations, RCA agrees to cooperate with Donor to acknowledge receipt of the donation of the Property by signing Internal Revenue Form 8283 (Non-Cash Charitable Contributions) before the Close of Escrow and any other tax-related forms or documents reasonably requested by Donor and to return any such forms to Donor within thirty business (30) days after RCA’s receipt of such forms from Donor. Notwithstanding the foregoing, RCA makes no representation or warranty to Donor regarding the tax attributes of this transaction, nor shall RCA endorse or otherwise acknowledge any valuation of the Property for tax purposes, it being understood that the Donor has obtained its own appraisals and tax advice for such purposes. 20. This Agreement may be executed in one or more counterparts. Each shall be deemed an original and all, taken together, shall constitute one and the same instrument. IN THE WITNESS THEREOF, the Parties have caused this Agreement to be executed by their duly-authorized representatives on the date and year set forth below. DONOR: Date: RCA: Date: Riverside County Transportation Commission By: Executive Director Western Riverside County Regional Conservation Authority By: Executive Director 72 26493.00004\9067395.4 -12- EXHIBIT “A” LEGAL DESCRIPTION OF PROPERTY All that certain real property situated in the County of Riverside, State of California, described as follows: PARCEL A: (APN 347-110-010) The East 1/2 of the Southeast 1/4 of the Southwest 1/4 of the Northeast 1/4 of Section 29, Township 5 South, Range 4 West, San Bernardino Base and Meridian, in the County of Riverside, State of California, according to Official Plat thereof. Excepting therefrom all oil, and mineral rights together with rights of ingress and egress as reserved by W. J. Pearson, et ux, in deed recorded March 11, 1920 in Book 519, Page 257 of Deeds, Riverside County Records. PARCEL B: (APN 347-110-011) The West one-half of the West one-half of the Southeast Quarter of the Northeast Quarter of Section 29, Township 5 South, Range 4 West, San Bernardino Base and Meridian, as shown by United States Government Survey. PARCEL C: (APN 347-110-095) In the City of Lake Elsinore, County of Riverside, State of California, being that portion of the Northeast quarter of the Southeast quarter of Section 29, Township 5 South, Range 4 West, San Bernardino Meridian, according to the Official Plat of said land filed in the District Land Office, described as follows: Beginning a point on the Southerly line of said Northeast quarter lying North 89°42'39" West 1023.94 feet from the South 1/16th corner common to Sections 29 and 28 of said Township, said point also being the most Westerly corner of Parcel 4 as described in a Deed recorded April 07, 2003 as Document Number 2003-243425, Official Records of said County; Thence along the Northwesterly boundary of said Parcel 4 the following 10 (ten) courses: North 77°42'37" East 16.81 feet, North 68°57'33" East 21.82 feet, North 61°56'20" East 11.52 feet, North 66°51'31" East 17.30 feet, North 84°48'29" East 14.97 feet, North 90°00'00" East 7.45 feet, South 82°32'08" East 7.43 feet, North 49°25'50" East 25.58 feet, North 56°44'09" East 15.38 feet and North 62°58'44" East 17.19 feet to the Northeasterly line of Parcel 6 as described in said Deed; Thence along the Northwesterly boundary of Parcel 2 as described in said Deed the following 48 (forty eight) courses: North 62°58'44" East 4.91 feet, North 77°48'16" East 15.21 feet, North 42°17'08" East 17.91 feet, North 52°42'27" East 21.21 feet, North 69°12'04" East 21.49 feet, North 83°39'45" East 18.19 feet, South 85°36'11" East 15.72 feet, North 33°39'23" East 10.70 73 26493.00004\9067395.4 -13- feet, North 40°29'48" East 10.18 feet, North 20°29'27" East 31.49 feet, North 26°51'18" East 27.90 feet, South 59°47'27" East 61.15 feet, North 83°25'29" East 40.95 feet, North 38°37'59" East 27.87 feet, North 11°24'56" East 55.38 feet, North 34°32'27" East 17.21 feet, South 79°41'25" East 35.19 feet, North 74°43'54" East 24.03 feet, North 49°00'56" East 26.58 feet, North 17°28'14" East 31.26 feet, North 2°04'22" East 41.01 feet, North 13°35'17" West 22.82 feet, North 37°14'08" West 32.79 feet, North 43°58'47" West 78.02 feet, North 20°10'43" East 20.08 feet, North 28°02'48" East 41.03 feet , North 34°05'07" East 42.28 feet, North 29°33'37" East 20.65 feet, North 32°07'19" East 62.69 feet, North 28°38'50" East 33.93 feet, North 41°45'54" East 23.56 feet, North 19°45'23" East 21.16 feet, North 25°48'57" East 21.22 feet, North 30°24'33" East 21.28 feet, North 43°33'40" East 42.47 feet, North 49°24'39" East 21.06 feet, North 54°00'01" East 20.96 feet, North 62°02'17" East 20.94 feet, North 66°24'14" East 57.02 feet, North 66°55'25" East 100.76 feet, South 75°27'52" East 28.12 feet, North 70°28'18" East 20.35 feet, North 46°06'22" East 41.18 feet, North 58°06'17" East 20.01 feet, North 31°23'39" East 22.75 feet, North 44°18'41" East 20.76 feet, North 84°10'13" East 21.94 feet and North 62°11'58" East 48.33 feet; Thence North 38°54'05" West 20.60 feet to a curve concave Easterly having a radius of 30.00 feet; Thence Northerly 33.18 feet along said curve through a central angle of 63°22'33" to a reverse curve concave Westerly having a radius of 100.00 feet; Thence Northerly 42.99 feet along said curve through a central angle of 24°37'50"; Thence North 0°09'22" West 27.08 feet to a curve concave Southwesterly having a radius of 15.00 feet; Thence Northwesterly 23.33 feet along said curve through a central angle of 89°07'45"; Thence North 89°17'07" West 68.65 feet to a curve concave Northerly having a radius of 100.00 feet; Thence Westerly 74.47 feet along said curve through a central angle of 42°40'09"; Thence North 46°36'58" West 50.47 feet to a curve concave Northeasterly having a radius of 300.00 feet; Thence Northwesterly 231.02 feet along said curve through a central angle of 44°07'20" to the Northerly line of said Northeast quarter; Thence along the boundary of said Northeast quarter the following 2 (two) courses: North 89°43'55" West 969.24 feet and South 0°39'17" West 659.73 feet to the Southwest corner of the Northwest quarter of said Northeast quarter; Thence South 17°15'07" East 691.89 feet to said Southerly line; Thence along said Southerly line, South 89°42'39" East 79.20 feet to the Point of Beginning. 74 26493.00004\9067395.4 -14- EXHIBIT B Western Riverside County Regional Conservation Authority Survey Monument and GPS Specifications Survey monuments shall be installed in accordance with Riverside County Ordinance 460, section 9.10 and Ordinance 461, section 21. (See attached Exhibit B-1.) Unless otherwise specified by RCA all monuments shall comply with criteria for Standard “A” monuments. 75 26493.00004\9067395.4 -15- EXHIBIT B-1 http://www.clerkoftheboard.co.riverside.ca.us/ords.htm Ordinance 460 SECTION 9.10. SURVEYS AND MONUMENTS. A. At the time of making the survey for a final map or parcel map, the engineer or surveyor shall set sufficient durable monuments to conform to the standards described in section 8771 of the Business and Professions code and also comply with the requirements of Ordinance No. 461 and with the requirements of the County Surveyor. B. All monuments for final maps and parcel maps shall be set prior to the recordation of the map. The land divider may execute a secured agreement or cash bond guaranteeing the setting of the monuments upon approval by the County Surveyor. Ordinance 461 MONUMENTS 21.01 General Requirements: The subdivision boundaries, lot corners, road, street, highway centerline, angle points in all lines, beginning and end of all curved lines, shall monumented in accordance with the hereinafter described standard monuments and procedures. Any monument having characteristics other than the hereinafter described may be used only upon written approval of the County Surveyor. If an existing record and identified monument is found on the ground at the location of a subdivision corner, this monument may be used in lieu of replacement with a new monument provided the existing monument is a type considered to be durable. 21.02 Standard “A” Monuments: This monument is to be one inch (inside diameter) iron pipe eighteen (18”) inches long. A metal disc or plastic plug bearing the registered civil engineer or land surveyor number shall be securely affixed to the top of the pipe. The top surface of the monument shall be flush with natural ground, flush with surface in paved streets and twelve (12”) inches down in unpaved streets. 21.03 Standard “B” Monuments: This monument is to be an eighteen (18”) inch long copper clad steel pin to which is secured at one end a one and one-half (1-1/2”) inch conical brass cap. The monument may be used as an alternate to the type “A” monument to mark centerline control on streets. The monument is to be driven flush with the street pavement. After setting the monument, the Registered Civil Engineer or Land Surveyor number shall be stamped into the surface of the brass cap. Modification of the above standard may be approved by the County Surveyor. See Standard drawing numbers 900 and 901 for further information. 21.04 Standard “C” Monuments: This monument to consist of a 2” x 2” x 18” long redwood stake cut from clear heartwood firmly set in the ground. The exact point of intersection of the 76 26493.00004\9067395.4 -16- lines shall be marked on the top center of the stake by a suitable tack or nail, which in turn shall be used to secure to the stake the metal disk bearing the Registered Civil Engineer or Land Surveyor Number. A 1/2” rebar, 18” long with appropriately stamped plastic cap may be used in place of a redwood stake. See monument schedule for use of this monument. 21.05 Standard “D” Monuments: This monument to consist of a 3/4” inside diameter x 18” long galvanized iron pipe, driven to a point not to exceed 1” above the natural ground surface. The exact point of intersection of the lines shall be marked on the top center of the pipe by a suitable tack or nail, which in turn shall be used to secure to the pipe the metal disk bearing the Registered Civil Engineer or Land Surveyor Number of plastic plug with RCE or LS number with mark for exact point. See monument schedule for use of this monument. 21.06 Standard “E” Monuments: This monument to consist of lead plug or steel pin with metal Identification disk set in concrete curb. See monument schedule for use of this monument. 77 26493.00004\9067395.4 -17- Exhibit C Grant Deed Recorded at request of and return to: Economic Development Agency Real Estate Division 3403 Tenth Street, Suite 400 Riverside, California 92501 FREE RECORDING This instrument is for the benefit of the Western Riverside County Regional Conservation Authority, and is entitled to be recorded without fee. (Gov. Code, § 27383) (Space above this line reserved for Recorder’s use) GRANT DEED PROJECT: MULTIPLE SPECIES HABITAT CONSERVATION PLAN APN: 347-110-010, 347-110-011, 347-110-095 FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a county transportation commission, herein called “Grantor”, hereby GRANTS to WESTERN RIVERSIDE COUNTY REGIONAL CONSERVATION AUTHORITY, a public agency and joint powers authority (“Grantee”), the real property in the County of Riverside, State of California, described as: See Exhibit “A” attached hereto and made a part hereof IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the __th day of _____, 2014. Signature of Donor ATTACH NOTARY ACKNOWLEDGEMENT 78 26493.00004\9067395.4 -18- CERTIFICATE OF ACCEPTANCE This is to certify that the real property conveyed by RIVERSIDE COUNTY TRANSPORTATION COMMISSION, on the Grant Deed dated _____ ___, 2014, to the WESTERN RIVERSIDE COUNTY REGIONAL CONSERVATION AUTHORITY (Grantee), is hereby accepted by the undersigned officer on behalf of the Grantee, pursuant to authority conferred by Ordinance No. 08-01, as adopted by the Board of Directors on July 7, 2008. Dated: GRANTEE: WESTERN RIVERSIDE COUNTY REGIONAL CONSERVATION AUTHORITY, A public agency and a joint powers authority By: Charles V. Landry, Executive Director 79 AGENDA ITEM 9 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 25, 2014 TO: Western Riverside County Programs and Projects Committee FROM: Mark Lancaster, Right of Way Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Quitclaim Deed Containing Covenants and Restrictions Including a Power of Termination and the Option to Purchase Agreement for the Old Elsinore Museum Line STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve the quitclaim deed containing covenants and restrictions including a power of termination (quitclaim deed) and the option to purchase agreement (agreement) between the Commission and the city of Perris for the Old Elsinore Museum Line (OEML) as well as the area between 7th and 10th Streets (conveyed properties); 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the quitclaim deed and the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. BACKGROUND INFORMATION: The Commission acquired the OEML in 1993 from Atchison, Topeka and Santa Fe Railway Company as a part of the overall purchase of the San Jacinto Branch Line. The conveyed properties were subject to a lease agreement with Orange Empire Rail Museum (OERM) dated February 12, 1979. Since then, the lease has been assumed by the city of Perris, but OERM has the right to sublease the conveyed properties for the purpose of conducting museum train movements, both with and without passengers. The Commission and the city entered into a comprehensive license agreement for railroad tracks and other improvements on March 7, 2013. The Commission does not currently require the conveyed properties for its own purposes. The quitclaim deed will grant the city all rights, title and interest to the conveyed properties as long as the conveyed properties is used for the exclusive purpose of conducting museum train movements, both with and without passengers. If the Commission determines the conveyed properties is necessary for commuter rail service or related purposes, the Commission has the option to issue a 90-day written notice to the city Agenda Item 9 80 to terminate the city’s fee interest and take possession of any improvements to the conveyed properties for a purchase price of $1. The Commission is not entitled to exercise the option for seven years after the agreement date or five years after the completion of the new track, covered by the comprehensive license agreement for railroad tracks and other improvements, whichever is earlier. The option will expire 80 years after the agreement date, if it was not previously exercised. Staff is requesting the approval of the quitclaim deed and the option agreement in order to move forward with the transaction. Financial Information In Fiscal Year Budget: N/A Year: FY 2015/16+ Amount: $1 Source of Funds: 1989 Measure A Western County Rail Budget Adjustment: N/A GL/Project Accounting No.: 003800 81401 221 33 81401 Fiscal Procedures Approved: Date: 08/12/14 Attachments: 1) Quitclaim Deed Containing Covenants and Restrictions Including A Power Of Termination 2) Option to Purchase Agreement 3) Map Agenda Item 9 81 ATTACHMENT 1 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92502-2208 Attn: Executive Director ____________________________________________________________________________ Exempt from Recording Fee Exempt from Documentary Transfer Tax Pursuant to Government Code Section 27383 Pursuant to R&T Code § 11922 QUITCLAIM DEED CONTAINING COVENANTS AND RESTRICTIONS INCLUDING A POWER OF TERMINATION This Quitclaim Deed is made this __ day of ______, 2014 (“Effective Date”), by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a county transportation commission (“Grantor”) and the CITY OF PERRIS, a California municipal corporation (“Grantee”). RECITALS WHEREAS, Grantor owns in fee that certain real property, including the existing railroad track and certain railroad crossings and other improvements and appurtenances, in the City of Perris, Riverside County, California generally located south of 7th Street to Mapes Road, located within the City of Perris, County of Riverside, State of California (the “Property”), as more fully described in the legal description attached as Exhibit “A” and depicted in the attached Exhibit “B”, both incorporated herein by reference; and WHEREAS, the Property was subject to that certain lease agreement originally entered into by the Atchison, Topeka and Santa Fe Railway Company (“Santa Fe”) and the Orange Empire Railway Museum (“OERM”) dated February 12, 1979, as subsequently amended (Secretary’s Contract No. 157248, as amended) (“Lease”); and WHEREAS, the Lease was assumed by Grantor upon transfer of ownership of the Property from Santa Fe to Grantor; and WHEREAS, Grantor and Grantee have entered into that certain Comprehensive License Agreement (“License”) to provide for the conveyance of the Property to Grantee and the licensing to Grantee of certain property referred to in the License as the “Perris Depot Property” and the “New Track Property,” collectively referred to as the “Licensed Property.” The Licensed Property is adjacent to the Property, and both the Property and the Licensed Property properties have been used by OERM for the purpose of conducting museum train movements, both with and without passengers; and WHEREAS, Grantor acknowledges that Grantee intends to enter into a new license agreement with OERM for the Licensed Property and the Property (“Sublicense”), for the 82 purpose of conducting museum train movements, both with and without passengers, which movements involve the operation of historic rail equipment which includes one or more diesel locomotives, steam locomotives, electric trains, and one or more passenger cars; and WHEREAS, Grantor does not currently require the Property for its own purposes, however, Grantor may, in the future, require the Property for the purpose of providing commuter rail service, and, therefore, has entered or intends to enter that certain Option to Purchase Agreement dated , 2014 (“Option Agreement”) with Grantee whereby Grantee, in consideration of Grantor’s conveyance of the Property to Grantee pursuant to this Quitclaim Deed, grants an irrevocable option to Grantor to purchase the Property, or a portion thereof, which option shall be maintained for the period set forth therein; and WHEREAS, Grantor now intends to convey the Property to Grantee, for continuation of its use by OERM as provided in the Sublicense, or use by Grantee as provided in the License, subject to certain restrictions and conditions, including a power of termination as set forth in this Quitclaim Deed; and WHEREAS, Grantee acknowledges that, as a material part of the consideration for this conveyance, Grantor has reserved to itself a power of termination as provided below. Grantee acknowledges that any future exercise of the power of termination will serve a public purpose; and WHEREAS, Grantee further acknowledges that Grantor acquired the property from Santa Fe pursuant to that certain Correction Grant Deed and Grant of Easement (San Jacinto Subdivision (Riverside County)) dated March 29, 1993, recorded in the Official Records of Riverside County as Document No. 191848 (“Correction Deed”), the terms of which are incorporated herein by reference. Pursuant to the Correction Deed, BNSF, as successor in interest to Santa Fe, retains a “Reserved Rail Freight Service Easement” and a “Reserved Rail Freight Service License” (as those terms are defined in the Correction Deed) in the properties described in the Correction Deed, which include the Property. WHEREAS, Grantee further acknowledges that the conveyance of the Property is made subject to certain restrictions regarding its use as set forth below. QUITCLAIM NOW THEREFORE FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Grantor hereby remises, releases and quitclaims to Grantee all of Grantor's rights, title and interest in and to that certain real property legally described in Exhibit “A” attached to and by this reference incorporated into this Quitclaim Deed subject to the rights and restrictions contained below. Section 1. Condition of Property. Grantee acknowledges and agrees that the Property is quitclaimed by Grantor to Grantee in its "AS IS," "WHERE IS" and "SUBJECT TO ALL FAULTS," as of the date of recordation of this Quitclaim Deed, with no warranties, expressed or implied, as to the environmental or other physical condition of the Property, the presence or absence of any patent or latent environmental or other physical condition on or in the Property, or any other matters affecting the Property. 17336.02302\7616149.12 83 Section 2. Prohibited Uses. Grantee covenants and agrees for itself, its successors and assigns that Grantee shall not use the Property for any purpose that may interfere with Grantor’s future ability to use the Property for commuter rail service, including but not limited to the following: placing of any buildings, infrastructure, and/or permanent improvements on the Property (“Interfering Structures”), except as provided in the License or Sublicense or as otherwise approved by Grantor. Section 3. No Transfer of Any Interest in the Property. Grantee covenants and agrees for the exclusive benefit of Grantor that Grantee will not transfer any ownership or other interest in the Property without the prior written approval of Grantor. Grantor hereby approves the Sublicense subject to Grantor’s rights of review under the License. Section 4. No Encumberances. Grantee covenants and agrees for the exclusive benefit of Grantor that Grantee will not encumber the Property with any mortgage, deed of trust or similar financial instrument. Section 5. Conditional Grant. Grantee covenants and agrees for itself, its successors and assigns that the conveyance of the Property from Grantor to Grantee is made upon the express condition, limitation and restriction that the Property be used for the exclusive purpose of conducting museum train movements, both with and without passengers, which is hereby intended to mean the operation of historic rail equipment, except as may be approved by Grantor. Grantee agrees for itself, its successors and assigns that the express condition, limitation and restriction set forth in this Section 5 are intended to be binding upon Grantee and its permitted successors and assigns forever. Section 6. Covenant to Reconvey Property. Grantee covenants and agrees for the exclusive benefit of Grantor that Grantee shall reconvey the Property to Grantor, in accordance with the terms of this Quitclaim Deed, upon notification from Grantor, pursuant to Section 8(a) below, that Grantee has breached any condition, restriction or limitation set forth herein. Section 7. Complete Restoration. Grantee covenants and agrees to keep the Property free from any Interfering Structures. If Grantor later identifies any Interfering Structures on the Property, upon notice of its intent to exercise its power of termination pursuant to Section 7(a) below or upon exercise of its option under the Option Agreement, Grantor may also provide Grantee written notice of its demand that any Interfering Structures be removed within the thirty (30) day notice period. Grantee shall, at its own cost and expense, satisfactorily remove any Interfering Structures to Grantor’s reasonable satisfaction, and in the event of Grantee’s failure to do so, the same may be accomplished by Grantor at Grantee's expense. Section 8. Grantor Power of Termination Regarding Property. (a) Grantor hereby reserves a power of termination pursuant to Civil Code Sections 885.010, et seq., exercisable by Grantor, in its sole and absolute discretion, upon ninety (90) calendar days written notice to Grantee referencing this Section 8, to terminate the fee interest of Grantee in the Property and/or any improvements to the Property and revest such fee title in Grantor and take possession of all or any portion of the Property and any improvements located thereon, without compensation to Grantee, upon Grantee’s breach of the condition set forth in 17336.02302\7616149.12 84 Section 5 above, or upon a breach by Grantee of any other restriction contained in this Quitclaim Deed. (b) The ninety (90) calendar day written notice specified in Section 8(a) shall specify the alleged breach of Grantee triggering Grantor's exercise of the power of termination. Grantor shall proceed with its remedy set forth in Section 8(a) only if the Grantee continues in default for a period of ninety (90) calendar days following such notice or, upon commencing to cure such default, fails to diligently and continuously prosecute said cure to satisfactory conclusion. (c) Upon Grantor's exercise of its power of termination pursuant to this Section 8, Grantee or its successors or assigns shall convey by quitclaim deed to Grantor title to the Property, as specified in Grantor's notice pursuant to Section 8(a), and all improvements thereon. Such conveyance shall be duly acknowledged by Grantee and a notary in a manner suitable for recordation. Grantor may enforce its rights pursuant to this Section 8 by means of injunctive relief or other appropriate action filed in any court of competent jurisdiction. (d) IMMEDIATELY FOLLOWING THE NINETY (90) DAY PERIOD SPECIFIED IN SECTION 8(A), ABOVE, GRANTOR, ITS EMPLOYEES AND AGENTS SHALL HAVE THE RIGHT TO REENTER AND TAKE POSSESSION OF ALL OR ANY PORTION OF THE PROPERTY AND ANY IMPROVEMENTS THEREON, WITHOUT FURTHER NOTICE OR COMPENSATION TO GRANTEE. BY INITIALING BELOW, GRANTEE HEREBY EXPRESSLY WAIVES, TO THE MAXIMUM EXTENT ALLOWED BY LAW, ANY AND ALL RIGHTS THAT GRANTEE MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 791 AND CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1162, AS THOSE STATUTES MAY BE AMENDED, REPLACED, RENUMBERED OR SUBSTITUTED, OR UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. ___________________ Initials of Grantee’s Authorized Representative (e) GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR'S EXERCISE OF ITS POWER OF TERMINATION AND RIGHT OF REENTRY PURSUANT TO THIS SECTION 8 MAY WORK A FORFEITURE OF THE ESTATE IN THE PROPERTY CONVEYED TO GRANTEE THROUGH THIS QUITCLAIM DEED. GRANTEE HEREBY EXPRESSLY WAIVES, TO THE MAXIMUM EXTENT ALLOWED BY LAW, ANY AND ALL EQUITABLE AND LEGAL DEFENSES THAT GRANTEE MAY HAVE TO SUCH FORFEITURE, INCLUDING, BUT NOT LIMITED TO, THE DEFENSES OF LACHES, WAIVER, ESTOPPEL, SUBSTANTIAL PERFORMANCE OR COMPENSABLE DAMAGES. GRANTEE FURTHER EXPRESSLY WAIVES, TO THE MAXIMUM EXTENT ALLOWED BY LAW, ANY AND ALL RIGHTS AND DEFENSES THAT GRANTEE MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 3275 OR ANY OTHER STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT. GRANTEE ACKNOWLEDGES THAT THE TERMS AND CONDITIONS THIS QUITCLAIM DEED REFLECT THE POSSIBILITY OF FORFEITURE BY VIRTUE OF THE EXERCISE OF GRANTOR'S POWER OF TERMINATION PROVIDED IN THIS 17336.02302\7616149.12 85 SECTION 8 AND FURTHER ACKNOWLEDGE THAT GRANTEE HAS RECEIVED INDEPENDENT AND ADEQUATE CONSIDERATION FOR ITS WAIVER AND RELINQUISHMENT OF RIGHTS AND REMEDIES PURSUANT TO THIS SECTION 8. ___________________ Initials of Grantee’s Authorized Representative Section 9. Grantee Indemnity. Commencing as of the Effective Date, and to the fullest extent permitted by law, Grantee shall at all times indemnify and save harmless Grantor against and pay in full all losses, damages, or expenses that Grantor may sustain, incur or become liable for, including, but not limited to, (a) loss of or damage to property, or (b) injury to or death of persons, resulting in any manner from the Property or the use, ownership, maintenance or operation thereof on or after the Effective Date by Grantee or any third party, including, without limitation, any licensee of Grantee. The indemnification and defense obligations set forth in this Section 9 shall apply except to the extent of the sole negligence or willful misconduct of Grantor. Section 10. Covenants, Conditions and Restrictions Run with the Land. Each of the covenants and agreements contained in this Quitclaim Deed touch and concern the Property and each of them is expressly declared to be a covenant that runs with the land for the benefit of Grantor for the entire period that such covenants are in full force and effect, regardless of whether Grantor is or remains an owner of any land or interest in land to which such covenants relate. Grantor, in the event of any breach of any such covenants, has the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings, to enforce the curing of such breach, as provided by law. Section 11. Duration of Covenants, Conditions and Restrictions. The covenants, conditions, restrictions and agreements of this Quitclaim Deed shall have the durations set forth below: Section 2: in perpetuity Section 3: in perpetuity Section 4: in perpetuity Section 5: in perpetuity Section 6: in perpetuity Section 7: in perpetuity Section 9: in perpetuity Section 12. Interpretation as Condition Subsequent. It is the intent of Grantor in executing this Quitclaim Deed that all of the covenants, conditions, restrictions and agreements set forth in this Quitclaim Deed be given full force and effect in favor of Grantor, as Grantor would not have executed this Quitclaim Deed without such covenants, conditions, restrictions and agreements, and that each such covenant, condition, restriction and agreement should be considered, as necessary to its enforcement in favor of the Grantor, as a condition subsequent to the conveyance of this Quitclaim Deed. Section 13. BNSF Reservation of Easement and License; Obligations of Grantee. Notwithstanding any other provision herein, this Quitclaim Deed and the rights granted 17336.02302\7616149.12 86 hereunder are expressly subject to the Correction Deed and the rights and obligations of the parties thereunder including, but not limited to, BNSF’s “Reserved Rail Freight Service Easement” and “Reserved Rail Freight Service License”, as well as the rights and obligations under the Shared Use Agreement (as referenced in the Correction Deed) as such rights and obligations pertain to the Property. As successor in interest to the Property, Grantee shall be responsible for all obligations of Grantor under the Correction Deed and the Shared Use Agreement, as such obligations pertain to the Property. Section 14. Costs and Attorneys' Fees. If legal proceedings are initiated to enforce the rights, duties or obligations of any of the covenants set forth in this Quitclaim Deed, then the prevailing party in such proceeding shall be entitled to collect its reasonable attorney fees and costs from the other party in addition to any other damages or relief obtained in such proceedings. Section 15. Severability. In the event that any provision of this Quitclaim Deed is held to be invalid, unenforceable or unlawful by a final judgment of a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision of this Quitclaim Deed. Section 14. Incorporation of Recitals. The Recitals set forth above are true and correct and are incorporated into this Quitclaim Deed by reference as though fully set forth herein. [SIGNATURES ON FOLLOWING PAGE] 17336.02302\7616149.12 87 QUITCLAIM DEED SUBJECT TO POWER OF TERMINATION IN WITNESS WHEREOF, the Grantor and the Grantee have caused this instrument to be executed on their behalf by their respective and duly authorized officers, on the following dates, effective as of _______________, 2014. GRANTOR: Dated: ______________________ RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a county transportation commission By: ______________________________________ Anne Mayer Executive Director GRANTEE: Dated: ______________________ CITY OF PERRIS, a California municipal corporation By: ______________________________________ Its: _____________________________________ ATTEST: By: ______________________________________ Its: City Clerk 17336.02302\7616149.12 88 ATTACHMENT 2 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92502-2208 Attn: Executive Director ____________________________________________________________________________ Exempt from Recording Fee Exempt from Documentary Transfer Tax Pursuant to Government Code Section 27383 Pursuant to R&T Code § 11922 OPTION TO PURCHASE AGREEMENT THIS OPTION TO PURCHASE AGREEMENT (“Agreement”) is made as of ______________, 2014 (“Agreement Date”), by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a county transportation commission (“Optionee”) and the CITY OF PERRIS, a California municipal corporation (“Optionor”). Optionor and Optionee may be referred to herein individually as a “Party” or collectively as the “Parties.” R E C I T A L S 1. Optionee owns in fee that certain real property, including the existing railroad track, in the City of Perris, Riverside County, California generally located south of 7th Street to Mapes Road, commonly known as the Near Perris (Old Elsinore Museum Line) (the “Property”), as more fully described in the legal description attached as Exhibit “A” and depicted in the attached Exhibit “B”, both incorporated herein by reference. 2. The Property was subject to that certain lease agreement originally entered into by the Atchison, Topeka and Santa Fe Railway Company (“Santa Fe”) and the Orange Empire Railway Museum (“OERM”) dated February 12, 1979, as subsequently amended (Secretary’s Contract No. 157248, as amended) (“Lease”), which was assumed by Optionee upon transfer of the Property from Santa Fe to Optionee. 3. Optionor and Optionee have entered into that certain Comprehensive License Agreement (“License”) to provide for the conveyance of the Property to Optionor and the licensing to Optionor of certain property referred to in the License as the “Perris Depot Property.” The Perris Depot Property is adjacent to the Property, and both the Property and the Perris Depot Property properties have been used by OERM for the purpose of conducting museum train movements, both with and without passengers. 4. Pursuant to that certain Quitclaim Deed Containing Covenants and Restrictions Including a Power of Termination, dated as of , 2014, (“Quitclaim Deed”) Optionee will convey the Property to Optionor, for continuation of its current use as made by OERM as provided in the License and Quitclaim Deed, subject to certain restrictions and conditions, including a power of termination as set forth therein. 89 5. In connection with the conveyance to be made under the Quitclaim Deed, and as material consideration therefor, Optionee has negotiated the exclusive right and option (“Option”) to purchase the Property or a portion thereof (“Option Property”) from Optionor at such future date, if any, as Optionee requires the Property for the purpose of providing commuter rail service. 6. Upon its exercise of the Option, Optionee shall pay the agreed Purchase Price for the Option Property, as set forth herein, and Optionee shall not be required to pay additional consideration for the Option Property. 7. In light of the foregoing, Optionor herein grants an option to Optionee to purchase the Option Property as more particularly set forth herein. O P T I O N A G R E E M E N T NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows: A. Grant of Option. In consideration of Optionee’s agreement to convey the Property to Optionor pursuant to the Quitclaim Deed, Optionor hereby grants to Optionee the Option to purchase the Option Property, which shall be exercisable by Optionee in the manner and on the terms and conditions set forth in this Agreement. If not previously exercised, the term of the Option (“Option Term”) shall expire eighty (80) years after the Agreement Date. B. Exercise of Option. Optionee shall exercise the Option, if at all, by giving ninety (90) calendar days written notice to Optioner during the Option Term that Optionee requires the Option Property for commuter rail or related purposes (“Exercise Notice”). The Exercise Notice shall be accompanied by the Purchase Price described in Section C below. The Exercise Notice shall specify the proposed use of the Option Property. Optionee’s timely delivery of the Exercise Notice and the Purchase Price to Optionor shall create a binding contract for the purchase and sale of the Option Property. Optionee shall not be entitled to exercise the Option for seven (7) years commencing as of the Agreement Date, or five (5) years after the date of completion of the New Track (as defined in the License), whichever is earlier. C. Purchase Price and Closing Costs. The purchase price, including any applicable closing costs, for the Option Property (“Purchase Price”) shall be One Dollar ($1.00). Optionee shall pay any applicable escrow fees, and any other closing costs. D. Conveyance. Upon Optionee’s timely exercise of the Option, Optionor or its successors or assigns shall, at Optioner’s sole expense, remove from title to the Option Property, prior to the closing date, all encumbrances not existing as of the date of the Quitclaim Deed (including without limitation any monetary liens) and shall thereafter convey by quitclaim deed to Optionee title to the Option Property, as specified in the Exercise Notice, and all improvements thereon. Such conveyance shall be duly acknowledged by Optionor, or its successors or assigns and a notary in a manner suitable for recordation. Optionee may enforce its rights pursuant to this Agreement by means of an action filed in any court of competent jurisdiction. Any improvements remaining on the Option Property following conveyance of the 17336.00609\7864328.5 90 Option Property from Optionor to Optionee, shall become the property of Optionee without further compensation to Optionor. E. Operation of Property During Option Term. During the period commencing on the Agreement Date and ending on the earlier to occur of (a) the recording of the grant deed conveying the Option Property to Optionee or (b) the expiration of the Option: 1. Maintenance. Optionor shall maintain the Option Property in as good condition and state of repair as that existing on the Agreement Date (ordinary wear and tear excepted) in compliance with applicable law. 2. No Alteration. Except as authorized in the License or the Quitclaim Deed, Optionor shall not materially alter the physical condition of the Option Property , or introduce or release, or permit the introduction or release, in, from, under or on the Property of any substance or material that is described as a toxic or hazardous substance, waste or material or a pollutant or contaminant, or words of similar import, under applicable Federal, state or local laws and regulations. F. Expiration Without Exercise; Unenforceability of Option. Should the Option expire without being exercised or be deemed unenforceable by a court of competent jurisdiction Optionor shall reasonably cooperate with Optionee to execute and acknowledge an instrument providing Optionee an easement for Optionee’s use of the Option Property for commuter rail service. This Section F shall survive the termination or expiration of this Agreement. G. Miscellaneous. 1. Brokerage Commissions. Each Party warrants and represents to the other that no broker, finder or other intermediary hired or employed by it is entitled to a commission, finder’s fee or other compensation based upon the transaction contemplated hereby for which the other Party may become financially responsible and each Party shall indemnify and hold harmless the other Party from and against any and all claims, liabilities, losses, damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees, court costs and litigation expenses) caused by or arising out of the claim of any broker, finder or other intermediary alleging to have been employed or hired by the indemnitor, to a commission, finder’s fee or other compensation based upon the transaction contemplated hereby. The obligations of Optionor and Optionee pursuant to this Section shall survive any termination of this Agreement. 2. Notices. Any notice hereunder to be given by Optionee to Optionor shall be deemed to be properly served on the date it is deposited in the United States Mail, postage prepaid, addressed to City Manager, City of Perris, 101 North “D” Street, Perris, California 92570. Any notice to be given hereunder by Optionor to Optionee shall be deemed to be properly served on the date it is deposited in the United States Mail, postage prepaid, addressed to Executive Director, Riverside County Transportation Commission, 4080 Lemon Street, Third Floor, Riverside, CA 92502-2208. Either Optionor or Optionee may change its address for the receipt of notice by giving written notice thereof to the other party of such change. 3. Time of the Essence. Time is of the essence of this Agreement and each and every term and provision hereof. 17336.00609\7864328.5 91 4. California Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California applicable to agreements made and to be performed within the state. 5. Interpretation. This Agreement has been negotiated at arm’s length between the Parties. Accordingly, any rule of law (including California Civil Code Section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the purpose of the Parties and this Agreement. 6. Severability. If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be invalid or unenforceable, the remainder of this Agreement and application of such provision to other circumstances, shall be interpreted so as best to reasonably effect the intent of the Parties hereto. 7. Performance of Acts on Business Days. Unless specifically stated to the contrary, all references to days herein shall be deemed to refer to calendar days. In the event that the final date for payment of any amount or performance of any act hereunder falls on a Saturday, Sunday or holiday, such payment may be made or act performed on the next succeeding business day. 8. Venue; Jurisdiction. The Parties hereto agree that the State Courts located in Riverside County, California (“Court”) shall have exclusive jurisdiction over any action or proceeding brought to enforce or interpret any provision of this Agreement or otherwise arising out of the transaction described herein (“Action”), and the Parties hereby consent to the exercise of personal jurisdiction over them by the Court for purposes of resolving the Action. Either Party may file a complaint with the Court, and in no other court. 9. Attorneys’ Fees. In the event of any Action instituted between Optionor or Optionee in connection with this Agreement, the prevailing Party shall be entitled to recover from the losing Party all of its costs and expenses, including, without limitation, court costs, all costs of appeals and reasonable attorneys’ fees. 10. Further Assurances; Survival. Subject to the terms and conditions hereof, the Parties agree to cooperate with each other and to perform such further acts or execute and deliver such additional instruments or documents as any Party may reasonably request in order to carry out the purposes of this Agreement and the transactions contemplated hereby. All covenants and obligations contained in this Agreement which imply or require performance after the conveyance of the Option Property date shall survive such conveyance. 11. Entire Agreement; Amendments. This Agreement is intended by the Parties to be the final expression of their agreement with respect to the subject matter hereof, and is intended as the complete and exclusive statement of the terms of the agreement between the Parties. As such, this Agreement supersedes any prior understandings between the Parties, whether oral or written. Any amendments to this Agreement shall be in writing and shall be signed by all Parties hereto. 17336.00609\7864328.5 92 12. No Waiver. No delay on the part of any Party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party hereto of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege hereunder, nor shall any single or partial exercise of any right, power or privilege hereunder, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Assignment. Optionor shall not assign any of its rights or delegate any of its obligations hereunder. Optionee may freely assign its rights hereunder to another entity for the purpose of providing commuter rail service on the Option Property. 14. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, representatives, successors and permitted assigns. 15. Headings; Cross-References; Exhibits. The headings and captions used in this Agreement are for convenience and ease of reference only and shall not be used to construe, interpret, expand or limit the terms of this Agreement. 16. Counterparts. This Agreement may be executed in any number of counterparts and by the Parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 17. Option Runs with the Land. This Option, and the rights and obligations herein, shall run with the Option Property and shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. [Signatures on following page] 17336.00609\7864328.5 93 SIGNATURE PAGE TO OPTION TO PURCHASE AGREEMENT BY AND BETWEEN RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND CITY OF PERRIS IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Agreement Date. FOR “OPTIONEE” RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: Anne Mayer, Executive Director FOR “OPTIONOR” CITY OF PERRIS By: Name: Its: APPROVED AS TO FORM: By: Best Best & Krieger LLP Counsel to the Riverside County Transportation Commission ATTEST: By: Its: City Clerk APPROVED AS TO FORM: By: Aleshire & Wynder, LLP Eric L. Dunn, City Attorney 17336.00609\7864328.5 94 Exhibit B Orange EmpireRailway Museum 200' 100' Conveyed PropertiesA BEllis GoetzMapes DParkSeventh Mountain Eleventh PerrisRiverTenth C7th Eighth JohnsonAlpine Cas e WittMalbert Artlo Perou YucatecaPerrisitoCelebration Midway Ninth 9thF PlazaBeeson SycamoreTwelfth Co m m e r c i a l Mercado RamonaAuburnRedbud TiendaThirteenth Tierra RojoFaithCross Red Cedar Penasco Grande GaleriaLoma Bonita Gypsum Paseo Adelanto Punta Arenas GoetzNinth Eighth Tenth FCom m e r c i a l Perris, Riverside County, CA This map was created using the best data available at the time ofproduction. Epic Land Solutions Inc. assumes no responsibility forthe accuracy of third party information. This map is intended for datavisualization purposes only and should not serve as the basis for any legal action or be used for engineering purposes. 8/18/2014 Property 0 500 1,000250 Feet O 95 AGENDA ITEM 10 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 25, 2014 TO: Western Riverside County Programs and Projects Committee FROM: Patti Castillo, Capital Projects Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Agreement with M. S. Construction Management Group for the Construction of the Riverside Downtown Station Operations Control Center, in the City of Riverside STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement No. 14-31-149-00 to M. S. Construction Management Group for the construction of the Riverside Downtown Station Operations Control Center (RDNOCC), in the amount of $1,533,891, plus a contingency amount of $153,389, for a total amount not to exceed $1,687,280, pending final bid analysis; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Amend the FY 2014/15 Commuter Rail Short Range Transit Plan (SRTP) to allocate an additional $250,000 of Transportation Development Act (TDA) State Transit Assistance (STA) funds for construction of the RDNOCC; 4) Reprogram $100,000 of STA funds from the Perris Multimodal project to the RDNOCC; 5) Approve an increase of $737,280 in FY 2014/15 budgeted expenditures for the RDNOCC project; 6) Approve an increase of $350,000 in FY 2014/15 budgeted transfer in to the RDNOCC and corresponding transfer out from the STA fund; 7) Authorize the Executive Director to approve contingency work as may be required for the project; and 8) Forward to Commission for final action. BACKGROUND INFORMATION: The Riverside Downtown Station opened in 1993. The facility includes an operations control center housing a centralized closed circuit television (CCTV) surveillance system for all of Riverside County’s Commuter Rail stations. In order to enhance public safety, reduce vandalism, prevent crime, and identify criminal activity, the system monitors a variety of station environments and activities 24 hours a day. The system presently includes 115 cameras distributed among the various station sites. The facility where the CCTV system is housed and monitored is known as the RDNOCC. Agenda Item 10 96 In 1994, Metrolink installed modular crew layover offices at the station. Over the last two decades, the Commission's security surveillance system and Metrolink’s rail operations have expanded and outgrown the capacity of their existing buildings. In response, staff developed a scope for comprehensive assessment of the Commission’s security and surveillance operations. In January 2009, the Commission authorized staff to commission a station/park and ride security plan (security plan) to assess the security, surveillance, facility improvements, future facility design, and development of facility emergency response plans. The security plan recommended relocating video surveillance and security guard operations to a new RDNOCC. At its March 2013 meeting, the Commission reallocated over $1.3 million of surplus Proposition 1B Public Transportation Modernization, Improvement and Service Enhancement Account (PTMISEA) grant funds to construct a new operations control center. A portion of these funds have been allocated for final design and construction management, resulting in a balance available for construction of $932,032. Proposition 1B California Transit Security Grant Program funds (CTSGP) funds allocated in previous SRTPs are also available to fund the new operations control center. On July 8, 2014, the Commission advertised Invitation for Bids (IFB) No. 14-31-149-00 for the construction of the RDNOCC. A public notice was advertised in the Press Enterprise, and the IFB was posted on the Commission’s PlanetBids website, which is accessible through the Commission’s website. Electronic mail messages were sent to vendors registered in the Commission’s PlanetBids database that fit the IFB qualification. Forty-seven firms downloaded the notice to bidders – twelve are located in Riverside County. Eighteen firms purchased the bid documents – seven are located in Riverside County. On August 12, 12 bids were received and publicly opened. A summary of the bids received is shown in Table A: Table A RDNOCC Bid Summary Firm (In order from low bid to high bid) Bid Amount Engineer's Estimate for Construction $1,075,952 1 Avi-Con, Inc. dba CA Construction $1,417,000 (Withdrawn) 2 M. S. Construction Management Group $1,533,891 3 Toby B. Hayward $1,616,334 4 JRH Construction Company, Inc. $1,681,801 5 AMG & Associates, Inc. $1,687,300 6 Dalke & Sons Construction, Inc. $1,688,680 Agenda Item 10 97 7 Woodcliff Corporation $1,696,000 8 Hamel Contracting, Inc. $1,699,181 9 Braughton Construction, Inc. $1,726,049 10 Minako America Corporation $1,768,000 11 Simile Construction Service, Inc. $1,875,500 12 PUB Construction, Inc. $1,878,822 The basis for award for a public works contract is the lowest responsive and responsible bidder as defined by the Commission’s procurement policy and state law. The bid analysis that will determine which bids are responsive and responsible was not completed at the time of writing this staff report; however, the apparent low bidder is M. S. Construction Management Group with a bid amount of $1,533,891. The final result of the bid analysis will be included in the staff report for the September Commission meeting. The construction phase of this project will be funded with a variety of sources, which include $932,032 of Proposition 1B PTMISEA funds, $405,248 of Proposition 1B CTSGP, and $350,000 of TDA STA funds. Of the STA funds, $100,000 can be reprogrammed from the completed Perris Multimodal project, and staff requests that $250,000 be allocated in FY 2014/15 with approval of a corresponding SRTP amendment. The FY 2014/15 budget includes $950,000 for construction expenditures; budget adjustments are required for the additional construction costs as well as the STA funding. Staff recommends award of Agreement No. 14-31-149-00 for the construction of the RDNOCC to the lowest responsible and responsive bidder, M. S. Construction Management Group, pending final bid analysis. Any changes to the recommendation based on the final bid analysis will be reported in the staff report for the September Commission meeting. Construction activity is expected to begin in October 2014 and will be completed in approximately six months. Financial Information In Fiscal Year Budget: Yes No No Year: FY 2014/15 Amount: $950,000 (expenditures) $737,280 (expenditures) $350,000 (revenues) Source of Funds: Proposition 1B PTIMSEA and CTSGP funds, TDA STA funds Budget Adjustment: No Yes Yes (transfer) GL/Project Accounting No.: 004018 81301 265 33 81301 $1,687,280 (expenditures) 004018 000 59001 265 33 59001 $350,000 (transfer in) 002204 97001 241 62 97001 $350,000 (transfer out) Fiscal Procedures Approved: Date: 08/19/2014 Agenda Item 10 98 AGENDA ITEM 11 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 25, 2014 TO: Western Riverside County Programs and Projects Committee FROM: Brian Cunanan, Commuter and Motorist Assistance Manager THROUGH: Robert Yates, Multimodal Services Director SUBJECT: Fiscal Year 2014/15 San Bernardino Associated Governments Agreement for Inland Empire Rideshare and 511 Services STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 14-41-031-00 with the San Bernardino Associated Governments (SANBAG) as part of the Commission’s continuing bi-county partnership with SANBAG to deliver commuter/employer rideshare services and operation of the Inland Empire 511 (IE511) system for FY 2014/15 for an amount not to exceed $1,648,300; 2) Authorize the Chair or 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: Since 1993, SANBAG has contracted with the Commission to develop, implement, and manage a commuter assistance program (CAP) for San Bernardino County commuters. The program consists of several projects: • Rideshare Incentives, developed as a sister incentive project to the Commission’s Measure A commuter incentive project, focuses on encouraging solo drivers to try alternative commute modes; • RidesharePlus, modeled after the Commission’s rideshare rewards program, provides Entertainment discounts to local and national merchants for long-term ridesharers. • Inland Empire Commuter Services (IECS), jointly established by SANBAG and the Commission in FY 1995/96 when it was determined by the two agencies that the Inland Empire would assume direct responsibility for the provision of local employer rideshare services. IECS provides various services to employers in the bi-county area including the provision of marketing promotions, rideshare survey processing, technical assistance, employer network meetings, and newsletters; • Ridematching and Information Services, jointly established in FY 2002/03 by the Commission and SANBAG when they began providing these services directly; Agenda Item 11 99 • IE511, implemented in FY 2009/10 to provide traveler information to Riverside and San Bernardino County commuters; and • IECommuter, which integrates IE511 traveler information and rideshare services to provide commuters with a personalized service, will launch in FY 2014/15. In partnership with SANBAG, a FY 2014/15 work plan and budget for continuation of SANBAG’s CAP and the ongoing maintenance and operation of a 511 travel information services system was developed by Commission staff. The proposed agreement between SANBAG and the Commission has been approved by the SANBAG Board. Staff is seeking Commission approval for an agreement with SANBAG for a total not to exceed amount of $1,648,300 to be reimbursed to the Commission. Financial Information In Fiscal Year Budget: Yes Year: FY 2014/15 Amount: $1,648,300 Source of Funds: SANBAG Budget Adjustment: No GLA No.: 002111/002112/632113/002139/002146/002178/002182/002188/002191 416 41605 0000 263 41 41203 $1,275,500 452124 416 41605 0000 202 45 41203 $372,800 Fiscal Procedures Approved: Date: 08/14/2014 Attachments: FY 2014/15 SANBAG Agreement and Scope of Work Agenda Item 11 100 AGREEMENT C14170 BY AND BETWEEN SAN BERNARDINO COUNTY TRANSPORTATION COMMISSION AND RIVERSIDE COUNTY TRANSPORTATION COMMISSION FOR IMPLEMENTATION OF SAN BERNARDINO COUNTY FISCAL YEAR 2OI4I2OI5 EMPLOYER AND COMMUTER TRIP REDUCTIONruDESHARE PROGRAMS THIS AGREEMENT ("Agreement") is entered into as of the I't day of July 2014 ("Effective Date"), in the State of California by and between SAN BERNARDINO COUNTY TRANSPORTATION COMMISSION, referred to herein as "SANBAG," and the RIVERSIDE COUNTY TRANSPORTATION COMMISSION, referred to herein as "RCTC." WHEREAS, SANBAG approved allocation of Measure I - Valley Traffic Management Systems (VTMS) funds, and Victor Valley Traffic Management Systems funds, and Safe, Accountable, Flexible, Efficient Transportation Equity Act - A Legacy to Users (SAFE-TEA LU) Congestion Mitigation and Air Quality (CMAQ) funds, the allocation of SAFE-TEA LU (initially approved in October of 2005 by SANBAG board), to provide trip reduction services as well as incentives for the commuter programs. WHEREAS, SANBAG receives SAFE-TEA LU and other federal funds and may use these funds to reimburse RCTC for its services in performing Employer and Commuter Trip Reduction/Rideshare Services and RCTC will comply with all applicable federal requirements conceming these federal funds including the Catalog of Domestic Assistance Title No. 20.205. WHEREAS, SANBAG requires professional and consulting services with respect to the provision of commuter services and programs within San Bernardino County. WHEREAS, RCTC has managed the bi-county Inland Empire Commuter Services program since November 3, 1993, and has the expertise and resources necessary to manage such services for SANBAG. WHEREAS, the Code of Federal Regulations encourages grantees and subgrantees of federal funds, such as CMAQ funds, to enter into local intergovernmental agreements for procurement or use of common goods or services. WHEREAS, for the avoidance of doubt, the parties to this Agreement acknowledge and agree that RCTC is not a subrecipient of federal funds from SANBAG, but is entering into a local intergovernmental agreement with SANBAG for procurement or use of common goods or services. CT4T7O Page t of t7 101 WHEREAS, RCTC will own andlor operate web based software ("Software") implementing the Employer and Commuter Trip ReductionRideshare Services. WHEREAS, SANBAG will designate approved key personnel requiring access to the Software to receive log-in information for the Software from RCTC WHEREAS, SANBAG will protect the confidential information received or accessible through the Software and will obtain and provide to RCTC non-disclosure and confidentiality agreements with its approved key personnel designated to receive access to the Software. NOW, THEREFORE, the parties agree as follows: A. Contract Services. 1. RCTC will administer, market, and implement commuter services and 511 programs in coordination with RCTC's commuter services program and in coordination with the regional ridesharing core services program in compliance with and as specified in the scope of work, Attachment'0A," attached hereto and incorporated herein by reference (the "Services"). 2. RCTC shall provide program administration and oversight and assure that its consultants and/or staff performs its services within the budgets set forth in the scope of work, Attachment "A." 3. RCTC shall provide SANBAG with the following reports, on a monthly or quarterly basis, as set forth below, relative to tasks identified in the scope of work, Attachment'0A", to this Agreement: (a) Quarterly Commuter Assistance Report (b) Quarterly Commuter Assistance Activity Master Report (c) Quarterly Regional Database Report (d) Monthly IE5l l All Hands Meeting Minutes/Agenda/Stats 4. RCTC will notify and work collaboratively with SANBAG regarding any possible program changes that would impact the Services. 5. SANBAG shall timely respond to RCTC on matters requiring RCTC to coordinate with SANBAG, as set forth in Attachment "A". B. Compensation. 1. It is understood that SANBAG funding for the program under this Agreement will not exceed one million six hundred forty-eight thousand three hundred dollars, and no cents ($1,648,300.00) and is being provided from the following sources: (a) One million four hundred seventy-nine thousand twenty CT4T7O Page 2 of L7 102 dollars and no cents ($1,479,020) from CMAQ funds, and (b) One hundred sixty-nine thousand two hundred eighty dollars and no cents ($169,280) from San Bernardino County local t/, cent sales tax, Measure I- Valley Funds (Measure I Funds). 2. SANBAG receives SAFETEA-LU and other federal funds and may use these funds to reimburse RCTC for its costs in performing the Services. 3. It is agreed that SANBAG Measure I Funds will reimburse RCTC for the cost of purchasing any items not reimbursable by CMAQ, and invoices submitted to SANBAG shall clearly delineate CMAQ non-reimbursable expenditures. It is agreed that in the event sufficient funds from the sources set forth in (a) and (b) above do not become available to SANBAG for this Agreement, SANBAG may immediately terminate this Agreement with written notice, but shall pay to RCTC from other sources any amounts required to cover RCTC's costs to the date of Aereement termination. 4. SANBAG shall pay RCTC on a cost-reimbursement basis, based upon invoices which delineate charges based on tasks identified in the scope of work, Attachment "A." All invoices shall be provided to SANBAG no more frequently than on a bi-monthly basis and no less than a quarterly basis. All invoices will be delivered to and received by SANBAG no later than 60 days after the end of the calendar year quarter. 5. SANBAG shall be fully responsible for obtaining cost reimbursements of CMAQ funds. SANBAG shall ensure that the SAFE-TEA LU funds are used for authorized purposes in compliance with laws, regulations, and the provision of the terms in this agreement, and that performance goals are achieved. 6. SANBAG shall review all billings submitted by RCTC for accuracy and process payment based thereon to RCTC in a timely manner. 7. RCTC shall maintain during the term of this Agreement and for three years thereafter accounting records which cover the receipt and disbursement of all funds provided for the programs administered and implemented under this Agreement. Such records shall be made available for inspection during normal business hours by duly authorized representatives of SANBAG, SANBAG's auditors, Caltrans, Federal Highway Administration, and the United States Department of Transportation, so that SANBAG can comply with the Single Audit Act and OMB Circular No. 4'-133. In addition, the federal provisions set forth in Attachment "C" shall apply to this Agreement. Term. 1. This Agreement shall commence on July 1,2014, and terminate on June 30, 2015, unless it is extended by a written amendment approved by the parties. C. CT4I7O Page 3 of 17 103 2. Either party may terminate this Agreement by giving thiny (30) days written notice to the other for no or any reason, including, but not limited to, changes in legislation, rules and regulations impacting trip reduction programs. SANBAG shall pay for any service provided up to the effective date of the termination. 3. The Executive Directors of both RCTC and SANBAG shall have the authority in their sole discretion to give notice of termination on behalf of their respective asencies. D.Indemnification and Insurance. l. (a) It is understood and agreed that neither RCTC nor any officer, official, employee, director, consultant, agent, or volunteer thereof is responsible for any damage or liability occurring by reasons of anything done or omitted to be done by SANBAG under or in connection with any work authority or jurisdiction delegated to SANBAG under this Agreement. It is understood and agreed that, pursuant to Govemment Code Section 895.4, SANBAG shall fully defend, indemnify and save harmless RCTC, and all its officers, employees, consultants and agents from all claims, suits or actions of every name, kind, and description brought for or on account of injury (as defined in Govemment Code Section 810.8) occurring by reason of anything done or omitted to be done by SANBAG under or in connection with any work, authority or jurisdiction delegated to SANBAG under this Agreement. (b) It is understood and agreed that neither SANBAG nor any officer, official, employee, director, consultant, agent, or volunteer thereof is responsible for any damage or liability occurring by reasons of anything done or omitted to be done by RCTC under or in connection with any work authority or jurisdiction delegated to RCTC under this Agreement. It is understood and agreed that, pursuant to Government Code Section 895.4, RCTC shall fully defend, indemnify and save harmless SANBAG, and all its officers, employees, consultants and agents from all claims, suits or actions of every narne, 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 RCTC or its consultants under or in connection with any work, authority or jurisdiction delegated to RCTC under this Agreement. 2. Insurance Requirements Without anyway affecting the indemnity provisions identified in this Contract, RCTC shall, at RCTC's sole expense, and prior to the commencement of any work, procure and maintain in full force, insurance through the entire term of this Agreement and shall be written with at least the following limits of liability: (a) Professional Liability - Shall be provided in an amount not less than $1,000,000, per claim and $2,000,000 in the aggregate. RCTC shall secure and maintain this insurance or "tail" coverage provided throughout the term of this Contract and for a minimum of three (3) years after Contract completion. CL4T7O Page 4 of 17 104 (b) Workers'Compensation - Worker's Compensation insurance shall be provided in an amount and form to meet all applicable requirements of the Labor Code of the State of Califomia, including Employers Liability with $250,000 limits, covering all persons providing services on behalf of RCTC and all risks to such persons under this Agreement. (c) Commercial General Liabilitv - To include coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, Broad-Form Property Damage and Independent Contractors' Liability, in an amount of not less than $1,000,000 per occurence, combined single limit, and $2,000,000 in the aggregate written on an occuffence form. For products and completed operations a $2,000,000 aggregate shall be provided. (d) Automobile Liability - To include owned, non-owned and hired automobiles, in an amount of not less than $1,000,000 per occunence, combined single limit, and in the aggregate written on an occrurence form. (e) Network and Privacy Insurance. RCTC shall carry, or shall cause its third party subcontractors to carry, Network and Privacy (Errors and Omissions) insurance in an amount of not less than $1,000,000 per claim and $1,000,000 in the annual aggregate, protecting RCTC and SANBAG from the following exposures relating to RCTC's or any of its subcontractors performance under the Agreement: (i) the theft, dissemination and/or unauthorized disclosure of use of confidential information and personally identifiable information (not to be limited bank information, social security numbers, health information, credit card account information, and confidential corporate information). Such insurance shall also include coverage for credit monitoring, notification expenses and other related costs associated with mitigating a data security or privacy breach; and (ii) the introduction of a computer virus into, or otherwise causing damage to, a computer, computer system, network or similar computer-related property and the data, software, and programs used herein. If such insurance is maintained on an occurrence basis, RCTC or its third party subcontractors shall maintain such insurance for an additional period of one year following the end of the applicable Term. If such insurance is maintained on a claims-made basis, RCTC or its third party subcontractor shall maintain such insurance for an additional period of three years following the end of the applicable Term. (f; Proof of Coveraee - RCTC shall furnish certificates of insurance to SANBAG evidencing the insurance coverage required above, prior to the commencement of performance of services hereunder, and such certificates shall include San Bernardino Associated Governments and San Bernardino County Transportation Commission) as additional insureds on CT4T7O Page 5 of !7 105 insurance. Prior to commencing any work, RCTC shall fumish SANBAG with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements set forth in this Article. If the insurance company elects to cancel or non-renew coverage for any reason, RCTC will provide SANBAG 30 days' notice of such cancellation or nonrenewal. If the policy is cancelled for nonpayment of premium, the RCTC will provide SANBAG ten (10) days' notice. RCTC shall maintain such insurance from the time RCTC commences performance of services hereunder until the completion of such Services. All certificates of insurance are to include the contract number and Project Manager's name. (g) Additional Insured- All policies, except for Workers Compensation and Professional Liability policies, shall contain endorsements naming San Bemardino Associated Governments and San Bemardino Country Transportation Commission and their officers, employees, agents, and volunteers as additional insureds with respect to liabilities arising out to the performance of Services hereunder. The additional insured endorsements shall not limit the scope of coverage for SANBAG to vicarious liability but shall allow coverage for SANBAG to the full extent provided by the policy. (h) Waiver of Subrogation Rights - RCTC shall require the carriers of the above required coverages to waive all rights of subrogation against SANBAG, its officers, employees, agents, volunteers, contractors, and subcontractors. All general auto liability insurance coverage provided shall not prohibit RCTC or CONSULTANT'S employees or agents from waiving the right of subrogation prior to a loss or claim. RCTC hereby waives all rights of subrogation against SANBAG. (D All policies required herein are to be primary and non-contributory with any insurance carried or administered by SANBAG. O Certifi cates/Insurer Rating/Cancellation Notice. (1) RCTC shall maintain and shall require its consultants to maintain such insurance from the time the Services commence until the Services are completed, except as may be otherwise required by this Section. (2) RCTC may legally self-insure, but shall require its consultants to place insurance with insurers having an A.M. Best Company rating of no less than A:VIII and licensed to do business in Califomia. (3) RCTC and its consultants shall replace certificates, policies and endorsements for any insurance expiring prior to completion of the Services. E. Rights of SANBAG and RCTC. The Executive Directors respective entities' rights cr4L70 of both SANBAG and RCTC shall have full authority to exercise their under this Agreement. Page 6 of 17 106 F. Ownership of Materials/Confidentiality/Use of Data. 1. Ownership. The following documents and data prepared by RCTC or RCTC's subconsultant pursuant to this Agreement shall become the common property of RCTC and SANBAG: (i) data regarding commuters in San Bernardino County; (ii) San Bernardino County employer information; (iii) park and ride information specific to San Bernardino County; (iv) any monthly or quarterly reports produced by RCTC as required by this Agreement; and (v) advertisements and collateral material funded in whole or in part by SANBAG under this Agreement ("Documents and Data"). RCTC and SANBAG shall not be limited in any way in its use of such data at any time, provided that any such use not within the purposes intended by this Agreement shall be at the respective party's sole risk and provided that the other party shall be indemnified against any damages resulting from such use, including the release of this material to third parties for a use not intended by this Agreement. Neither party to this Agreement shall sell the data or other materials prepared under this Agreement without the written permission of both parties. 2. Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other materials described in subsection (1.) either created by or provided to RCTC in connection with the performance of this Agreement shall be held confidential by RCTC. Such materials shall not, without the prior written consent of SANBAG, be used by RCTC 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. Nothing fumished to RCTC that is otherwise known to RCTC or is generally known, or has become known, to the related industry shall be deemed confidential. RCTC shall not use SANBAG's name or insignia, photographs of the project, or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of SANBAG. 3. Use of Data. All Documents and Data, as defined above, shall be provided to SANBAG in hard copy and electronic media. Documents and Data in electronic media shall be provided in a form that will allow SANBAG to use, access, and manipulate the data to prepare reports and perform other ride matching activities contemplated by this Agreement. All Documents and Data shall be provided to SANBAG within 30 days upon written notice. G.C onfi dential InformationA.{on-D i sclo sure. 1. Confidential Information. "Confidential Information" shall include: all user names, passwords, or other log-in credentials used, provided, or accessible in connection with the Software; all data or information accessible in connection with the Software; all source code, work product, proprietary information, server logs, technical information, trade secrets, and proprietary systems related to the Software; all personal information of Employer and Commuter Trip Reduction/Rideshare Programs participants, including but not limited to a participant's residence address, employment address or hours of employment for the purpose of cr4r70 Page 7 of 17 107 assisting private entities in the establishment or implementation of carpooling or ridesharing programs as required by California Penal Code Section 637, as well as names, biographical information, demographic information, use data, contact information, or similar personal information of participants; and any and all data, content, materials, documents and/or other information related to the Software and/or the Employer and Commuter Trip Reduction Rideshare Services designated, from time to time, in writing by RCTC as Confidential Information. 2. Non-Disclosure. Notwithstanding any other provisions of this Agreement, SANBAG shall hold the Confidential Information in confidence, shall take reasonable precaution to protect and keep the Confidential Information confidential, shall not disclose the Confidential Information to any person or party not specifically authorized in writing by RCTC to receive the Confidential Information, and shall not use the Confidential Information for any purpose other than as necessary to operate the Employer and Commuter Trip Reduction/Rideshare Services. Further, SANBAG shall not disclose a particpant's personal information, including but not limited to a participant's residence address, employment address or hours of employment for the purpose of assisting private entities in the establishment or implementation of carpooling or ridesharing programs, to any other person or use such information for purposes other than as necessary to operate the Employer and Commuter Trip Reduction/Rideshare Services, without the prior written consent of the participant, as required by California Penal Code section 637. SANBAG shall limit access to the Confidential Information only to individuals who are directly involved in operation of the Employer and Commuter Trip Reduction/Rideshare Services and further provided that such individuals are legally bound to maintain the confidentiality of the Confidential Information on substantially the same terms as set forth herein. The foregoing restrictions on disclosure shall not apply to Confidential Information which is (a) already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by recipient from a third party without a restriction on disclosure or use, or (d) independently developed by recipient without reference to the other party' s Confi dential Information. 3. Expiration. Immediately upon (a) the expiration or termination of this Agreement, or (b) a request by RCTC, SANBAG shall tum over to RCTC all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof, except that SANBAG legal counsel may retain one copy of all Confidential Information in its office solely for archival legal purposes. 4. Key Personnel. SANBAG shall designate key personnel ("Key Personnel") requiring web based access to the Software for the operation of the Employer and Commuter Trip Reduction/Rideshare Services, to receive from RCTC log-in information enabling access to the Software. Key Personnel shall use the log-in information provided by RCTC and all Confidential Information only and strictly for the operation of the Employer and Commuter Trip Reduction/Rideshare Services and shall not disclose or share such log-in information, or any other Confidential Information, with any party, whether or not employed or cr4L70 Page 8 of 17 108 in any way associated with SANBAG, who has not been specifically approved in writing by RCTC to receive such log-in information or other Confidential Information. 5. Non-Disclosure and Confidentiality Agreement. To protect RCTC's Confidential Information, SANBAG shall require each Key Personnel to execute a Non- Disclosure and Confidentiality Agreement substantially in the form of Attachment "B" attached hereto and incorporated by this reference. SANBAG shall provide RCTC a signed Non- Disclosure and Confidentiality Agreement for each Key Personnel designated below or designated from time-to-time by SANBAG's Executive Director or his designee prior to RCTC's disclosure of any log-in information or other Confidential Information to such Key Personnel. SANBAG hereby designates the following individuals as Key Personnel requiring web based access to the Software for the operation of the Employer and Commuter Trip Reduction/Rideshare Pro grams : 6. This Paragraph G and all of its subparagraphs shall survive expiration or termination of the Agreement. H. Independent Contractor. SANBAG retains RCTC on an independent contractor basis and RCTC and its subconsultants shall not be employees of SANBAG. The subconsultants and other personnel performing the Services under this Agreement on behalf of RCTC shall at all times be under RCTC's exclusive direction and control. RCTC shall pay all wages, salaries, and other amounts due its employees in connection with their performance of Services under this Agreement and as required by law. RCTC shall be responsible for all reports and obligations respecting such employees, including, but not limited to, social security taxes, income tax withholding, unemployment insurance, and workers'compensation insurance. I. Attorneys' Fees and Costs. If any legal action is instituted to enforce or declare any party's rights hereunder, each party, including the prevailing party, must bear its own costs and attorneys' fees. This paragraph shall not apply to those costs and attorneys' fees directly arising from any third party legal action against a party hereto and payable under Paragraph D, Indemnifi cation and Insurance. J. Consent. Whenever consent or approval of any party is required under this Agreement, that party shall not unreasonably withhold nor delay such consent or approval. K. Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated by reference as though fully set forth herein. [Signatures on following page] cr4r70 Page 9 of 17 109 SIGNATURE PAGE TO AGREEMENT C14170 FOR IMPLEMENTATION OF SAN BERNARDINO COUNTY FISCAL YEAR 2OI4I2OI5 EMPLOYER AND COMMUTER TRIP REDUCTION/RIDESHARE PROGRAMS IN WITNESS THEREOF, THE AUTHORIZED PARTIES HAVE SIGNED AND EXECUTED THE AGREEMENT BELOW: SAN BERNARDINO COUNTY TRANSPORTATION COMMISSION L. Dennis Michael. President APPROVED AS TO LEGAL FORM Eileen Monaghan Teichaft, SANBAG Counsel CONCIJRRENCE: Jeffery Hill C ontr act Admini strator RIVERSIDE COUNTY TRANSPORTATION COMMISSION Marion Ashl.y, Chair APPROVED AS TO LEGAL FORM Best, Best & Krieger, LLP, General Counsel o -d . cr4L70 Page 70 of L7 110 Attachment K A )) Scope of Work San Bernardino Employer and Commuter Assistance Programs Fiscal Year 2014-15 Inland Empire Rideshare Services Provide a vaiety of services to employers and commuters, who participate in trip reduction activities. Activities shall include, but not be limited to: RideGuide/survey services, employer technical assistance, promotions, RideGuide production, coordination/dissemination of surveys and resulting report analysis for target marketing, Rideshare Connection broadcast e-mails, eNewsletters, networking meetings and coordination with other rideshare agencies and service providers. Assist multi-site and multi-jurisdictional headquarters employers within the County as well as related worksites outside of the County. Oversee and maintain the IE51 1.org website, social media platforms, and other regional products/outreach as assigned. Respond and coordinate inquiries with SANBAG that are San Bemardino specific and generated from 511, 1- 866-RIDESHARE as well as direct referrals. Oversee and maintain an Inland Empire focussed database of commuters with SANBAG owning all Documents and Data (hard copy and electronic formats), as that term is defined in Section F(1) of the Agreement. Market the regional Guaranteed Ride Home Program to employers in San Bernardino County. Assist in the County's leased Park and Ride lot program. Operate the 5ll program through phone and web services, providing enhancements, resolving issues, conducting marketing and periodic surveys. RCTC is to keep SANBAG advised regarding potential enhancements, issues, and periodic surveys if such tasks could potentially change/alter the current Rideshare and/or 5l I programs in San Bemardino County. Conduct special projects and studies, as assigned, and coordinate/inform SANBAG rideshare staff if special projects and/or studies impact the San Bemardino Rideshare Program. Related Expenses ($1.054.500): Includes labor, office expenses, marketing materials, office equipment, computer programming, telephone and other direct expenses. Goals: 1. Implementation of commuter assistance programs to approximately 360 regulated and non-regulated employer worksites in San Bernardino County, to assist in the development and implementation of trip reduction programs and for technical assistance. 2. Work with 85 employers on AVR/Transportation surveys and AVR calculations. 3. Maintain an accurate database of 50,000 active San Bernardino County commuter registrants, resulting from completed commuter surveys at 85 San Bernardino County employers. 4. Disseminate 6,300 RideGuides to San Bernardino County commuters at360 worksites. 5. Provide assistance to five multisite/multijurisdictional headquarters located in San Bernardino County representing 34 worksites in San Bemardino, Riverside, as well as Los Angeles and Orange counties. 6. Develop and implement three employer transportation network meetings, one promotional marketing campaign at San Bernardino employer worksites, and other events. cr4r70 Page II of 17 111 7.Produce and disseminate other regional marketing materials, as standalone campaigns within the Inland Empire or regional campaigns in coordination with the five CTCs. Broadcast 12 Rideshare Connection e-mails to San Bernardino County employers. For the two-county area, respond to 2,000 inquires/calls from commuters who work or reside in San Bernardino or Riverside counties, via 1-866-RIDESHARE, 511, direct referrals and other internet sources. Of these 2,000 inquiries, 200 RideGuides will be generated. In addition, 575 Inland residents will register in the database via the www.ieSl l.or:q website. SANBAG will be copied on responses that are specific to San Bemardino County. 10. Manage and operate the 51 1 system which will be available to commuters 24 hours a day,7 days per week, 365 days per year. 1 1. The 5l I phone system will provide assistance to 25,000 callers per month throughout the year. The system will have the capacity to handle 100,000 concurrent callers. 12.The www.ieSl 1.org website will potentially receive 40,000 unique visitors per month . Website will be able to handle 100,000 concurrent users. 13. Continue 511 marketing/outreach and coordinating development of the marketing plan, campaign themes, surveys, studies and potential collateral materials for San Bemardino County with SANBAG rideshare staff before the tasks are implemented. 14. Conduct and coordinate periodic suweys with SANBAG to determine the 511 program use, effectiveness and customer satisfaction. 15. Provide IE511 website, phone, and mobile application enhancements/upgrades as needed. Rideshare Incentive Programs The SANBAG $2/day Rideshare Incentive offers San Bemardino County residents who commute to work, up to $2 a day (in gift cards) for each day they participate in a rideshare mode, during a three-month period. The Vanpool Incentive Program provides up to $1,800 over nine months in discounted vanpool fares. The SANBAG RidesharePlus program provides ongoing ridesharers who reside in San Bernardino County a Rideshare Plus Rewards Book with discounts to local merchants plus 135,000 additional discounts available online. RCTC to manage and operate the Incentive Programs listed above, and to coordinate and discuss with SANBAG when potential changes to the Incentive Programs are being considered. Related Exnenses ($593.800): Includes labor, office expenses, marketing materials, offtce equipment, programming, telephone, direct commuter incentives (gift cards/ subsidies) and other direct expenses. Goals: 1. The SANBAG $2/day Rideshare Incentive program will enlist 1,200 County residents, who commute to work to 125 employers in Southern California. These participants on average have a one-way commute distance of 27.59 miles and the goal is to reduce 109,000 one way vehicle trips from the roadways. 2. The SANBAG RidesharePlus program will consist of 6,100 members when the program is at its highest membership. Members will work at employment sites from 350 employers throughout Southern Califomia. 8. 9. CI4I7O Page 12 of 17 112 Attachment,.B" NON.DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Non-Disclosure and Confidentiality Agreement is entered into as of _, 2014, by and between SAN BERNARDINO COUNTY TRANSPORTATION COMMISSION ("SANBAG") and the undersigned interested party ("Interested Party"). SANBAG and Interested Party shall individually be referred to as a"Party" or collectively as the "Parties". l.RECITALS 1.1 WHEREAS, SANBAG and the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("RCTC") entered into that certain Implementation of San Bemardino County Fiscal Year 201312014 Employer and Commuter Trip Reduction/Rideshare Programs Agreement dated July 1, 2013 ("Agreement"). I.2 WHEREAS, in the Agreement, SANBAG has designated approved key personnel requiring access to the web based software ("Software") implementing the Employer and Commuter Trip Reduction/Rideshare Programs to receive log-in information for the Software. 1.3 WHEREAS, in the Agreement, SANBAG has agreed to protect the personal information accessible through the Software of public participants in the Employer and Commuter Trip Reduction/Rideshare Programs, and has agreed to obtain non-disclosure and confidentiality agreements with all approved key personnel receiving access to the Software. 1.4 WHEREAS, SANBAG has designated Interested Party as a Key Personnel to receive Confidential Information, as those terms are defined in Agreement, and Interested Party desires to receive and protect the Confidential Information upon the terms and conditions set forth herein. 2.TERMS 2.1 Confidential Information. "Confidential Information" shall include: all user names, passwords, or other log-in credentials used, provided, or accessible in connection with the Software; all data or information accessible in connection with the Software; all source code, work product, proprietary information, server logs, technical information, trade secrets, and proprietary systems related to the Software; all market research, financial data, operating procedures, and third party confidential and proprietary information; all personal information of Employer and Commuter Trip Reduction/Rideshare Programs participants, including but not limited a participants residence address, employment address or hours of employment for the purpose of assisting private entities in the establishment or implementation of carpooling or ridesharing programs as required by California Penal Code section 637, as well as names, biographical information, demographic information, use data, contact information, or similar personal information of participants; and any and all data, content, materials, documents and/or other information related to the Software and/or Employer and Commuter Trip cL4L70 Page 13 of 17 113 Reduction/Rideshare Programs designated, from time to time, by RCTC as confidential information. 2.2 Interested Party shall hold the Confidential Information in confidence, shall take reasonable precaution to protect and keep the Confidential Information confidential, shall not disclose the Confidential Information to any person or party not specifically authorized in writing by RCTC to receive the Confidential Information, and shall not use the Confidential Information for any purpose other than as necessary to operate the Employer and Commuter Trip Reduction/Rideshare Programs. Further, Interested Party shall not disclose a participant's personal information, including but not limited to a participant's residence address, employment address or hours of employment for the purpose of assisting private entities in the establishment or implementation of carpooling or ridesharing programs, to any other person or use such information for purpose other than as necessary to operate the Employer and Commuter Trip Reduction/Rideshare Programs without the prior written consent of the participant as required by California Penal Code section 637. Interested Party shall limit access to the Confidential Information only to individuals who are directly involved in operation of the Employer and Commuter Trip Reduction/Rideshare Programs and fuither provided that such individuals are legally bound to maintain the confidentiality of the Confidential Information on substantially the same terms as set forth herein. The foregoing restrictions on disclosure shall not apply to Confidential Information which is (a) already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by recipient from a third party without a restriction on disclosure or use, or (d) independently developed by recipient without reference to the other party's Confidential Information. 2.3 Immediately upon (i) the expiration or termination of Interested Party's employment or association with SANBAG, (ii) the expiration or termination of the Agreement, or (iii) a request by RCTC, Interested Party shall tum over to RCTC all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof. 2.4 RCTC is an express third party beneficiary of this Non-Disclosure and Confi dentiality Agreement. -----......SIGNATURES ON FOLLOWING PAGE cr4L70 Page 14 of 17 114 IN WITI\iESS WHEREOX', the parties hereto have executed this Non-Disclosure and Confidentiality Agreement on the date first written above. SAN BERNARDINO COUNTY TRANSPORTATION COMMISSION INTERESTED PARTY By: Executive Director By: Name: Title: cL4L70 Page L5 of L7 115 A. Attachment $C)) Federal Flow Down Provisions ARTICLE I -- FISCAL PROVISIONS The Cost Principles and Procedures set forth in 48 CFR Ch. 1, Subch. E, Part 31, as constituted on the effective date of this Contract shall be utilized to determine allowability of costs under this Contract and may be modified from time to time by written amendment of the Contract. B. RCTC agrees to comply with Federal Department of Transportation procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. C. Any costs for which payment has been made to RCTC that are determined by subsequent audit to be unallowed under 48 CFR, Ch.l, Subch E, Part 31, Contract Cost Principles and Procedures, or 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments shall be repaid by RCTC to Agency. SANBAG shall then repay RCTC for such costs, if such costs are for the Services, using local funds. ARTICLE II - AUDITS, THIRD PARTY CONTRACTING, RECORDS RETENTION AND REPORTS RCTC agrees that any and all subcontractors of RCTC performing Work under this Agreement will comply with the terms and conditions of this Agreement applicable to the portion of Work performed by them. CONSULTANT shall incorporate the following applicable provisions of this Agreement into their subcontracts regardless of the tier: Article I -- Fiscal Provisions, and this Article II -- Audits, Third Party Contracting, Records Retention and Reports. RCTC shall provide SANBAG, or authorized representatives or agents of SANBAG, including but not limited to Caltrans, Federal Transit Administration (FTA) or Federal Highway Administration (FHWA), access to CONSULTANT's records that are directly related to this Agreement for the purpose of inspection, auditing or copying. RCTC shall maintain all records related to this Agreement in an organizedway in the original format, electronic and hard copy, conducive to professional review and audit, for a period of three (3) years from the date of final payment by SANBAG, except in the event of litigation or settlement of claims arising out of this Agreement in which case RCTC agrees to maintain records through the conclusion of all such litigation, appeals or claims related to this Agreement. RCTC further agrees to maintain separate records for costs of work performed by amendment. RCTC shall allow SANBAG, Caltrans, FHWA, FTA or any duly authorized agents to reproduce any materials as reasonably necessary. A. B. CT4L7O Page 16 of 17 116 D.The cost proposal and/or invoices for this Agreement are subject to audit by SANBAG and/or any state or federal agency funding this Project at any time. After RCTC receives any audit recommendations, the cost proposal shall be adjusted by RCTC and approved by SANBAG's Project Manager to conform to the audit recommendations. RCTC agrees that individual items of cost identified in the audit report may be incorporated into the Agreement at SANBAG's sole discretion. Refusal by RCTC to incorporate the audit or post award recommendations will be considered a breach of the Agreement and cause for termination of the Agreement. Any dispute concerning the audit hndings of this Agreement shall be reviewed by SANBAG's Chief Financial Officer. RCTC may request a review by submitting the request in writing to SANBAG within thirty (30) calendar days after issuance of the audit report. SANBAG shall pay all costs related to the audit. Further, a breach under this clause shall not imply any wrongdoing by RCTC. SANBAG shall pay RCTC for work completed up to the date of termination if such costs are for the Services. As determined necessary by SANBAG, such payment will be made using local funds. RCTC agrees that RCTC's 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. ARTICLE III. EQUAL EMPLOYMENT OPPORTUNITY During the term of this Agreement, RCTC shall not willfully discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, medical condition, gender, marital status, sexual orientation, age, political affiliation or disability. RCTC agrees to comply with the provisions of Executive Orders 11246,11375,11625, 12138, 12432, 12250, Title VII of the Civil Rights Act of 1964, the California Fair Employment Practices Act and other applicable Federal, State and County laws and regulations and policies relating to equal employment and contracting opportunities, including laws and regulations hereafter enacted. ARTICLE IV. GENERAL A. Subcontracts must include provisions for terminating the subcontract for cause or convenience by SANBAG. SANBAG's own preferred language may be used. B. Subcontracts must include administrative, contractual or legal remedies in instances of the subcontractor violating or breaching the Agreement terms. ARTICLE V. COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT RCTC shall comply with all applicable provisions of the Americans With Disabilities Act in performing Work under this Agreement. E. cI4L70 Page 17 of L7 117