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Home My Public Portal About09 September 28, 2015 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, September 28, 2015 LOCATION: BOARD ROOM County of Riverside Administrative Center 4080 Lemon Street, First Floor, Riverside  COMMITTEE MEMBERS  Ben Benoit, Chair / Timothy Walker, City of Wildomar Deborah Franklin, Vice Chair / Art Welch, City of Banning Karen Spiegel / Eugene Montanez, City of Corona Adam Rush / Clint Lorimore, City of Eastvale Frank Johnston / Brian Berkson, City of Jurupa Valley Scott Mann / To Be Appointed, City of Menifee Jesse Molina / Jeffrey J. Giba, City of Moreno Valley Berwin Hanna / Kathy Azevedo, City of Norco Daryl Busch / Rita Rogers, 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-00027 Alexandra Rackerby From: Sent: To: Subject: Attachments: Importance: Alexandra Rackerby Wednesday, September 23, 2015 11 :37 AM Alexandra Rackerby RCTC Western Riverside County Programs and Projects Committee Conflict of Interest Form.pdf; Conflict of Interest Memo.pdf High Good Afternoon Commissioners, The Western Riverside County Programs and Projects Committee agenda for Monday, September 28, 2015 is posted on our website at http://www.rctc.org/uploads/media items/western-riverside-county-programs-and-projects-committee- september-28-2015.original.pdf Also, attached is the Conflict of Interest Memo and Form for your information. Let me know if you have any questions or concerns. Thank you. Respectfully, Allie Rackerby Riverside County Transportation Commission P.O. Box 12008 Riverside, CA 92502 (951)787-7141 1 RCTC ._ ........ -------- Riverside County Transportation Commission TO: FROM: DATE: SUBJECT: Riverside County Transportation Commission Jennifer Harmon, Clerk of the Board September 23, 2015 Possible Conflicts of Interest Issues -Western Riverside County Programs and Projects Committee Agenda of September 28, 2015 The September 28, 2015 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. 9 -Agreements for On-Call Right of Way Support Services Consultant(s): Bender Rosenthal, Inc. Bob Morrison, President 4400 Auburn Boulevard, Suite 102 Sacramento, CA 95841 Epic Land Solutions, Inc. Holly Rockwell, President 2601 Airport Drive, Suite 115 Torrance, CA 90505 Overland, Pacific and Cutler, Inc. Joey Mendoza, Principal/Managing Director of Transportation 3750 Schaufele Avenue, Suite 150 Long Beach, CA 90808 Agenda Item No. 10 -Agreement for Station Electrical Services Consultant(s): Elite Electric Inc. Carl Dawson 9415 Bellegrave Avenue Riverside, CA 92509 Agenda Item No. 11 -Agreement for Commuter Rail Station Vending Services Consultant(s): First Class Vending, Inc. Matthew Marsh 6875 Suva Street Bell Gardens, CA 90201 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, September 28, 2015 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, Government Code Section 54954.2, and the Federal Transit Administration Title VI, please contact the Clerk of the Board at (951) 787-7141 if special assistance is needed to participate in a Commission meeting, including accessibility and translation services. Assistance is provided free of charge. Notification of at least 48 hours prior to the meeting time will assist staff in assuring reasonable arrangements can be made to provide assistance at the meeting. 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. ATTENDANCE / 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 September 28, 2015 Page 2 5. APPROVAL OF MINUTES – APRIL 27, 2015 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. COMPENSATORY MITIGATION AGREEMENT WITH INLAND EMPIRE RESOURCE CONSERVATION DISTRICT AND COOPERATIVE AGREEMENT WITH THE CALIFORNIA DEPARTMENT OF PARKS AND RECREATION FOR THE STATE ROUTE 91 CORRIDOR IMPROVEMENT PROJECT Page 1 Overview This item is for the Committee to: 1) Approve Agreement No. 16-31-023-00 with the Inland Empire Resource Conservation District (IERCD) for compensatory mitigation (Coastal Sage Scrub Restoration) in an amount not to exceed $1,241,459; 2) Approve Agreement No. 16-31-024-00 with California Department of Parks and Recreation for maintaining Coastal Sage Scrub Restoration in perpetuity in an amount not to exceed $289,342; 3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements on behalf of the Commission; and 4) Forward to the Commission for final action. 8. 91 EXPRESS LANES RIVERSIDE ORANGE FACILITY AGREEMENT Page 25 Overview This item is for the Committee to: 1) Approve the 91 Express Lanes Riverside Orange Facility Agreement (ROFA), Agreement No. 16-31-025-00, with the Orange County Transportation Authority (OCTA) for the Anaheim Toll Operations Center in the amount of $421,242 for tenant improvements, $237,055 for rent through January 31, 2018, and a contingency amount of $32,915, for a total amount not to exceed $691,212; 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, or designee, to approve contingency work up to the total amount not to exceed as required; and 4) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee September 28, 2015 Page 3 9. AGREEMENTS FOR ON-CALL RIGHT OF WAY SUPPORT SERVICES Page 80 Overview This item is for the Committee to: 1) Award the following agreements to provide on-call right of way appraisal review services for a three-year term, in an amount not to exceed an aggregate value of $2 million; a) Agreement No. 16-31-001-00 with Bender Rosenthal, Inc.; b) Agreement No. 16-31-018-00 with Epic Land Solutions, Inc.; and c) Agreement No. 16-31-019-00 with Overland, Pacific & Cutler, Inc.; 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, or designee, to execute task orders awarded to contractors under the terms of the agreements; and 4) Forward to the Commission for final action. 10. AGREEMENT FOR STATION ELECTRICAL SERVICES Page 107 Overview This item is for the Committee to: 1) Award Agreement No. 16-24-005-00 to Elite Electric, Inc. for the provision of station electrical maintenance services and capital improvements, for a three-year term, plus two two-year options to extend the agreement, in an amount of $603,700 for maintenance and repairs, and $935,000 for capital improvements, plus a contingency of $153,870 for a total amount not to exceed $1,692,570; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement, including option years, on behalf of the Commission; 3) Authorize the Executive Director, or designee, to execute task orders awarded to the contractor under the terms of the agreements; 4) Authorize the Executive Director, or designee, to approve contingency work up to the total amount not to exceed as required for these services; and 5) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee September 28, 2015 Page 4 11. AGREEMENT FOR COMMUTER RAIL STATION VENDING SERVICES Page 128 Overview This item is for the Committee to: 1) Award Agreement No. 16-24-007-00 to First Class Vending, Inc. for the provision of commuter rail station vending services, a receivable-based agreement for a term of five-years, plus one five-year option to extend the agreement; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement, including option years, on behalf of the Commission; and 3) Forward to the Commission for final action. 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, October 26, 2015, Board Chambers, First Floor, County Administrative Center, 4080 Lemon Street, Riverside. RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE ROLL CALL September 28, 2015 Present County of Riverside, District I County of Riverside, District V City of Banning City of Corona City of Eastvale City of Jurupa Valley City of Menifee City of Moreno Valley City of Norco City of Perris City of San Jacinto City of Wildomar } ~ .)l!!J' ~ ~ $ D D Absent D D D D D D D D D D ;- RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS SIGN-IN SHEET September 28, 2015 NAME AGENCY E MAIL ADDRESS ___.,,,,. r 0 f1'CCS:C;'C /, fl/oL/ ,1UA /IA<9~r-/LJo fMt-c_ ~v f#t /{ /~-.-sn~ ["..(;? / ,.-''U'""µ c;, > L---- ''i)t,11) bit, i=~~\ ) LI<.... j l }I hn t'i n, 1/ c.Q (,~ 11l~M<~ J:~,.f)/, 1-JnJJic..J ' 0 · fJ. t4-tJ IV ·1 I I I id c> 1Zw-I 1..,· · tf /J~tt Go 1\.-t J3r-.rt. \ ~ N. A-..C/-H....~7 /<\{/-c. P vu. n -n tJ r-v I /~,.<N' --Rtv ~.r-..z t/6'17ilf! 161J' ~ _5j I tJ/r Y//1.,11/(//f/ /tf lil(/l ,Cgp ~I\"-~t~rY _ !l:i>v'A-Yl /~ h.J~A/~ ';i~JtJft L ~ ~J..A r o-\_ RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Monday, April 27, 2015 MINUTES 1. CALL TO ORDER The meeting of the Western Riverside County Programs and Projects Committee was called to order by Chair Ben Benoit at 1:31 p.m., in the Board Room at the County of Riverside Administrative Center, 4080 Lemon Street, First Floor, Riverside, California, 92501. 2. PLEDGE OF ALLEGIANCE At this time, Commissioner Marion Ashley led the Western Riverside County Programs and Projects Committee in a flag salute. 3. ROLL CALL Members/Alternates Present Members Absent Marion Ashley Kevin Jeffries Kathy Azevedo Andrew Kotyuk Ben Benoit Daryl Busch Deborah Franklin Frank Johnston Clint Lorimore Scott Mann* Jesse Molina Karen Spiegel* *Arrived after the meeting was called to order 4. PUBLIC COMMENTS There were no requests to speak from the public. RCTC WRC Programs and Projects Committee Minutes April 27, 2015 Page 2 5. APPROVAL OF MINUTES – MARCH 23, 2015 M/S/C (Franklin/Johnston) to approve the minutes as submitted. 6. ADDITIONS/REVISIONS There were no additions or revisions to the agenda. 7. REPROGRAMMING OF FUNDS RELATED TO STATE ROUTE 91 HIGH OCCUPANCY VEHICLE LANE PROJECT Patti Castillo, Capital Projects Manager, presented the scope of the reprogramming of funds related to SR-91 HOV project. M/S/C (Molina/Franklin) to: 1) Approve reprogramming federal Congestion Mitigation and Air Quality (CMAQ) funds in the amount of $6,197,000 and 1989 Measure A Western County highway local match in the amount of $802,900 from the State Route 91 High Occupancy Vehicle (SR-91 HOV) project right of way phase to the construction phase; 2) Authorize the Executive Director, pursuant to legal counsel review, to execute agreements with Caltrans to reflect the reprogramming of $6,197,000 CMAQ funds and $802,900 Measure A funds from right of way to construction for the SR-91 HOV; and 3) Forward to the Commission for final action. At this time, Commissioners Karen Spiegel joined the meeting. 8. COMMUTER RAIL RESOLUTIONS TO OBTAIN FEDERAL AND STATE GRANT FUNDING Brenda Ramirez, Staff Analyst, presented the details of the commuter rail resolutions to obtain federal and state grant funding. M/S/C (Johnston/Lorimore) to: 1) Adopt Resolution No. 15-009, “Resolution of the Riverside County Transportation Commission to Approve the Submittal of a Project for the Fiscal Year 2014-15 Low Carbon Transit Operations Program”; 2) Adopt Resolution No. 15-010, “Resolution of the Riverside County Transportation Commission to Authorize the Filing of Applications with the Federal Transit Administration for Federal Transportation RCTC WRC Programs and Projects Committee Minutes April 27, 2015 Page 3 Assistance Grants under Sections 5307, and 5337 and Congestion Mitigation Air Quality for Fiscal Year 2014-15”; 3) Adopt Resolution No. 15-011, “Resolution of the Riverside County Transportation Commission to Authorize the Filing of Applications with the Federal Transit Administration for Federal Transportation Assistance Grants under Sections 5307, and 5337 and Congestion Mitigation Air Quality for Fiscal Year 2015-16”; 4) Authorize the Executive Director or designee to submit or file requests for state and federal grant funding of operating and/or capital costs related to rail projects; and 5) Forward to the Commission for final action. 9. REQUEST FOR FEDERAL OPERATING ASSISTANCE FUNDING FOR START-UP OF PERRIS VALLEY LINE Sheldon Peterson, Rail Manager, presented the scope of the request for federal operating assistance funding for the start-up of the Perris Valley Line. In response to Chair Daryl Busch regarding the term of funding, Sheldon Peterson responded that the funding will only be available for the first five years. M/S/C (Ashley/Busch) to: 1) Approve programming $20 million of federal Congestion Mitigation and Air Quality (CMAQ) funds for operating assistance for the start-up of the Perris Valley Line; and 2) Forward to the Commission for final action. At this time, Commissioner Scott Mann joined the meeting. 10. AMENDMENT TO AGREEMENT RELATED TO THE CONSTRUCTION OF THE RIVERSIDE DOWNTOWN STATION OPERATIONS CONTROL CENTER Patti Castillo presented the scope of the amendment to the agreement related to the construction of the Riverside Downtown Station Operations Control Center. In response to Commissioner Spiegel’s question regarding security cameras at the station, Patti Castillo noted the new operations control center will house all of the video feed from the cameras at the commuter rail stations. M/S/C (Molina/Franklin) to: RCTC WRC Programs and Projects Committee Minutes April 27, 2015 Page 4 1) Approve an increase in the contingency for Agreement No. 14-31-149- 00 with M.S. Construction Management Group for additional construction services for the Riverside Downtown Station Operations Control Center (RDNOCC) project in the amount of $250,000, for a revised contingency of $403,389, and a total amount not to exceed $1,937,280; 2) Approve Agreement No. 14-31-075-01, Amendment No. 1 to Agreement No. 14-31-075-00, with Abacus Project Management, Inc. (Abacus) to increase the contingency for anticipated additional construction management (CM), materials testing, and construction surveying services for the RDNOCC, in the amount of $50,000, for a revised contingency amount of $66,586, and a total amount not to exceed $232,448; 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 contingency work as may be required for the project; and 5) Forward to the Commission for final action. 11. AMENDMENTS TO AGREEMENTS WITH TROPICAL PLAZA NURSERY, SEMILLA LANDSCAPE, MORNING STAR SWEEPING, GLOBAL PEST SOLUTIONS AND UNIVERSAL PROTECTION SERVICES FOR THE THREE NEW PERRIS VALLEY LINE STATIONS AND THE EXPANSION OF THE PERRIS TRANSIT CENTER TO THE PERRIS DOWNTOWN STATION Dan Mathers, Facilities Administrator, presented an overview of the amendments to the agreements with Tropical Plaza Nursery, Semilla Landscape, Morning Star Sweeping, Global Pest Solutions, and Universal Protection Services for the three new Perris Valley Line stations and the expansion of the Perris Transit Center to the Perris Downtown Station. In response to Commissioner Clint Lorimore’s question regarding drought tolerant plants, Dan Mathers stated staff does not have a cost representation for changing out the plants. The Commission is also adding irrigation timers that take into consideration the weather conditions. M/S/C (Ashley/Spiegel) to: 1) Approve Agreement No. 11-24-145-02, Amendment No. 2 to Agreement 11-24-145-00, with Tropical Plaza Nursery for maintenance services in the amount of $101,754, plus a contingency amount of $10,175, for an additional amount of $111,929, and $500,000 for drought tolerant landscaping rehabilitation resulting in a total amount not to exceed $1,622,378; RCTC WRC Programs and Projects Committee Minutes April 27, 2015 Page 5 2) Approve Agreement No. 12-24-086-01, Amendment No. 1 to Agreement 12-24-086-00, with Semilla Landscape in the amount of $102,060, plus a contingency amount of $10,206, for an additional amount of $112,266, and a total amount not to exceed $616,377; 3) Approve Agreement No. 14-24-158-01, Amendment No. 1 to Agreement 14-24-158-00, with Morning Star Sweeping in the amount of $37,080, plus a contingency amount of $3,708, for an additional amount of $40,788, and a total amount not to exceed $100,788; 4) Approve Agreement No. 11-24-046-02, Amendment No. 2 to Agreement 11-24-046-00, with Global Pest Solutions in the amount of $4,380, plus a contingency amount of $2,000, for an additional amount of $6,380, and a total amount not to exceed $21,380; 5) Approve Agreement No. 11-24-057-04, Amendment No. 4 to Agreement 11-24-057-00, with Universal Protection Services in the amount of $1,060,723, plus a contingency amount of $106,072, for an additional amount of $1,166,795, and a total amount not to exceed $7,070,895; 6) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the amendments to the agreements, on behalf of the Commission; 7) Authorize the Executive Director, or designee, to execute task orders awarded under the terms of the agreements; 8) Authorize the Executive Director or designee to approve contingency work up to the total not to exceed amount as required for the project; and 9) Forward to the Commission for final action. 12. AMENDMENT TO AGREEMENT WITH FIBERTRONICS FOR CLOSED CIRCUIT TELEVISION CAPITAL IMPROVEMENTS AND STATION MAINTENANCE SERVICES Dan Mathers presented an overview of the amendment to the agreement with Fibertronics for closed circuit television capital improvements and station maintenance services. M/S/C (Busch/Molina) to: 1) Approve Agreement No. 13-24-066-01, Amendment No. 1, to Agreement No. 13-24-066-00 with Fibertronics, Inc. (Fibertronics) for commuter rail station Closed Circuit Television (CCTV) security system installation, maintenance, and repair services at the three new Perris Valley Line stations, and capital improvements at the six existing commuter rail stations, in the amount of $79,200 for CCTV maintenance, $67,500 for repairs, and $500,000 for capital RCTC WRC Programs and Projects Committee Minutes April 27, 2015 Page 6 improvements, plus a contingency amount of $32,335, for an additional amount of $679,035, and a total amount not to exceed $1,293,605; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the amendment to the agreement on behalf of the Commission; 3) Authorize the Executive Director, or designee, to execute task orders awarded under the terms of the agreement; 4) Authorize the Executive Director or designee to approve contingency work up to the total not to exceed amount as required for the project; and 5) Forward to the Commission for final action. 13. AGREEMENTS FOR FREEWAY SERVICE PATROL TOW TRUCK SERVICE Jillian Guizado, Staff Analyst, presented the scope of the agreements for freeway service patrol tow truck service. In response to Commissioner Spiegel’s questions regarding services on the freeway when FSP is not active, Jillian Guizado stated the motorist can use the call boxes, call 911, or use their road service such as AAA. In response to Commissioner Lorimore’s question regarding bid response, Jillian Guizado stated the bid responses have been consistent with the past few RFPs and the Commission did conduct an extensive outreach. In response to Commissioner Kathy Azevedo’s question regarding whether or not member jurisdictions were given the opportunity to bid on the RFP, Jillian Guizado stated if a company is in good standing with California Highway Patrol they were sent a postcard announcing the RFP. In response to Commissioner Jesse Molina’s question regarding how far a vehicle can be towed, Jillian Guizado stated each driver has 10 minutes to mobilize the disabled vehicle whether it is changing a tire, provide fuel, or taking them to the nearest designated drop location. M/S/C (Molina/Franklin) to: 1) Award Agreement No. 15-45-060-00 to Airport Mobil Towing (Airport Mobil) for Freeway Service Patrol (FSP) tow truck services on Interstate 15 Beat No. 25 for a three-year term, plus two one-year options to extend the agreement, for a total amount not to exceed $1,927,000; 2) Award Agreement No. 15-45-061-00 to Pepe’s Towing (Pepe’s) for FSP tow truck services on Interstate 15 Beat No. 26 for a three-year term, RCTC WRC Programs and Projects Committee Minutes April 27, 2015 Page 7 plus two one-year options to extend the agreement, for a total amount not to exceed $1,291,000; and 3) Forward to the Commission for final action. 14. FISCAL YEAR 2015/16 MEASURE A COMMUTER ASSISTANCE BUSPOOL SUBSIDY FUNDING CONTINUATION REQUESTS Jillian Guizado presented an overview of the FY 2015/16 Measure A commuter assistance buspool subsidy funding continuation requests. M/S/C (Spiegel/Franklin) to: 1) Authorize payment of $1,645/month maximum subsidy per buspool for the period July 1, 2015 to June 30, 2016, to the existing Mira Loma, Riverside, and Riverside II buspools; 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. 15. COMMISSIONERS / STAFF REPORT There were no comments from Commissioners or staff. 16. 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 2:11 p.m. Respectfully submitted, Jennifer Harmon Clerk of the Board AGENDA ITEM 7 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: September 28, 2015 TO: Western Riverside County Programs and Projects Committee FROM: David Thomas, Toll Project Manager THROUGH: Michael Blomquist, Toll Program Director SUBJECT: Compensatory Mitigation Agreement with Inland Empire Resource Conservation District and Cooperative Agreement with the California Department of Parks and Recreation for the State Route 91 Corridor Improvement Project STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 16-31-023-00 with the Inland Empire Resource Conservation District (IERCD) for compensatory mitigation (Coastal Sage Scrub Restoration) in an amount not to exceed $1,241,459; 2) Approve Agreement No. 16-31-024-00 with California Department of Parks and Recreation for maintaining Coastal Sage Scrub Restoration in perpetuity in an amount not to exceed $289,342; 3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements on behalf of the Commission; and 4) Forward to the Commission for final action. BACKGROUND: Approval to proceed with the State Route 91 Corridor Improvement Project (SR-91 CIP) was granted when the Record of Decision was issued in November 2012, by the California Department of Transportation, the lead agency under both the California Environmental Quality Act and the National Environmental Policy Act. The approved environmental impact report/statement includes a number of mitigation measures for project impacts, including compensatory mitigation for temporary and permanent impacts to coastal sage scrub (CSS), habitat for the federally endangered California Gnatcatcher (CAGN). SR-91 CIP improvements extend approximately three miles into Orange County. Since these impacts to occupied CAGN habitat occur in Orange County, these impacts are not a covered activity under the Western Riverside County Multiple Species Habitat Conservation Plan. As such, pursuant to consultation with the U.S. Fish and Wildlife Service (USFWS), the project was issued a Biological Opinion (OR/WRIV-08B0733/11F0547) on November 30, 2011. The Biological Opinion prescribed a number of conservation measures to be undertaken including restoration of 16.03 acres of CSS within Chino Hills State Park. In accordance with the Biological Agenda Item 7 1 Opinion, the Commission prepared a compensatory mitigation plan that was approved by USFWS. The plan details the mitigation measures to be undertaken. Compensatory Mitigation Commitment Pursuant to the Biological Opinion, the compensatory mitigation plan detailed the required restoration effort that would be done within Chino Hills State Park in an area identified as Scully Hill. The restoration site was chosen in consultation with USFWS and California Department of Parks and Recreation. Since the restoration of 16.03 acres of CSS is to occur within Chino Hills State Park, the Commission must enter into an agreement with the California Department of Parks and Recreation. Furthermore, staff initiated negotiations with IERCD for implementation of the compensatory mitigation plan requiring an agreement with IERCD. IERCD The IERCD is a special district that has the authority under Division IX of the California Public Resource Code and California Senate Bill 436 to be a resource conservation district that is allowed to hold conservation easements and conduct mitigation work on behalf of the state of California and local public agencies. IERCD regularly works with the resource agencies, including the CDFW, United States Army Corps of Engineers, and the Regional Water Quality Control Board to ensure mitigation requirements are met and monitored. The IERCD has implemented mitigation plans for a number of agencies including Riverside County Flood Control and Water Conservation District, city of Riverside, United States Army Corps of Engineers, San Bernardino County Flood Control District, and Caltrans. The Commission will contract with IERCD for implementation of the compensatory mitigation plan. A copy of the agreement is attached. IERCD will be responsible to fulfill all requirements of the compensatory mitigation plan. This includes site preparation, fencing, planting, irrigation, and five years of maintenance. IERCD will assume all responsibility to implement, manage, monitor, and report mitigation progress to the Commission and the agencies involved. The IERCD has solicited bids for this work. On July 22, 2015, a site walk was conducted with eight potential bidders. IERCD received two bids for the restoration and maintenance work. Habitat Restoration Sciences, Inc. was the low bid for the amount of $1,013,420. IERCD added a contingency for the restoration and maintenance work of $60,000. IERCD also received two bids for the plantings. Mocking Bird Nursery was the low bid at $36,639. IERCD’s fee for administering and managing this work is $131,400. The following table showing the breakdown of these costs and total. Agenda Item 7 2 IERCD Cost Breakdown Scope: Performed by: Cost: Restore and Maintain 16.03 acres of CSS Habitat Restoration Sciences, Inc. $1,013,420 Contingency Habitat Restoration Sciences, Inc. 60,000 Plantings Mocking Bird Nursery 36,639 Implementation and Management IERCD 131,400 TOTAL = $1,241,459 California Department of Parks and Recreation The California Department of Parks and Recreation requires $289,342 for maintenance of the 16.03 acres of restoration land within Chino Hills State Park in perpetuity beyond the five-year establishment period. A copy of the agreement and cost estimate breakdown is attached. Staff recommends mitigating for SR-91 CIP temporary and permanent impacts to CSS, habitat for the federally endangered CAGN, by 1) entering into a compensatory mitigation agreement with IERCD in an amount not to exceed $1,241,459; and 2) entering into the cooperative agreement with California Department of Parks and Recreation in an amount not to exceed $289,342. Financial Information In Fiscal Year Budget: Yes Year: FY 2015/16 Amount: $1,530,801 Source of Funds: 2009 Measure A Sales Tax and Toll Debt Proceeds Budget Adjustment: No GLA No.: 003028 81020 00000 0000 262 31 81020 Fiscal Procedures Approved: Date: 09/18/2015 Attachments: 1) Agreement No. 16-31-023-00 with the IERCD 2) Agreement No. 16-31-024-00 with the California Department of Parks and Recreation Agenda Item 7 3 AGREEMENT TO FACILITATE COMPENSATORY MITIGATION EFFORTS This COMPENSATORY MITIGATION AGREEMENT (“Agreement”) is entered into this ___ day of _______, 2015 (“Execution Date”) by and between RIVERSIDE COUNTY TRANSPORTATION COMMISSION a government transportation agency (“RCTC”) and the INLAND EMPIRE RESOURCE CONSERVATION DISTRICT, a governmental special district (“IERCD”). RECITALS WHEREAS, RCTC is proposing to construct improvements along SR-91 from approximately the Orange/Riverside County line to the SR-91/Interstate 15 (“I-15”) interchange, and along I-15 from SR-91 to the Ontario Avenue Interchange. Specifically, the limits of the Project boundaries range from Post Mile R017.00 to Post Mile 007.70 along SR-91, and from Post Mile 041.50 to Post Mile 038.50 along I-15. Activities that will be performed during the SR-91 Corridor Improvement Project include modifications to existing structures, replacement of existing structures, and construction of new bridges. The Project is located in northern Riverside County and the eastern edge of Orange County, within the cities of Anaheim, Corona, and Riverside (the “Project”); and WHEREAS, the Project consists of constructing improvements that will have direct and indirect effects to coastal sage scrub (“CSS”) resources; and WHEREAS, the Project will be constructed between July 2014 and January 2017; and WHEREAS, the Project will result in the temporary loss of 3.01 acres of California gnatcatcher (“CAGN”) habitat (1.29 acres of CSS; 1.72 acres of vegetation communities used by CAGN for dispersal and foraging); and WHEREAS, California Department of Transportation (“Caltrans”) initiated formal Section 7 Consultation for the Project with USFWS on June 21, 2011. This formal consultation process reviewed the potential effects of the Project on federally threatened and endangered species and their designated critical habitat, including the federally threatened CAGN. On November 30, 2011, USFWS responded by issuing a Biological Opinion (“BO”) (attached as Exhibit A), and incidental take permit for the Project. In that document, USFWS confirmed direct and indirect effects of the Project and detailed numerous conditions of approval, including conservation measures and compensatory mitigation for CAGN; and WHEREAS, in accordance with Condition 20, RCTC will offset the permanent loss of 8.42 acres of occupied CAGN habitat in Orange County, including 6.32 acres of designated critical habitat, by restoring 16.03 acres of habitat suitable for CAGN breeding, dispersal and foraging in the Chino Hills State Park (“CHSP”); and WHEREAS, in accordance with Condition 21 of the BO, RCTC will offset the temporary loss of occupied CAGN habitat in Orange County, including 2.09 acres of designated critical habitat, with in-kind or better habitat restoration onsite after completion of the Project; and 27761.00049\10664722.6 - 1 - ATTACHMENT 1 4 WHEREAS, in accordance with Condition 22, prior to initiating Project impacts, a restoration plan has been developed to offset the permanent and temporary impacts to occupied CAGN habitat and all designated critical habitat areas. The plan has been approved by USFWS and is called the Compensatory Mitigation Plans for CAGN and Least Bell’s Vireo (“LBV”) dated December 2013 prepared by Parsons for RCTC (“CMP”). Minimum requirements for the plan include a detailed description of restoration methods, slope stabilization/erosion control, criteria for restoration to be considered successful, and monitoring and reporting protocol. The restoration plan will be implemented for a minimum of 5 years, unless criteria are met earlier and all artificial water has been off for at least 2 years. WHEREAS, in accordance with Condition 23, RCTC will provide appropriate funds, to be maintained in a non-wasting endowment, to CHSP to provide for the long-term maintenance and management of the restored areas within the park to support CAGN habitat in perpetuity. WHEREAS, in its notice to the United States Fish and Wildlife Service (“USFWS”), RCTC agreed to mitigate Project impacts by providing funding for the restoration of 16.03 acres of USFWS-, and California Department of Parks and Recreation (“CDPR”)-approved restored or restorable offsite CSS habitat within CDPR at CHSP (“Compensatory Mitigation Requirement”); and WHEREAS, USFWS staff represented to RCTC that the Compensatory Mitigation Requirement may be satisfied by IERCD restoring 16.03 acres of existing, degraded CSS habitat within CHSP, which restoration work is further defined in Section 1(B) below (the “Conservation Work”); and WHEREAS, although not a party to this Agreement, Caltrans has agreed to having IERCD conduct the Conservation Work necessary to satisfy Caltrans’ Compensatory Mitigation Requirement as identified in the SR 91 CIP Biological Opinion at a parcel within CHSP; and WHEREAS, USFWS and CDPR have represented to RCTC their collective approval of the use of IERCD to provide the Conservation Work; and WHEREAS, IERCD is a Resource Conservation District formed for the control of runoff, the prevention or control of soil erosion, and the improvement of land capabilities pursuant to Public Resources Code section 9151 et seq.; and WHEREAS, IERCD may accept grants of money to carry out its purposes and may establish and charge fees for services provided upon request pursuant to Public Resources Code sections 9401 et seq.; and WHEREAS, IERCD, and RCTC (collectively, the “Parties”) desire to enter into this Agreement to set forth the terms and conditions pursuant to which IERCD agrees to provide the Conservation Work. AGREEMENT NOW, THEREFORE, in consideration of the above and the mutual covenants, terms and conditions contained herein, and pursuant to the laws of the State of California, RCTC and 27761.00049\10664722.6 - 2 - 5 IERCD hereby agree as follows: 1. Services: IERCD agrees to: A. Utilize the CMP attached as Exhibit B as a guide for the Conservation Work, as defined herein, and complete the Conservation Work in a good and workmanlike manner in accordance with the requirements of the CMP and USFWS; and B. The Conservation Work shall consist of restoring the designated 16.03 acres of CSS habitat within CHSP (the “Site”) for the benefit of RCTC’s Project, including, but not limited to, implementing the monitoring and maintenance required under the CMP for five (5) years or until the success criteria as set forth in the CMP (“Success Criteria”) have been met and written confirmation of success is provided by USFWS, pursuant to issuance of a signed Certificate of Compliance, whichever event occurs first, unless agreed upon by the Parties; and C. Prepare an annual report each year for a period of five (5) years (“Annual Report”) that documents the Conservation Work. The IERCD will provide the Annual Reports to John Taylor of USFWS, Enrique Arroyo of CDPR, Scott Quinnell at Caltrans, and David Thomas of RCTC documenting the Conservation Work performed over the Site (collectively, the activities performed in this Section 1 shall be called the “Services”. D. The Parties agree that their goal is for the Success Criteria to be met and confirmed in writing by USFWS prior to the end of the Term (as defined below). In support of this goal, if necessary, no later than one (1) month after submission of the Fourth Annual Report, IERCD shall arrange for a meeting with RCTC to discuss any foreseeable concerns or issues that would limit IERCD’s ability to meet the Success Criteria and obtain USFWS written confirmation thereof within the Term, and agree upon measures to be implemented to address such issues or concerns. E. The Parties agree that, other than completion of these Services, IERCD shall not be responsible for any other requirement, duty or obligation arising from the USFWS BO. F. IERCD will work on procuring a right of entry agreement with the CHSP along a route starting at Highway 71 and entering the Site from the north. For the purposes of the right of entry agreement only, RCTC agrees to be treated as one of IERCD’s contractors, all of whom are required to comply with insurance and indemnity provisions of the future right of entry agreement. If IERCD is not able to procure a right of entry agreement within three (3) months of the execution of this Agreement, the Parties will discuss how to move forward with the Conservation Work, including a potential termination of this Agreement. 2. Time of Performance & Termination: A. Time of Performance; Schedule. i. IERCD agrees to commence the Services upon execution of this Agreement and receipt of the Fee, as further defined in Section 3(A) below. 27761.00049\10664722.6 - 3 - 6 ii. Since the timelines in the schedules in the CMP are no longer valid, the Parties shall timely work together to set a new schedule for the Services, which schedule shall be agreed upon in writing. IERCD shall timely perform the Services in accordance with such new schedule. B. Term; Normal Termination. IERCD agrees to perform the Services until the earlier of: (a) completion of the five (5) year monitoring and maintenance period in accordance with the CMP, completion and acceptance by USFWS of the fifth Annual Report, and submission to RCTC of a summary report of restoration activities evaluating how the Site meets performance standards (as defined in the CMP) after five (5) years of monitoring and maintenance, or (b) until the Success Criteria have been met, and written confirmation of success is provided by USFWS, pursuant to issuance of a signed Certificate of Compliance, and all other requirements of the CMP are complete, at which time this Agreement shall automatically terminate (“Term”). C. Extension. Notwithstanding Section 2(B), if necessary for RCTC to obtain approval from the USFWS for satisfaction of the requirements of the USFWS BO, IERCD will agree to extend the performance of the Services for one year at a time until RCTC receives approval of the Compensatory Mitigation requirement from the USFWS; provided, however, that the Parties first reach a written amendment pursuant to Section 11 below regarding the cost to extend this Agreement. Notwithstanding the foregoing, if failure of USFWS to provide final approval of the Compensatory Mitigation requirement is a result of IERCD’s failure to comply with the terms of this Agreement, IERCD shall continue to provide the Services until such final approval is received at no additional cost to RCTC. D. Force Majeure. In the event that severe storm damage, flood, hurricane, tornado, fire or other unusual circumstances or natural disaster (“Event”) beyond IERCD’s control damages the Site, IERCD shall not be responsible to restore it to its pre-event condition provided that IERCD notify RCTC within 15 days of an Event. If an Event occurs, one or both of the Parties may agree to one of the following options (i) meet together to renegotiate the completion of the Conservation Work to incorporate any new requirements that will be required to conduct additional repair and restoration caused by the Event, or (ii) terminate this Agreement by providing a written notice to the non-terminating Party, provided, however, IERCD will then return any unused portion of the Fee, as described herein, and provide an accounting of the utilized portion of the Fee to RCTC within 30 days of receipt of such notice. Upon RCTC’s request, IERCD shall provide a recommended plan of action in response to an Event. 3. Fee: A. Cost of Services. RCTC agrees to pay IERCD [$1,241,459], reflecting IERCD’s reasonable costs to perform the Services as described in Section 1 herein (“Fee”). B. When Payment Due: The Parties agree that the Fee is due and payable in full on the Execution Date of this Agreement. IERCD agrees to provide RCTC with a written letter of receipt no later than 7 days after receipt of the Fee. 27761.00049\10664722.6 - 4 - 7 C. Remedies. IERCD shall be under no obligation under this Agreement unless and until RCTC tenders the Fee and arranges for lawful access for IERCD to the Site. In the event RCTC does not tender the Fee when due, IERCD shall have no obligation to RCTC whatsoever under this Agreement, whether at law or equity. 4. Mitigation and/or Conservation Responsibility: A. The Parties explicitly agree that any mitigation for activities of RCTC not covered by this Agreement, including but not limited to any mitigation set forth in the USFWS BO not specifically agreed to be conducted by IERCD under this Agreement, or any other regulatory permit issued to RCTC or other mitigation related to the Project, remains solely and entirely the responsibility of RCTC. The Parties agree that IERCD shall not be responsible in law or equity if the Conservation Work agreed to under this Agreement is determined in any way, by any person or agency, except for the USFWS, to be insufficient for mitigation or regulatory compliance purposes. B. The Parties to this Agreement acknowledge that USFWS staff have verbally represented that the Services described in Section 1 above will satisfy the subject Compensatory Mitigation Requirement of the USFWS BO. RCTC agrees that IERCD shall not be responsible to conduct any Conservation Work or other Services except for those which have been outlined by this Agreement in Section 1, even if USFWS later modifies the mitigation requirements of the USFWS BO. C. RCTC remains responsible for obtaining any final approval from USFWS of satisfaction of their USFWS BO conditions, including the Compensatory Mitigation requirement, provided that IERCD shall work with RCTC to complete the process for obtaining such final approval as relates to the Compensatory Mitigation. 5. Assignment: This Agreement may not be assigned to another party except as may be agreed to by the Parties in writing. 6. IERCD as Contractor: IERCD agrees that it shall either perform or contract for the performance of all Conservation Work required under this Agreement, and as outlined in the attached Compensatory Mitigation Plans for CAGN and LBV. RCTC shall have no liability, monetary or otherwise, to any cooperators, subcontractors, providers of services or recipients of service under this Agreement, except to IERCD. IERCD shall require any contractor hired to complete the Conservation Work to indemnify RCTC and to include RCTC as an additional insured under IERCD’s agreement with such contractor, with indemnification and additional insured coverage afforded to RCTC to the same extent provided to IERCD. 7. Indemnification. A. RCTC shall indemnify, defend and hold the IERCD, its directors, officials, officers, employees, agents, consultants and contractors free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any breach of contract, negligent acts, omissions or breach of law, or willful 27761.00049\10664722.6 - 5 - 8 misconduct of RCTC, its officials, officers, employees, agents, consultants or contractors in the performance of RCTC’s obligations under this Agreement. B. IERCD shall indemnify, defend and hold RCTC, its directors, officials, officers, employees, agents, consultants and contractors free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any breach of contract, negligent acts, omissions or breach of law, or willful misconduct of the IERCD, its officials, officers, employees, agents, consultants or contractors in the performance of the IERCD’s obligations under this Agreement. 8. Copies and Correspondence: IERCD agrees to provide RCTC with copies of all significant correspondence, reports, contracts, and publications pertaining to the Conservation Work. 9. Notices. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other shall be in writing and either served personally or sent by first class mail, postage prepaid, addressed as follows: 27761.00049\10664722.6 - 6 - 9 To IERCD at: To RCTC at: Inland Empire Resource Conservation District 25864-K Business Center Drive Redlands, CA 92374 Attn: Mandy Parkes, District Manager Phone: (909) 799-7407 SR-91 Corridor Improvement Project Project Office 2455 Anselmo Dr., Ste. 202 Corona, CA 92879 Attn: David Thomas Phone: (951) 280-6311 John Taylor Fish & Wildlife Biologist U.S. Fish and Wildlife Service - Palm Springs 777 East Tahquitz Canyon Way, Suite 208 Palm Springs, CA 92262 Phone: (760) 322-2070 x218 john_m_taylor@fws.gov Enrique Arroyo Department of Parks and Recreation Inland Empire District 17801 Lake Perris Drive Perris, CA 92571 Phone: (951) 453-6848 Scott Quinnell California Department of Transportation Division of Environmental Planning 464 West 4th Street, MS 822 San Bernardino, CA 92401-1400 Phone: (909) 383-6936 and/or to such other address as either party from time to time shall designate by written notice to the other. 10. Entire Agreement. This instrument, including exhibits, sets forth the entire agreement of the Parties with respect to the Conservation Work and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Conservation Work, all of which are merged herein. 11. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the Parties hereto. 12. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto. No other person or entity shall have any right of action based upon the provisions of this Agreement. 13. Interpretation. The Parties hereto have negotiated this Agreement at arm’s length and have been advised by their respective attorneys, or if not represented by an attorney, represent that they had an opportunity to be so represented and no provision contained herein shall be construed against IERCD solely because it prepared this Agreement in its executed form. 27761.00049\10664722.6 - 7 - 10 14. Construction. The Section headings and captions of this Agreement are, and the arrangement of this instrument is, for the sole convenience of the Parties to this Agreement. The Section headings, captions, and arrangement of this instrument do not in any way affect, limit, amplify, or modify the terms and provisions of this Agreement. The singular form shall include plural, and vice versa. This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both Parties have prepared it. Unless otherwise indicated, all references to Sections are to this Agreement. All exhibits referred to in this Agreement are attached to it and incorporated in it by this reference. 15. Severability. If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement shall not be affected. 16. Controlling Law. The interpretation and performance of this Agreement shall be governed by the laws of the State of California. 17. Venue. Any action at law or in equity brought by either of the Parties hereto for the purpose of enforcing a right or rights provided for by this Agreement shall be tried in a court of competent jurisdiction in the County of Riverside, State of California, and the Parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county. 18. Authority. Each party to this Agreement warrants to the other that it is duly organized and existing and that it and the respective signatories have full right and authority to enter into and consummate this Agreement and all related documents and bind the Parties thereto. 19. Counterparts. This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement, which shall be binding on all of the Parties, notwithstanding that all of the Parties are not signatory to one original or the same. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written. __________________ Date _____________________________________ Anne Mayer, Executive Director Riverside County Transportation Commission __________________ Date _____________________________________ Paul Williams, President of the Board of Directors Inland Empire Resource Conservation District 27761.00049\10664722.6 - 8 - 11 EXHIBIT A USFWS BIOLOGICAL OPINION 27761.00049\10664722.6 - 9 - 12 EXHIBIT B COMPENSATORY MITIGATION PLANS FOR COASTAL CALIFORNIA GNATCATCHER AND LEAST BELL’S VIREO 27761.00049\10664722.6 - 10 - 13 District Agreement No XX-xxx Page 1 of 7 ORA-91-14.43/R18.91 RIV-91R0.00/R13.04 RIV-15-35.64/45.14 Coastal Sage Scrub Restoration EA: 0F540 Project ID: 12-0000-0133 District Agreement No. XX- xxx COOPERATIVE AGREEMENT This AGREEMENT, entered into effective on , 2015, is between RIVERSIDE COUNTY TRANSPORTATION COMMISSION, referred to herein as "RCTC," and the CALIFORNIA DEPARTMENT OF PARKS AND RECREATION, CHINO HILLS STATE PARK, referred to herein as "PARKS." RECITALS 1. RCTC and PARKS, pursuant to Streets and Highways Code section 114 and/or 130, are authorized to enter into this Agreement. 2. RCTC is proposing to construct one additional general purpose (GP) land and extend existing tolled Express Lanes. This project would construct one GP lane in each direction on SR91 from the SR-91/SR-241 interchange in Anaheim to Pierce Street in Riverside, referred to herein as “PROJECT.” 3. PROJECT will result in permanent (8.42 acre) and temporary (3.01 acre) impacts to Coastal California gnatcatcher habitat (coastal sage scrub within California Department of Fish and Wildlife (referred to herein as CDFW) jurisdictional habitat, referred to collectively herein as "IMPACTS." 4. Pursuant to consultation with the United States Fish and Wildlife Service (referred to herein as USFWS), California Department of Transportation (“CALTRANS”) obtained a Biological Opinion (OR/WRIV-08B0733/11F0547, dated November 30, 2011) for PROJECT, referred to herein as BO and attached hereto as Exhibit A and made a part of this Agreement. 5. RCTC, in order to mitigate for IMPACTS and to satisfy Items 20-22, and 24 (pages 12-13) under "Gnatcatcher Conservation Measures" of BO, will restore 16.03 acres of coastal sage scrub to offset the permanent loss of 8.42 acres of CAGN habitat (including 6.32 acres of designated critical habitat) within Chino Hills State Park, referred to herein as "MITIGATION PROJECT" and more particularly described in the Compensatory Mitigation Plans for Coastal Gnatcatcher and Least Bell’s Vireo ("Mitigation Plan") prepared for PROJECT, attached hereto as Exhibit C and made a part of this Agreement. ATTACHMENT 2 14 District Agreement No XX-xxx Page 2 of 7 6. MITIGATION PROJECT will be implemented within Chino Hills State Park. Coastal sage scrub restoration will be implemented on a hillside referred to as Scully Hill within Chino Hills State Park, directly adjacent to Green River Golf Club, as depicted on Figure 2 and 8 of Exhibit C. The restoration areas will be referred to herein as "MITIGATION PARCEL." 7. Plant establishment for MITIGATION will be no less than 2 years of restoration planting. 8. PARTIES agree that the estimated cost for future maintenance of MITIGATION PROJECT is $289,341.50 which amount repres ents RCTC’s total financial obligation for MITIGATION PROJECT. 9. PARTIES now define herein the terms and conditions under which MITIGATION PROJECT is to be administered, financed, and maintained. SECTION I PARKS AGREES: 1. To allow RCTC, its successors, assigns, consultants, subcontractors reasonable access on weekdays between 8 and 5, with 24 (or 48) hour notice. Emergency access is granted where there is an imminent need to enter the property without notice at any time, with emergency entry reported to PARKS within 24 hours. 2. To provide a substitute site or sites within Chino Hills State Park if for any reason MITIGATION PARCELS as described herein cannot be utilized for MITIGATION PROJECT. 3. To utilize one hundred percent (100%) of RCTC’s funds to satisfy only MITIGATION REQUIREMENTS. 4. To submit an invoice to RCTC, within thirty (30) calendar days of execution of this Agreement, in the amount of $289,341.50 which amount represents RCTC’s total financial obligation for MITIGATION PROJECT. SECTION II RCTC AGREES: 1. To deposit with PARKS within thirty (30) calendar days of receipt of billing thereof, the amount of $289,341.50 which amount represents RCTC’s total financial obligation for endowment of MITIGATION PROJECT 2. To obtain written confirmation from USFWS of their acceptance of MITIGATION PROJECT and provide said confirmation to PARKS. 15 District Agreement No XX-xxx Page 3 of 7 3. To maintain, inspect, monitor; document, and report the progress of the MITIGATION PROJECT as specified in Exhibit C. RCTC shall provide copies of reports to PARKS. SECTION III IT IS MUTUALLY AGREED: 1. All obligations of RCTC under the terms of this Agreement are subject to the appropriation of resources by the Legislature, State Budget Act authority, and the allocation of funds by the California Transportation Commission. 2. Should there be any conflicts between the terms and conditions of the BO, 1602, Mitigation Plan, and this Agreement, the terms and conditions of the BO shall control first, then the 1602, then this Agreement and then the Mitigation Plan. 3. All applicable laws, rules and policies relating to the use of federal or state funds shall apply, notwithstanding other provisions of this Agreement. 4. The party that discovers hazardous material (HM) will immediately notify the other party(ies) to this Agreement. HM-1 is defined as hazardous material (including but not limited to hazardous waste) that may require removal and disposal pursuant to federal or state law, whether it is disturbed by MITIGATION PROJECT or not. HM-2 is defined as hazardous material (including but not limited to hazardous waste) that may require removal and disposal pursuant to federal or state law, only if disturbed by MITIGATJON PROJECT. Management activities associated with either HM-1 or HM-2 include, without limitation, any necessary manifest requirements and designation of disposal facility. 5. RCTC, independent of MITIGATION PROJECT, is responsible for any HM-1 found within existing State Highway System (SHS) right of way. RCTC will undertake, or cause to be undertaken, HM-1 management activities with minimum impact to PROJECT schedule and will pay, or cause to be paid, all costs associated with HM-1 management activities. 6. RCTC has no responsibility for management activities or costs associated with HM-1 found outside the existing SHS right of way. If HM-1 is found outside existing SHS right of way, under state and federal law responsibility for such HM-1 rests with the owner(s) of the parcel(s) on which the HM-1 is found. If HM-1 is found outside the existing SHS right of way, parties will reassess the feasibility of the MITIGATION PROJECT and mutually agree on a course of action prior to the commencement of any additional work. 7. PARKS is responsible for the management of any HM-2 found within MITIGATION PROJECT limits. PARKS may use up to 5% of the funds already obligated by RCTC under this agreement for the costs associated with HM-2 management activities. However, RCTC is not responsible to pay any additional money to PARKS for these costs. 8. RCTC’s acquisition of or acceptance of title to any property on which any hazardous material is found will proceed in accordance with RCTC’s policy on such acquisition. 16 District Agreement No XX-xxx Page 4 of 7 9. Neither RCTC nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by PARKS and/or its agents under or in connection with any work, authority or jurisdiction conferred upon PARKS and arising under this Agreement. It is understood and agreed that PARKS and/or its agents shall fully defend, indemnify and save harmless RCTC and all its officers and employees from all claims, suits or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation and other theories or assertions of liability occurring by reason of anything done or omitted to be done by PARKS and/or its agents under this Agreement. 10. Neither PARKS nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by RCTC and/or it agents under or in connection with any work, authority or jurisdiction conferred upon RCTC and arising under this Agreement. It is understood and agreed that RCTC and/or its agents shall fully defend, indemnify and save harmless PARKS and all its officers and employees from all claims, suits or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation and other theories or assertions of liability occurring by reason of anything done or omitted to be done by RCTC and/or its agents under this Agreement. 11. In the event of any breach of this Agreement by either party, the other party may enforce this Agreement by any means available at law or in equity. In the event of litigation, mediation or arbitration to resolve any breach of, or dispute related to this Agreement, each party agrees to pay for their own attorneys' cost and expenses, without regard to who prevails. 12. A failure by either party to enforce any provision of this Agreement shall not be construed as a continuing waiver, or as a waiver of the right to compel enforcement of that provision. 13. This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement that shall be binding on all of the PARTIES notwithstanding that all of the PARTIES are not a signatory to the original or the same counterpart. If any provision of this Agreement is held invalid, the other provisions shall not be affected thereby; 14. No alteration or variation of the terms of this Agreement shall be valid unless made in a written amendment to this Agreement and signed by the parties hereto and no oral understanding or agreement incorporated herein shall be binding on any of the parties hereto. 15. Nothing within the provisions of this Agreement is .intended to create duties or obligations to or rights in third parties not parties to this Agreement or to affect the legal liability of either party to the Agreement by imposing any standard of care different from the standard of care imposed by law. 16. This Agreement shall terminate upon acceptance of the MITIGATION PROJECT by USFWS at the end of the five (5) year monitoring period or December 31, 2019 whichever is earlier in time. However all indemnification., document retention, audit, claims, environmental, legal 17 District Agreement No XX-xxx Page 5 of 7 challenge, hazardous material, operation, maintenance, and ownership articles will remain in effect until terminated or modified in writing by mutual agreement. 18 District Agreement No XX-xxx Page 6 of 7 PARTIES declare that: 1. Each PARTY is an authorized legal entity under California state law. 2. Each PARTY has the authority to enter into this Agreement. 3. The people signing this Agreement have the authority to do so on behalf of their public agencies. Riverside County Transportation STATE OF CALIFORNIA Commission (RCTC) Department of Parks and Recreation Chino Hills State Park By: By: District Director District Superintendant RCTC CDPR Approved as to form and procedure: Approved as to form: Attorney General Counsel RCTC Certified as to budgeting of funds: District Budget Manager Certified as to funds: Accounting Administrator 19 District Agreement No XX-xxx Page 7 of 7 Exhibit A – Biological Opinion Exhibit B – 1602 Streambed Altercation Agreement Exhibit C – Mitigation Plans for CAGN/LBV 20 21 BUDGET ESTIMATE FOR RESOURCE MAINTENANCE COSTS CHINO HILLS STATE PARK I. ANNUAL PER ACRE RESOURCE MANAGEMENT COSTS FOR UPLAND SITES NEED RATING MANAGEMT ACTION STAFF HRS./ ACRE RATE/ HR. $ STAFF COST $ O & E COST $ FREQ./ YEAR SUBTOTAL $ ESSENTIAL CONDITON ASSESSMENT ES 0.2 45 9 20 4 116 ESSENTIAL SENSITIVE SPEC. MON. ES 0.2 45 9 20 6 174 ESSENTIAL “ ESI 0.2 20 4 20 6 144 POTENTIAL INVASIVES CONTROL * PMWI 0.4 27 11 120 ** 2 262 POTENTIAL “ SPA 0.4 17 7 – ** 2 14 POTENTIAL “ PA 0.4 14 6 – ** 2 12 TOTAL POTENTIAL ANNUAL/ACRE COST 722 * Invasives control will be necessary for infestations of species such as Cynara cardunculus (artichoke thistle), Foeniculum vulgare (wild fennel) and Lepidium latifolium (perennial pepperweed), which are known to occur within the boundaries of Chino Hills State Park and have the potential of completely dominating important mitigation restoration sites. These species are on the A-1 List, Most Invasive Wildland Pest Plants of California per the California Exotic Pest Plant Council. ** O & E costs for invasives control are estimated per crew and included with the PMWI costs, (the crew lead person) and include materials, equipment and vehicle operation costs. 22 II. ANNUAL PER ACRE RESOURCE MANAGEMENT COSTS FOR RIPARIAN SITES NEED RATING MANAGEMT ACTION STAFF HRS./ ACRE RATE/ HR. $ STAFF COST $ O & E COST $ FREQ./ YEAR SUBTOTAL $ ESSENTIAL CONDITON ASSESSMENT ES 0.2 45 9 20 4 116 ESSENTIAL SENSITIVE SPEC. MON. ES 0.2 45 9 20 6 174 ESSENTIAL “ ESI 0.2 20 4 20 6 144 POTENTIAL INVASIVES CONTROL * PMWI 0.4 27 11 120 ** 6 786 POTENTIAL “ SPA 0.4 17 7 – ** 6 42 POTENTIAL “ PA 0.4 14 6 – ** 6 36 TOTAL POTENTIAL ANNUAL/ACRE COST 1298 * Invasives control will be necessary for infestations of species such as Arundo donax (giant reed), Tamarix chinensis, (tamarisk) and Senecio mikanioides (cape ivy), which are known to occur within the boundaries of Chino Hills State Park and have the potential of completely dominating important sites. These species are on the A-1 List, Most Invasive Wildland Pest Plants of California per the California Exotic Pest Plant Council. ** O & E costs for invasives control are estimated per crew and included with the PMWI costs, (the crew lead person) and includes materials, equipment and vehicle operation costs. 23 Formula for Calculating a Lump Sum Contribution to the Endowment: Cost per acre from matrix above divided by target rate of return multiplied by # of acres = contribution amount Example - ($722.00/ .040) x 16.03 acres = $289,341.50 24 AGENDA ITEM 8 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: September 28, 2015 TO: Western Riverside County Programs and Projects Committee FROM: David Thomas, Toll Project Manager THROUGH: Michael Blomquist, Toll Program Director SUBJECT: 91 Express Lanes Riverside Orange Facility Agreement STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve the 91 Express Lanes Riverside Orange Facility Agreement (ROFA), Agreement No. 16-31-025-00, with the Orange County Transportation Authority (OCTA) for the Anaheim Toll Operations Center in the amount of $421,242 for tenant improvements, $237,055 for rent through January 31, 2018, and a contingency amount of $32,915, for a total amount not to exceed $691,212; 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, or designee, to approve contingency work up to the total amount not to exceed as required; and 4) Forward to the Commission for final action. BACKGROUND: In December 2011, the Commission and OCTA executed the Orange Riverside Cooperative Agreement (ORCA) that defines how the agencies will jointly operate the 91 Express Lanes as a seamless, combined toll system in Orange and Riverside Counties. The ORCA defines each agency’s roles and responsibilities for the 91 Express Lanes during the design and construction of the extension into Riverside County as well as the long-term operation and maintenance of the combined 91 Express Lane facility. ROFA In conjunction with its operation of the OCTA 91 Express Lanes, OCTA leases office space in Anaheim for use as a toll operations center (TOC) and office space in Corona as a customer service center (CSC). The TOC and CSC are collectively defined in the ORCA as the toll related facilities. As recognized in the ORCA, operation of the Commission’s 91 Express Lanes will require the use and expansion or modification of these existing toll related facilities. This ROFA is being entered into by the agencies to implement certain portions of the ORCA pertaining to the lease, expansion, and joint use of the toll related facilities. Further, the ROFA Agenda Item 8 25 and its future amendments will serve as the primary agreement to allow reimbursement of various costs between the two agencies. This initial ROFA establishes the Commission’s reimbursement costs for tenant improvements and rent for the TOC through January 31, 2018. A breakdown of the Commission’s share of the costs is shown in the table below. ROFA Cost Breakdown (Commission Share) Item Cost Commission share of Tenant Improvements $438,273 Plus 2 percent Contingency 7,969 Gross cost to Commission for Tenant Improvements 446,242 Less Commission share of Tenant Improvement Allowance (25,000) Net cost to Commission for Tenant Improvements = 421,242 Commission share of TOC Rent Pre-Opening to Jan 9, 2017 67,572 Commission share of TOC Rent Post-Opening to Jan 31, 2018 169,483 Total Commission share of TOC Rent = 237,055 Subtotal = 658,297 5 percent Agency Contingency = 32,915 AGREEMENT TOTAL = $691,212 The existing TOC lease agreement between OCTA and the building owner, attached, extends through August 31, 2030. Future ROFA amendments will be presented to the Commission for TOC rent after January 31, 2018, the CSC tenant improvements, CSC rent, and other facilities issues that require reimbursement between the two agencies. Recommendation Staff recommends entering into the ROFA with OCTA for an amount not to exceed $691,212. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2015/16 FY 2016/17+ Amount: $453,702 $237,510 Source of Funds: Toll Debt Proceeds and Toll Revenues Budget Adjustment: No N/A GLA No.: 003028 81301 00000 0000 262 31 81301 (pre-opening) XX3028 81016 00000 0000 591 XX 81002 (post-opening) Fiscal Procedures Approved: Date: 09/21/2015 Agenda Item 8 26 Attachments: 1) Agreement No. 16-31-025-00 with the OCTA for Toll Related Facilities 2) TOC Lease Agreement Agenda Item 8 27 91 EXPRESS LANES RCTC- OCTA FACILITY AGREEMENT (“ROFA”) This 91 Express Lanes RCTC-OCTA Facility Agreement (“ROFA”) is made and entered into this _____ day of _________ 2015 by and between the Riverside County Transportation Commission (“RCTC”) and the Orange County Transportation Authority (“OCTA”). RCTC and OCTA are sometimes referred to herein individually as "Party", and collectively as the "Parties". Recitals A. OCTA currently operates and maintains the existing SR-91 Express Lanes in Orange County (the “OCTA 91 Express Lanes”) under a franchise agreement with the State of California. RCTC is currently constructing the extension of the SR-91 Express Lanes in Riverside County (the “RCTC 91 Express Lanes”). B. The Parties previously entered into that certain Cooperative Agreement for State Route 91 Express Lanes and Corridor Improvements, dated December 16, 2011 (“Cooperative Agreement”), which governs the Parties’ respective rights and responsibilities with respect to RCTC’s construction of the RCTC 91 Express Lanes and future cooperation and coordination by the Parties for operation of the OCTA 91 Express Lanes and the RCTC 91 Express Lanes. C. In conjunction with its operation of the OCTA 91 Express Lanes, OCTA leases office space in Anaheim for use as a toll operation center and in Corona for use as a Customer service center. The toll operations center and Customer service center are collectively defined in the Cooperative Agreement as the “Toll Related Facilities.” As recognized in the Cooperative Agreement, operation of the RCTC 91 Express Lanes will require the use by RCTC of existing Toll Related Facilities, as well as expansion of the Toll Related Facilities. D. This ROFA is made in relation to and with the intention of implementing certain portions of the Cooperative Agreement pertaining to the lease, expansion, and joint use of the Toll Related Facilities. This ROFA is intended to govern in the case of any direct conflict between the ROFA and the Cooperative Agreement, unless otherwise specified herein. NOW THERFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, it is mutually understood and agreed as follows: 1.Defined Terms. (A) For the purposes of this ROFA, the following terms shall have the meanings hereinafter provided: (i) Additional Toll Improvements. The term “Additional Toll Improvements” shall mean and refer to the toll utility buildings in the SR-91 median, as well as 1 1113614.1 ATTACHMENT 1 28 other toll facilities such as the gantries, readers, cameras, communication networks and lane facilities, computer monitors, displays, equipment, hardware and/or software, including, but not limited to, the Revenue and Account Management System (RAMS) software. (ii) Anticipated Opening Date. The term “Anticipated Opening Date” shall mean and refer to the date RCTC reasonably anticipates the RCTC 91 Express Lanes will first be made available to traffic, which date is currently January 9, 2017. (ii) Customer Service Center. The term “Customer Service Center” or “CSC” shall mean and refer the Customer service center for the SR-91 Express Lanes, which is presently located at 2275 Sampson Avenue in Corona, California. (iv) TOC Lease. The term “TOC Lease” shall mean and refer to that certain Office Lease between OCTA and Kraemer II Fullerton, LLC for the Toll Operations Center, dated June 24, 2015, which is attached hereto as Exhibit “A,” as it may be amended from time to time. (v) Toll Operations Center. The term “Toll Operations Center” or “TOC” shall mean and refer to the portion of premises located at 180 North Riverview Drive, Anaheim, California that is subject to the TOC Lease, including, without limitation, the traffic operations center located therein. (vi) Toll Related Facilities. The term “Toll Related Facilities” shall mean and refer to the Toll Operations Center (TOC) and the Customer Service Center (CSC), collectively. (B) Any term used herein with initial capitalized letters and not otherwise defined herein shall have the meaning set forth in the Cooperative Agreement or the TOC Lease, as applicable. 2. TOC Lease. (A) In accordance with Section 2.7.1 of the Cooperative Agreement OCTA has entered into the TOC Lease for the Toll Operations Center, the terms of which OCTA and RCTC have mutually agreed upon, and which RCTC hereby approves. A copy of the TOC Lease is attached to this ROFA as Exhibit “A” and incorporated herein by reference. (B) The basic terms of the TOC Lease are summarized as follows: (i) Parties. Kraemer II Fullerton, LLC is the “Landlord” and OCTA is the “Tenant” as defined in the TOC Lease. (ii) Term. The TOC Lease provides for a fifteen (15) year term, commencing September 1, 2015, and expiring August 31, 2030. Pursuant to Rider 1 attached to the TOC Lease, OCTA is also granted one option to extend the TOC Lease term for an additional five (5) years at the then “Fair Market Rental Value,” as more particularly defined in said Rider 1 to the TOC Lease. 2 1113614.1 29 (iii) Premises Covered. The Premises covered by the TOC Lease consist of approximately 11,985 rentable square feet of space on the second floor of the building and include (a) the premises currently occupied by OCTA for operation of the OCTA 91 Express Lanes (defined in the TOC Lease as the “Existing Space” and measuring approximately 9,346 rentable square feet) and (b) the additional office space needed to accommodate RCTC and the operation of the RCTC 91 Express Lanes (defined in the TOC lease as the “Expansion Space” and comprised of Suite 260 and measuring approximately 2,639 square feet). Pursuant to the TOC Lease, Tenant has the right to use and occupy the Expansion Space commencing July 1, 2015, but has no obligation to pay Rent applicable to the Expansion Space prior to January 1, 2016. (iv) Tenant Improvements. The TOC Lease provides for the design and construction of improvements necessary for expansion of the Toll Operations Center to accommodate RCTC and the operation of the RCTC 91 Express Lanes (referred to in the TOC Lease as the “Tenant Improvements”). The “Tenant Work Letter” attached as Exhibit B to the TOC Lease governs the respective rights and obligations of the Landlord and Tenant with respect to the design and construction of the Tenant Improvements. Generally, the Tenant Work Letter provides for the Landlord to contract for and supervise construction of the Tenant Improvements at the Tenant’s cost (less a Tenant Improvement Allowance of up to $50,000), based on Construction Drawings, a Work Schedule, and a Cost Proposal approved in advance by the Tenant. (v) Rent. As defined in the TOC Lease, “Rent” payable to the Landlord is comprised of two components, “Base Rent” and “Additional Rent.” Base Rent is calculated at an approximate annual rate of Two Dollars and Ten Cents ($2.10) per square foot for the Existing Space and Two Dollars and Five Cents ($2.05) per square foot for Expansion Space, through August 31, 2016, and then increased annually thereafter by three percent (3%). Additional Rent consists mainly of Tenant’s proportionate share of certain estimated operating expenses, tax expenses, utilities costs, and other charges (referred to collectively herein as “CAM Expenses”) which are determined by the landlord on an annual basis, using 2015 as the base year. Pursuant to the TOC Lease, payments of Rent to the Landlord are due in advance on or before the first day of each month. The payment of Rent for the Expansion Space commences as of January 1, 2016. 3. TOC Expansion / Construction of Tenant Improvements A. Generally. The Tenant Work Letter governs the respective rights and obligations of the Landlord and Tenant with respect to (a) design of the Tenant Improvements, (b) preparation of Construction Drawings for the Tenant Improvements, (c) selection and retention of a Contractor and construction manager for construction of the Tenant Improvements, (d) development and approval of a Work Schedule and Cost Proposal for construction and installation of the Tenant Improvements, and (e) payment for the design, supervision, and construction of the Tenant Improvements. This Section 3 addresses RCTC’s and OCTA’s respective rights and responsibilities vis-à-vis one another pertaining to the design and construction of, and the payment for, the Tenant Improvements pursuant to the Tenant Work Letter. 3 1113614.1 30 B. Approvals. The exercise of any and all rights of the Tenant pursuant to the Tenant Work Letter shall require the mutual agreement of RCTC and OCTA. To the extent that the approval of the Tenant is authorized or required pursuant to the terms of the Tenant Work Letter, the Parties agree as follows: (i) OCTA shall obtain the written approval of RCTC prior to exercising any approval right pursuant to the Tenant Work Letter, including, without limitation, (a) selection of the Architect, (b) approval of the Final Space Plan, (c) approval of the Construction Drawings, (d) selection of the Contractor, (e) approval of the Cost Proposal, and/or (f) approval of the Work Schedule. (ii) RCTC shall diligently review and respond to approval requests from OCTA within such time periods as are needed to allow OCTA to respond to Landlord within the time frames set forth in the Tenant Work Letter. (iii) Provided RCTC provides timely responses to OCTA, OCTA shall provide all necessary or required responses to the Landlord within the time frames set forth in the Tenant Work Letter. C. Scope and Design of Tenant Improvements. (i) Scope of Tenant Improvements. OCTA and RCTC shall mutually agree on the scope of the Tenant Improvements to be completed pursuant to the Tenant Work Letter. Upon approval of RCTC, the Tenant Improvements may include certain improvements requested by OCTA pertaining to operation of the OCTA 91 Express Lanes (“OCTA-Specific Improvements”). (ii) Design of Tenant Improvements. RCTC shall be responsible for working with the Architect and Engineers retained by the Landlord to design the Tenant Improvements and prepare the Construction Drawings; provided, however, that all such Construction Drawings shall be subject to OCTA's prior review and approval, in its reasonable discretion. D. Cost of Tenant Improvements. (i) Costs Borne by RCTC. In accordance with Section 2.7.3(a) of the Cooperative Agreement, RCTC shall be responsible for all costs incurred for the design and construction of the Tenant Improvements pursuant to the Tenant Work Letter, except for those costs attributable to OCTA-Specific Improvements. The amount of such costs has not been definitively determined as of the date of this ROFA; however, it is preliminarily estimated by the Parties that RCTC’s share of the cost of the Tenant Improvements, including contingency, will not exceed the amount of Four Hundred Forty Six Thousand Two Hundred Forty Two Dollars ($446,242). (ii) Cost of OCTA-Specific Improvements. OCTA shall be responsible for the cost of that portion of the Tenant Improvements attributable to OCTA-Specific Improvements. OCTA and RCTC shall agree in advance as to the portion of the cost attributable to such OCTA-Specific Improvements. The amount of such costs has not been definitively determined as of the date of this ROFA; however, it is preliminarily estimated by the Parties that 4 1113614.1 31 OCTA’s share of the cost of the Tenant Improvements, including contingency, will not exceed the amount of One Hundred Ninety Four Thousand Six Hundred Nineteen Dollars ($194,619). (iii) Tenant Improvement Allowance. The Tenant Work Letter provides for a one-time “Tenant Improvement Allowance” from the Landlord of up to Fifty Thousand Dollars ($50,000) to partially offset the costs for design and construction of the Tenant Improvements. The Tenant Improvement Allowance shall be shared equally by RCTC and OCTA. (iv) Approval of Final Cost Proposal. Section 4.2 of the Tenant Work Letter provides for Tenant to approve a final “Cost Proposal” for the total estimated costs of design and construction of the Tenant Improvements prior to commencement of construction. RCTC and OCTA shall mutually agree on the amount of the Cost Proposal and/or any Partial Cost Proposal prior to its approval pursuant to the Tenant Work Letter. E. Payment for Cost of Tenant Improvements. (i) Tenant Work Letter Terms. Section 4.3 of the Tenant Work Letter provides that, upon its approval of the Cost Proposal, the Tenant must make a cash deposit to Landlord (defined in the Tenant Work Letter as the “Over-Allowance Amount”) equal to the difference between (a) one hundred ten percent (110%) of the amount of the Cost Proposal and (b) the remaining amount of the Tenant Improvement Allowance. In addition, the Tenant Work Letter requires the Tenant to pay Landlord upon request for any additional costs incurred as a result of any subsequent revisions, changes, or substitutions made to the Construction Drawings, the Tenant Improvements, or the Work Schedule. Finally, the Tenant Work Letter provides that the Landlord will return the amount of any overpayment by the Tenant following completion of the Tenant Improvements. (ii) Payment of Over-Allowance Amount. Upon its approval of the Cost Proposal, RCTC shall immediately remit to OCTA in immediately available funds an amount equal to RCTC’s share of the Over-Allowance Amount (excluding any portion attributable to OCTA-Specific Improvements, which shall be the responsibility of OCTA). Upon receipt of payment from RCTC, OCTA shall remit the full Over-Allowance Amount (including any portion attributable to OCTA-Specific Improvements) to the Landlord in accordance with the Tenant Work Letter. (iii) Payment of Additional Costs. In the event any additional amounts become payable to Landlord as a result of any subsequent revisions, changes, or substitutions made to the Construction Drawings, the Tenant Improvements, or the Work Schedule, or due to underpayment of the Over-Allowance Amount, RCTC shall remit the portion of such amounts not attributable to OCTA-Specific Improvements to OCTA no more than ten (10) days before payment is due to Landlord pursuant to the Tenant Improvement Letter. Provided OCTA receives timely payment from RCTC, OCTA shall pay the Landlord for all such additional amounts due (including any such portion attributable to OCTA-Specific Improvements) on or before the date such payment is due. (iv) Refund of Overpayment. In the event any overpayment related to the costs for the Tenant Improvements is returned to OCTA by the Landlord, OCTA shall pay RCTC 5 1113614.1 32 its proportionate share of such returned overpayment within ten (10) business days of receipt by OCTA. 4. Additional OCTA Equipment and Improvements The Parties acknowledge that, in addition to any OCTA-Specific Improvements included within the Tenant Improvements, OCTA may request, and RCTC may procure and install or complete, if acceptable to RCTC, certain furniture, fixtures, equipment, or other improvements to or in the Toll Related Facilities or that are part of the Additional Toll Improvements under RCTC's Systems Integration and Implementation Agreement with Cofiroute USA, LLC, or any other agreement of RCTC. OCTA’s share of the cost of these improvements, including contingency, will not exceed the amount of Five Hundred Fifteen Thousand Seven Hundred Ninety Three Dollars ($515,793). RCTC shall invoice OCTA for the cost of any such furniture, fixtures, equipment, or other improvements, and OCTA shall reimburse all approved costs within 30 days of receipt of an invoice from RCTC. If any such payment due from OCTA is not received by RCTC by the expiration of such thirty (30) day period, then in addition to any other remedies RCTC may be entitled to, OCTA shall pay RCTC a late charge equal to ten percent (10%) of the amount due. 5. Payments for Costs of TOC (Rent) A. Pre-Opening Date Payments. (i) In accordance with the Cooperative Agreement, prior to the Opening Date, RCTC shall reimburse OCTA for all Base Rent, Additional Rent, and other costs incurred by OCTA for the Expansion Space pursuant to the TOC Lease. Provided the Opening Date occurs on the Anticipated Opening Date, the total amount of such costs is anticipated to be approximately Sixty Seven Thousand Five Hundred Seventy Two Dollars ($67,572). (ii) Until September 1, 2016, the Rent payable by OCTA for the Expansion Space under the TOC Lease is anticipated to include the Base Rent and, potentially, certain minor additional charges incurred for items such as, but not limited to, air conditioning use outside of normal business hours and carpet cleaning (“Additional Charges”). Accordingly, commencing January 1, 2016 and continuing through August 31, 2016, RCTC shall make monthly installment payments to OCTA in the amount Five Thousand Four Hundred Ten Dollars ($5,410.00) on or before the first day of each month, which amount represents the monthly Base Rent attributable to the Expansion Space pursuant to the TOC Lease through August 31, 2016. RCTC shall also reimburse OCTA for fifty percent (50%) of any Additional Charges incurred. (iii) Commencing September 1, 2016, the Rent payable by OCTA for the Expansion Space under the TOC Lease is anticipated to include the Base Rent, as well as Additional Rent for estimated CAM Expenses in an as yet undetermined amount. Accordingly, commencing September 1, 2016 and continuing until the Opening Date (provided the Opening Date occurs prior to August 31, 2017), RCTC shall make monthly installment payments to OCTA in an amount equal to the sum of (a) Five Thousand Five Hundred Seventy Two Dollars ($5,572.00), which amount represents the monthly Base Rent attributable to the Expansion Space pursuant to the TOC Lease for the period September 1, 2016 through August 31, 2017, and (b) 6 1113614.1 33 any Additional Rent attributable to the Expansion Space payable by OCTA to the Landlord pursuant to the TOC Lease. The Parties anticipate that the monthly amount of Additional Rent attributable to the Expansion Space will be approximately Ninety Dollars ($90.00) as of September 1, 2016. Accordingly, RCTC’s total monthly installment payment to OCTA for this period is currently estimated to be approximately Five Thousand Six Hundred Sixty Two Dollars ($5,662.00), subject to adjustment based on the estimated CAM Expenses and actual amount of Additional Rent charged. (iv) Other than costs attributable to the Tenant Improvements and Rent for the Expansion Space, the Parties do not anticipate incurring any other incremental costs for the Toll Related Facilities prior to the Opening Date. However, if OCTA reasonably determines that OCTA has incurred other incremental cost increases for the Toll Related Facilities related to RCTC’s use thereof, OCTA shall invoice RCTC for such costs, and RCTC shall reimburse all approved costs within 30 days of receipt of an invoice from OCTA. (v) The Parties acknowledge that the above-stated amounts are calculated on the basis of the Anticipated Opening Date and shall be adjusted by the Parties, as needed, based on the actual Opening Date. B. Post Opening Date Payments - Rent. (i) In accordance with the Cooperative Agreement, following the Opening Date, all costs for Rent payable under the TOC Lease for the entire Premises will be shared by the Parties in accordance with the Percentage Cost Split. The Parties acknowledge and agree that Rent payable under the TOC Lease includes Base Rent (for which a schedule is included in the TOC Lease) and Additional Rent (which includes, but is not limited to, CAM Expenses that are subject to change, estimated on an annual basis, and paid in monthly installments along with the Base Rent). RCTC’s estimated proportionate share of the annual Rent for the TOC from the Anticipated Opening Date through January 31, 2018 is One Hundred Sixty Nine Thousand Four Hundred Eighty Three Dollars ($169,483). The Parties acknowledge that the foregoing estimate is subject to change based on the actual Opening Date, changes in the amount of estimated CAM Expenses, and other unforeseen expenses. (ii) Pursuant to the TOC Lease, all monthly Rent amounts (including the Base Rent and the monthly installment of estimated CAM Expenses) are payable on or before the first day of each month. RCTC shall pay to OCTA its proportionate share, based on the Percentage Cost Split, of all monthly Rent or other charges imposed by Landlord on or before the date such Rent or other charges are due from OCTA to the Landlord. If any such payment for monthly Rent or other charges due from RCTC is not received by OCTA on or before the date such Rent or other charges are due from OCTA to Landlord, in addition to any other remedies OCTA may be entitled to, RCTC shall pay OCTA a late charge equal to ten percent (10%) of the amount due. In addition to such late charge, any amounts owing from RCTC to OCTA hereunder which are not paid by the date they are due shall thereafter bear interest until paid at the Interest Rate described in Section 4.5 of the TOC Lease. 7 1113614.1 34 (iii) In the event of termination of the Cooperative Agreement by RCTC pursuant to the provisions of Section 9.4.1 thereof during the term of the TOC Lease, RCTC’s obligation to OCTA for the payment of Rent for the TOC shall be as follows: (a) For so long as RCTC continues to use the TOC, RCTC shall continue to pay its proportionate share of the Rent (including Base Rent and Additional Rent) for the entire Premises per the Percentage Cost Split in accordance with Sections 9.4.5(b) and 2.7 of the Cooperative Agreement. (b) Following relocation by RCTC of its portion of the Toll Related Facilities to another location, OCTA agrees to use its best efforts to either (1) sublease any portion of the Expansion Space no longer utilized or needed by OCTA as a result of such relocation or (2) renegotiate the terms of the TOC Lease to reduce the square footage of the Premises rented and the corresponding amount of Rent payable. If, notwithstanding such best efforts, OCTA incurs or continues to incur any net costs for Rent (including Base Rent and Additional Rent) attributable to that portion of the Expansion Space no longer utilized or needed by OCTA as a result of the relocation by RCTC of its portion of the Toll Related Facilities to another location, then, for remainder of the term of the TOC Lease, RCTC shall continue to pay OCTA an amount equal to such net costs for Rent incurred by OCTA. RCTC shall have no obligation to OCTA for Rent attributable to any portion of the Expansion Space that OCTA continues to utilize for the TOC following relocation by RCTC of its portion of the Toll Related Facilities to another location. In addition to the foregoing, RCTC shall reimburse OCTA for any direct costs pertaining to the Premises, other than Rent, that are incurred by OCTA as a direct result of relocation by RCTC of its portion of the Toll Related Facilities to another location. (iv) The Parties shall amend this ROFA, as needed, based on any future amendments to the TOC Lease agreed upon by the Parties. 8. Implementation of CSC Build Out; CSC Lease and Payments; Third Party Vendor Agreements. Terms for implementation of the Cooperative Agreement with respect to expansion of the CSC, the CSC lease and rent payments, and Third Party Vendor Agreements and payments shall be addressed in an amendment to this ROFA to be entered into at such time as the Parties have sufficient information to negotiate such terms. 9. General Matters. (a) Article 9, General Matters, of the Cooperative Agreement is incorporated herein by reference, and shall apply to this ROFA to the same extent as the provisions therein apply to the “Cooperative Agreement”. 8 1113614.1 35 [Signatures on following page] 9 1113614.1 36 SIGNATURE PAGE TO 91 EXPRESS LANES RCTC-OCTA FACILITY AGREEMENT (“ROFA”) BETWEEN RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND ORANGE COUNTY TRANSPORTATION AUTHORITY RIVERSIDE COUNTY ORANGE COUNTY TRANSPORTATION COMMISSION TRANSPORTATION AUTHORITY By: By: _______________________ Its: _________________________ Its: _______________________ APPROVED AS TO FORM: APPROVED AS TO FORM: BEST BEST & KRIEGER LLP WOODRUFF, SPRADLIN & SMART, APC By: ____________________________ By: _______________________ Counsel to the Riverside General Counsel to Orange County Transportation Commission County Transportation Authority 10 1113614.1 37 ATTACHMENT 238 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 AGENDA ITEM 9 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: September 28, 2015 TO: Western Riverside County Programs and Projects Committee FROM: Mark Lancaster, Right of Way Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Agreements for On-Call Right of Way Support Services STAFF RECOMMENDATION: This item is for the Committee to: 1) Award the following agreements to provide on-call right of way appraisal review services for a three-year term, in an amount not to exceed an aggregate value of $2 million; a) Agreement No. 16-31-001-00 with Bender Rosenthal, Inc.; b) Agreement No. 16-31-018-00 with Epic Land Solutions, Inc.; and c) Agreement No. 16-31-019-00 with Overland, Pacific & Cutler, Inc.; 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, or designee, to execute task orders awarded to contractors under the terms of the agreements; and 4) Forward to the Commission for final action. BACKGROUND INFORMATION: Right of way services are necessary to support current Commission projects and future Measure A highway and rail projects. In order to meet project schedules, control costs, and assure compliance with federal and state regulations and requirements related to right of way acquisition, staff recommends awarding contracts for on-call right of way support services with the work to be issued on an as-needed task order basis. Due to the amount of potential right of way support services required at this time, staff determined an award to several firms was in the Commission’s best interest. 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 and the ability to respond to the Commission’s needs for on-call right of support services as set forth under the terms of Request for Proposals (RFP) No. 16-31-001-00. Agenda Item 9 80 RFP No. 16-31-001-00 for on-call right of way support services was released by staff on July 31, 2015. 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 326 firms, 41 of which are located in Riverside County. Through the PlanetBids site, 64 firms downloaded the RFP; 17 of these firms are located in Riverside County. Staff responded to all questions submitted by potential proposers prior to the August 13 clarification deadline date. Six firms – Bender Rosenthal, Inc. (Sacramento); Briggs Field Services (Long Beach); Continental Field Services (Fresno); Epic Land Solutions, Inc. (Riverside); Overland, Pacific & Cutler, Inc. (Long Beach); and Security Land & Right of Way Services, Inc (Anaheim) – submitted proposals prior to the 2:00 p.m. submittal deadline on August 27. Five of the six firms were determined to have submitted responsive and responsible proposals. Utilizing the evaluation criteria set forth in the RFP, these five firms were evaluated and scored by an evaluation committee comprised of Commission and Caltrans staff. Accordingly, the evaluation committee recommends contract award to Bender Rosenthal, Inc.; Epic Land Solutions, Inc.; and Overland, Pacific & Cutler, Inc., as these firms earned the highest total evaluation scores. The multiple award, on-call, indefinite delivery/indefinite quantity task order type contracts do not guarantee work to any of the awardees; therefore, no funds are guaranteed to any consultant. Pre-qualified consultants will be selected for specific tasks based on information contained in their proposals and/or competitive fee proposals for the specific tasks. Services will be provided through the Commission’s issuance of contract task orders to the consultants on an as-needed basis. The Commission’s standard form professional services agreement will be entered into with the consultants subject to any changes approved by the Executive Director, and pursuant to legal counsel review. Staff oversight of the contract will maximize the effectiveness of the consultants and minimize costs to the Commission. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2015/16 FY 2016/17+ Amount: $ 330,000 $1,670,000 Source of Funds: Measure A, State Transportation Improvement Program, Federal, TUMF Budget Adjustment: No N/A GL/Project Accounting No.: 003027 81403 00014 0000 262 31 81403 003029 81403 00014 0000 262 31 81403 005127 81403 00014 0000 210 72 81403 007201 81403 00014 0000 720 67 81403 005104 81403 00014 0000 210 72 81403 Fiscal Procedures Approved: Date: 09/18/2015 Attachment: Standard Form On-Call Professional Services Agreement Agenda Item 9 81 AGREEMENT NO. 16-31-001-00 PROFESSIONAL SERVICES AGREEMENT WITH FHWA AND/OR FTA FUNDING/ASSISTANCE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH [CONSULTANT] FOR ON-CALL RIGHT OF WAY SUPPORT SERVICES 1.0 PARTIES AND DATE. This Agreement is made and entered into this ___ day of _______, 2015, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and [NAME OF FIRM] ("Consultant"), a [LEGAL STATUS OF CONSULTANT, e.g., Delaware corporation]. 2.0 RECITALS. 2.1 On November 8, 1988 the voters of Riverside County approved Measure A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax (the "Tax") to fund transportation programs and improvements within the County of Riverside, and adopting the Riverside County Transportation Improvement Plan (the "Plan"). 2.2 Pursuant to Public Utility Code Sections 240000 et seq., the Commission is authorized to allocate the proceeds of the Tax in furtherance of the Plan. 2.3 On November 5, 2002, the voters of Riverside County approved an extension of the Measure A tax for an additional thirty (30) years for the continued funding of transportation and improvements within the County of Riverside. 2.4 A source of funding for payment for professional services provided under this Agreement may be federal funds from the United States Department of Transportation. This Commission may withhold payment of any federal funds hereunder until the certification shown in Exhibit “F” attached hereto and incorporated herein by reference, is executed. 2.5 Consultant desires to perform and assume responsibility for the provision of certain professional services required by the Commission on the terms and conditions set forth in this Agreement and in the task order(s) to be issued pursuant to this Agreement and executed by the Commission and the Consultant (“Task Order”). Consultant represents that it is experienced in providing on-call [INSERT 17336.00023\9602162.1 82 DESCRIPTION OF SERVICES] services to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. 2.6 The Commission desires to engage Consultant to render such services on an on-call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this Agreement for future projects as set forth herein (each such project shall be designated a “Project” under this Agreement). 3.0 TERMS. 3.1 General Scope of Services. Consultant shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise, and incidental and customary work necessary to fully and adequately supply the professional on-call [INSERT DESCRIPTION OF SERVICE] necessary for the Project ("Services"). The Services are more generally described in Exhibit "A" attached hereto and incorporated herein by reference. The Services shall be more particularly described in the individual Task Orders issued by the Commission’s Executive Director or designee. No Services shall be performed unless authorized by a fully executed Task Order. All Services shall be subject to, and performed in accordance with, this Agreement, the relevant Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.2 Commencement of Services. The Consultant shall commence work within five (5) days of receiving a fully executed Task Order from Commission. 3.2.1 In the event federal funding will be used for any Task Order, and to the extent Caltrans procedures apply in connection therewith, issuance of a “Notice to Proceed” on the Task Order or written authorization by the Commission’s designated project manager may be contingent upon completion and approval of a pre-award audit. Any questions raised during the pre-award audit for the Task Order shall be resolved before the Commission will consider approval of the Task Order. Any federal aid provided under a Task Order is contingent on meeting all federal requirements and could be withdrawn, thereby entitling the Commission to terminate the Task Order, if the procedures are not completed. Consultant’s files shall be maintained in a manner to facilitate Federal and State process reviews. In addition, the applicable federal agency, or Caltrans acting on behalf of a federal agency, may require that prior to performance of any work for which federal reimbursement is requested and provided, that said federal agency or Caltrans must give to Commission an “Authorization to Proceed”. If any post-Task Order award audit recommendations are received by the Commission from Caltrans, Consultant shall make all necessary adjustments to conform to the audit recommendations. Refusal by Consultant to incorporate the interim audit or post-Task Order award recommendations of Caltrans will be considered a breach of the Task Order and this Agreement and cause for termination or suspension of the Services. 3.3 Term. The term of this Agreement shall be from the date first set forth above or the date of issuance of the Notice to Proceed by the Commission, whichever 2 17336.00023\9602162.1 83 occurs first, to the later of February 1, 2019, or the date on which all Services under a Task Order issued prior to the foregoing date have been completed, unless earlier terminated as provided herein. No Task Orders will be issued after [INSERT AGREEMENT EXPIRATION DATE]. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines set forth in the Task Orders. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. Notwithstanding the foregoing, Caltrans and/or FHWA funded Task Orders shall be completed within thirty-six (36) months of the Effective Date, unless approval of Caltrans is obtained from the Commission. 3.4 Commission's Representative. The Commission hereby designates the [INSERT NAME OR TITLE], or his or her designee, to act as its Representative for the performance of this Agreement ("Commission’s Representative"). Commission’s Representative shall have the authority to act on behalf of the Commission for all purposes under this Agreement. Commission's Representative shall also review and give approval, as needed, to the details of Consultant's work as it progresses. Consultant shall not accept direction or orders from any person other than the Commission’s Representative or his or her designee. 3.5 Consultant's Representative. Consultant hereby designates [INSERT NAME OR TITLE], or his or her designee, to act as its Representative for the performance of this Agreement ("Consultant’s Representative"). Consultant's Representative shall have full authority to act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his professional skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement and as described in the relevant Task Order. Consultant shall work closely and cooperate fully with Commission's Representative and any other agencies which may have jurisdiction over, or an interest in, the Services. Consultant's Representative shall be available to the Commission staff at all reasonable times. Any substitution in Consultant's Representative shall be approved in writing by Commission's Representative. 3.6 Substitution of Key Personnel. Consultant has represented to the Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval by the Commission. In the event that the Commission and Consultant cannot agree as to the substitution of the key personnel, the Commission shall be entitled to terminate this Agreement for cause, pursuant to the provisions of Section 3.14. The key personnel for performance of this Agreement are: [INSERT NAME(S)] 3 17336.00023\9602162.1 84 3.7 Preliminary Review of Work. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Agreement shall be submitted to the Commission's Representative in draft form, and the Commission may require revisions of such drafts prior to formal submission and approval. In the event plans and designs are to be developed as part of the Project, final detailed plans and designs shall be contingent upon obtaining environmental clearance as may be required in connection with Federal funding. In the event that Commission's Representative, in his sole discretion, determines the formally submitted work product to be not in accordance with the standard of care established under this contract, Commission's Representative may require Consultant to revise and resubmit the work at no cost to the Commission. 3.8 Appearance at Hearings. If and when required by the Commission, Consultant shall render assistance at public hearings or other meetings related to the Project or necessary to the performance of the Services. However, Consultant shall not be required to, and will not, render any decision, interpretation or recommendation regarding questions of a legal nature or which may be construed as constituting a legal opinion. 3.9 Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California during the term of this Agreement. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Consultant further represents and warrants to the Commission that its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the Commission, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant’s errors and omissions. Any employee of Consultant or its sub-consultants who is determined by the Commission to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the Commission, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.10 Opportunity to Cure. Commission may provide Consultant an opportunity to cure, at Consultant's expense, all errors and omissions which may be disclosed during Project implementation. Should Consultant fail to make such correction in a 4 17336.00023\9602162.1 85 timely manner, such correction may be made by the Commission, and the cost thereof charged to Consultant. 3.11 Inspection of Work. Consultant shall allow the Commission's Representative to inspect or review Consultant's work in progress at any reasonable time. 3.12 Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term set forth in Section 3.3, the Commission shall give Consultant a written Notice of Final Acceptance. Upon receipt of such notice, Consultant shall incur no further costs hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily completed all Services required under the terms of this Agreement. In the event copyrights are permitted under this Agreement, then in connection with Federal funding, it is hereby acknowledged and agreed that the United States Department of Transportation shall have the royalty-free non-exclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for governmental purposes. 3.13 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. For example, and not by way of limitation, Consultant shall keep itself fully informed of and in compliance with all implementing regulations, design standards, specifications, previous commitments that must be incorporated in the design of the Project, and administrative controls including those of the United States Department of Transportation. Compliance with Federal procedures may include completion of the applicable environmental documents and approved by the United States Department of Transportation. For example, and not by way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or published Record of Decision may be required to be approved and/or completed by the United States Department of Transportation. For Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.14 Termination. 3.14.1 Notice; Reason. Commission may, by written notice to Consultant, terminate this Agreement, in whole or in part, at any time by giving written notice to Consultant of such termination, and specifying the effective date thereof (“Notice of Termination”). Such termination may be for Commission's convenience or because of 5 17336.00023\9602162.1 86 Consultant's failure to perform its duties and obligations under this Agreement, including, but not limited to, the failure of Consultant to timely perform Services pursuant to the Schedule of Services described in Section 3.15 of this Agreement. Consultant may not terminate this Agreement except for cause. 3.14.2 Discontinuance of Services. Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein and shall deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 3.14.3 Effect of Termination For Convenience. If the termination is to be for the convenience of the Commission, the Commission shall compensate Consultant for Services fully and adequately provided through the effective date of termination. Such payment shall include a prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit on unperformed Services. Consultant shall provide documentation deemed adequate by Commission's Representative to show the Services actually completed by Consultant prior to the effective date of termination. This Agreement shall terminate on the effective date of the Notice of Termination. 3.14.4 Effect of Termination for Cause. If the termination is for cause, Consultant shall be compensated for those Services which have been fully and adequately completed and accepted by the Commission as of the date the Commission provides the Notice of Termination. In such case, the Commission may take over the work and prosecute the same to completion by contract or otherwise. Further, Consultant shall be liable to the Commission for any reasonable additional costs incurred by the Commission to revise work for which the Commission has compensated Consultant under this Agreement, but which the Commission has determined in its sole discretion needs to be revised, in part or whole, to complete the Project because it did not meet the standard of care established in Section 3.9. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 3.14.5 Cumulative Remedies. The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 3.14.6 Procurement of Similar Services. In the event this Agreement is terminated, in whole or in part, as provided by this Section, the Commission may procure, upon such terms and in such manner as it deems appropriate, services similar to those terminated. 3.14.7 Waivers. Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. 6 17336.00023\9602162.1 87 3.15 Schedule and Progress of Services. 3.15.1 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with any specific schedule that shall be set forth in the Task Order (“Schedule of Services”). Consultant represents that it has the professional and technical personnel to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with each Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of Commission's Representative, Consultant shall provide a more detailed schedule of anticipated performance to meet the relevant Schedule of Services. 3.15.2 Modification of the Schedule. Consultant shall regularly report to the Commission, through correspondence or progress reports, its progress in providing required Services within the scheduled time periods. Commission shall be promptly informed of all anticipated delays. In the event that Consultant determines that a schedule modification is necessary, Consultant shall promptly submit a revised Schedule of Services for approval by Commission's Representative. 3.15.3 Trend Meetings. Consultant shall conduct trend meetings with the Commission’s Representative and other interested parties, as may be requested by the Commission. These trend meetings will encompass focused and informal discussions concerning scope, schedule, and current progress of Services, relevant cost issues, and future Project objectives. Consultant shall be responsible for the preparation and distribution of meeting agendas to be received by the Commission and other attendees no later than three (3) working days prior to the meeting. 3.15.4 Progress Reports. As part of its monthly invoice, Consultant shall submit a progress report, in a form determined by the Commission, which will indicate the progress achieved during the previous month in relation to the relevant Schedule of Services, as applicable. If applicable, submission of such progress report by Consultant shall be a condition precedent to receipt of payment from the Commission for each monthly invoice submitted. 3.16 Delay in Performance. 3.16.1 Excusable Delays. Should Consultant be delayed or prevented from the timely performance of any act or Services required by the terms of the Agreement by reason of acts of God or of the public enemy, acts or omissions of the Commission or other governmental agencies in either their sovereign or contractual capacities, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather, performance of such act shall be excused for the period of such delay. 3.16.2 Written Notice. If Consultant believes it is entitled to an extension of time due to conditions set forth in subsection 3.16.1, Consultant shall provide written notice to the Commission within seven (7) working days from the time Consultant 7 17336.00023\9602162.1 88 knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of Consultant to provide such timely notice shall constitute a waiver by Consultant of any right to an excusable delay in time of performance. 3.16.3 Mutual Agreement. Performance of any Services under this Agreement may be delayed upon mutual agreement of the Parties. Upon such agreement, Consultant's Schedule of Services shall be extended as necessary by the Commission. Consultant shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 3.17 Status of Consultant/Subconsultants; Assignment; Transfer. 3.17.1 Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and not as an employee, agent or representative of the Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries and other amounts due such personnel in connection with their performance of Services and as required by law. Consultant shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, disability insurance, and workers' compensation insurance. 3.17.2 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein, without the prior written consent of the Commission. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.17.3 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. If Consultant wishes to use a firm as a subcontractor which is not specified in the proposal upon which this Agreement was awarded, prior written approval must be obtained from the Commission. The Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 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 8 17336.00023\9602162.1 89 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. 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 9 17336.00023\9602162.1 90 Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 3.18.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.18.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 3.19 Indemnification. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold Commission, its directors, officials, officers, employees, consultants, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to alleged negligent acts, omissions, or willful misconduct of Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of consequential damages, expert witness fees, and attorneys' fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Commission, its directors, officials, officers, employees, consultants, agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against Commission or its directors, officials, officers, employees, consultants, agents, or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse Commission and its directors, officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Commission, its directors, officials officers, employees, consultants, agents, or volunteers. Notwithstanding the 10 17336.00023\9602162.1 91 foregoing, to the extent Consultant’s Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. Consultant’s obligations as set forth in this Section 3.19 shall survive expiration or termination of this Agreement. 3.20 Insurance. 3.20.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section, in 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. 3.20.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 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. 3.20.3 Professional Liability. Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an amount not less than $1,000,000 per claim. This insurance shall be endorsed to include contractual liability applicable to this 11 17336.00023\9602162.1 92 Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. 3.20.4 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) aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent consultants coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (C) Workers’ Compensation and Employers Liability Coverage. 12 17336.00023\9602162.1 93 (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, its directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. (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 13 17336.00023\9602162.1 94 continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims- made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. Each insurance policy required by this Agreement shall be endorsed to state that: 3.20.5 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. 3.20.6 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. 3.20.7 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 14 17336.00023\9602162.1 95 reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.20.8 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. 3.20.9 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 lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.21 Fees and Payment. 3.21.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. Compensation shall be on the basis of direct costs plus a fixed fee as further set forth in Exhibit “C”. The total compensation per Task Order shall be set forth in the relevant Task Order, and shall not exceed said amount without written approval of the Commission’s Executive Director. 3.21.2 Payment of Compensation. Consultant shall submit a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the Statement. Charges specific to each Milestone listed in the Schedule of Services shall be listed separately on an attachment to each statement. Each statement shall be accompanied by a monthly progress report and spreadsheets showing hours expended for each task for each month and the total Project to date. Each statement shall include a cover sheet bearing a certification as to 15 17336.00023\9602162.1 96 the accuracy of the statement signed by the Consultant's Project Manager or other authorized officer. 3.21.3 Additional Work. Any work or activities that are in addition to, or otherwise outside of, the Services to be performed pursuant to this Agreement shall only be performed pursuant to a separate agreement between the parties. Notwithstanding the foregoing, the Commission’s Executive Director may make a change to the Agreement, other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a change which is “outside the scope” of the Agreement; in other words, work which should not be regarded as having been fairly and reasonably within the contemplation of the parties when the Agreement was entered into. An example of a change which is not a Cardinal Change would be where, in a contract to construct a building there are many changes in the materials used, but the size and layout of the building remains the same. Cardinal Changes are not within the authority of this provision to order, and shall be processed by the Commission as “sole source” procurements according to applicable law, including the requirements of FTA Circular 4220.1D, paragraph 9(f). A. In addition to the changes authorized above, a modification which is signed by Consultant and the Commission’s Executive Director, other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable adjustment to the Agreement price, delivery schedule and other terms resulting from the issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other agreements of the parties modifying the terms of this Agreement (“Bilateral Contract Modification”). B. Consultant shall not perform, nor be compensated for any change, without written authorization from the Commission’s Executive Director as set forth herein. In the event such a change authorization is not issued and signed by the Commission’s Executive Director, Consultant shall not provide such change. 3.21.4 No Payment Prior to Approval of Work. No payment shall be made to Consultant prior to approval of any work, nor for work performed prior to approval and execution of this Agreement. 3.21.5 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission's Representative. 3.21.6 Subcontracts. All subcontracts in excess of $25,000 shall contain the provisions of this Section 3.22 and the attached Exhibit “C”. 3.22 Prohibited Interests. 3.22.1 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 16 17336.00023\9602162.1 97 making of this Agreement. For breach or violation of this warranty, the Commission shall have the right to rescind this Agreement without liability. 3.22.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of the Commission, during the term of his or her service with the Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.22.3 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. 3.22.4 Covenant Against Contingent Fees. As required in connection with federal funding, the Consultant warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Commission shall have the right to terminate this Agreement without liability pursuant to Section 3.14, or at its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 3.22.5 Covenant Against Expenditure of Local Agency, State or Federal Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and belief no state, federal or local agency appropriated funds have been paid, or will be paid by or on behalf of the Consultant to any person for the purpose of influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the award of any state or federal contract, grant, loan, or cooperative agreement, or the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement. A. If any funds other than federal appropriated funds have been paid, or will be paid to any person for the purpose of influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this Agreement, the Consultant shall complete and submit the attached Exhibit "I", Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached instructions. 17 17336.00023\9602162.1 98 B. The Consultant's certification provided in this section is a material representation of fact upon which reliance was placed when this Agreement was entered into, and is a prerequisite for entering into this Agreement pursuant to Section 1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the disclosure and certification requirements set forth in Section 1352, Title 31, US. Code may result in a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. C. The Consultant also agrees by signing this Agreement that he/she shall require that the language set forth in this Section 3.23.5 be included in all Consultant subcontracts which exceed $100,000, and that all such subcontractors shall certify and disclose accordingly. 3.23 Accounting Records. In accordance with State and Federal law, Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under this Agreement. As required in connection with federal funding, the Federal Acquisition Regulations in Title 48, CFR 31 shall be the governing factors regarding allowable elements of cost. All such records shall be clearly identifiable. Consultant shall allow a representative of the Commission, the State, the State Auditor, or any duly authorized representative of the Federal government having jurisdiction under Federal or State laws or regulations (including the basis of Federal funding in whole or in part) during normal business hours to examine, audit, and make transcripts or copies of any and all ledgers and books of account, invoices, vouchers, canceled checks, and any other records or documents created pursuant to this Agreement. All such information shall be retained by Consultant for at least three (3) years following termination of this Agreement. Following final settlement of the contract accounts with the United States Department of Transportation under this Agreement, such records and documents may be microfilmed at the option of the Commission, but in any event shall be retained for said three (3) year period after processing of the final voucher by the United States Department of Transportation. Subcontracts in excess of $25,000 shall contain this provision. 3.23.1 The Consultant also agrees to comply with Federal procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. 3.23.2 Any costs for which payment has been made to the Consultant that are determined by subsequent audit to be unallowable under 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31 et seq. or under 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, are subject to repayment by the Consultant to the Commission. 3.23.3 Any dispute concerning a question of fact arising under an interim or post audit of this contract that is not disposed of by agreement shall be reviewed by the Commission’s Chief Financial Officer. Not later than thirty (30) days after issuance of the final audit report, Consultant may submit a request in writing for review of 18 17336.00023\9602162.1 99 unresolved audit issues by the Commission’s Chief Financial Officer. Neither the pendency of an audit dispute nor its consideration by the Commission will excuse Consultant from full and timely performance in accordance with the terms of this Agreement. Consultants and subconsultant contracts, including cost proposals and indirect cost rates (ICR), are subject to audits or reviews including a contract audit, an incurred cost audit or a certified public accountant ICR audit workpaper review. If selected for audit or review, the contract, cost proposal and ICR and related workpapers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instance of a certified public accountant ICR audit workpaper review, it is the Consultant’s responsibility to ensure federal, state and Commission officials are allowed full access to the certified public accountant’s workpapers. The contract, cost proposal and ICR shall be adjusted by Consultant and approved by the Commission to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by the Commission at its sole discretion. Refusal by Consultant to abide by the requirements of this Section shall be deemed a material breach of this Agreement and shall be cause for termination of the Agreement and disallowance of prior reimbursed costs. 3.24 Funding Requirements. It is mutually understood between the parties hereto that this Agreement may have been entered into prior to the appropriation of funds in order to avoid delays. This Agreement is valid and enforceable only if sufficient funds are made available to the Commission and may be terminated in the sole discretion of the Commission in the event funding is unavailable or reduced. This Agreement is subject to any additional restrictions, limitations, conditions or statutes enacted by the Federal government, the State or any public agency with jurisdiction that may affect the provisions, terms or funding of this Agreement in any manner. It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be amended to reflect any reduction in funds. 3.25 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 3.26 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. 3.27 Right to Employ Other Consultants. Commission reserves the right to employ other consultants in connection with the Project. 3.28 Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 19 17336.00023\9602162.1 100 3.29 Attorneys' Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys' fees and, all other costs of such actions. 3.30 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.31 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. 3.32 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: [INSERT CONTACT INFORMATION] Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty- eight (48) hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.33 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. 3.34 Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.35 Entire Agreement. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof and supersedes all prior negotiations, agreements or understandings. 3.36 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. 20 17336.00023\9602162.1 101 3.37 Provisions Applicable When Federal Department of Transportation Funds Are Involved. When funding for the Services provided by this Agreement are provided, in whole or in part, from the United States Department of Transportation, Consultant shall also fully and adequately comply with all applicable federal requirements including, as applicable and without limitation, the provisions included in Exhibits “D” and “E” (Federal Department of Transportation Requirements and California Department of Transportation (Caltrans) DBE program requirements, and the Federal Transit Administration Requirements) and shall complete, as applicable, the forms included in Exhibits “G”, “H”, and “I”. 3.38 Additional State Law Provisions. 3.38.1 Prevailing Wages. By its execution of this Agreement, Consultant certifies that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et 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. Copies of the prevailing rate of per diem wages are on file at the Commission’s offices. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.38.2 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. 3.38.3 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 21 17336.00023\9602162.1 102 ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant 3.39 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates, kickbacks or other unlawful consideration, either promised or paid to any Commission employee. For breach or violation of this warranty, the Commission shall have the right in its sole discretion: (1) to terminate the Agreement without liability; (2) to pay only for the value of the work actually performed; or (3) to deduct from the contract price; or (4) otherwise recover the full amount of such rebate, kickback or other unlawful consideration. 3.40 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. 3.41 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, shall survive any such expiration or termination. 3.42 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.43 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. 3.44 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 22 17336.00023\9602162.1 103 3.45 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. 3.46 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. [Signatures on following page] 23 17336.00023\9602162.1 104 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR ON-CALL RIGHT OF WAY SUPPORT SERVICES WITH [CONSULTANT] IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY [INSERT CONSULTANT] TRANSPORTATION COMMISSION By: __________________________ By: ____________________________ [INSERT NAME], Chair Signature ____________________________ Name ____________________________ Title Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP Its: Secretary General Counsel 24 17336.00023\9602162.1 105 EXHIBIT "A" - SCOPE OF SERVICES [to be inserted] EXHIBIT "B" - SCHEDULE OF SERVICES [to be inserted] EXHIBIT "C" - COMPENSATION AND PAYMENT [to be inserted] EXHIBIT "D" - FEDERAL DEPARTMENT OF TRANSPORTATION FHWA AND CALTRANS REQUIREMENTS [Federal provisions from RFP to be inserted] EXHIBIT "E" - FEDERAL TRANSIT ADMINISTRATION REQUIREMENTS [federal provisions from RFP to be inserted] EXHIBIT "F" - CERTIFICATE OF CONSULTANT [Federal form to be inserted] EXHIBIT "G" - DISADVANTAGED BUSINESS ENTERPRISE (DBE) FORMS/COMMITMENTS [Federal form to be inserted] EXHIBIT "H" - DISCLOSURE OF LOBBYING ACTIVITIES [Federal form to be inserted] EXHIBIT “I” - CERTIFICATION OF OFFEROR REGARDING DEBARMENT, SUSPENSION AND OTHER RESPONSIBILITY MATTERS [Federal form to be inserted] Exhibit 17336.00023\9602162.1 106 AGENDA ITEM 10 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: September 28, 2015 TO: Western Riverside County Programs and Projects Committee FROM: Dan Mathers, Facilities Administrator THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Agreement for Station Electrical Services STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement No. 16-24-005-00 to Elite Electric, Inc. for the provision of station electrical maintenance services and capital improvements, for a three-year term, plus two two-year options to extend the agreement, in an amount of $603,700 for maintenance and repairs, and $935,000 for capital improvements, plus a contingency of $153,870 for a total amount not to exceed $1,692,570; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement, including option years, on behalf of the Commission; 3) Authorize the Executive Director, or designee, to execute task orders awarded to the contractor under the terms of the agreements; 4) Authorize the Executive Director, or designee, to approve contingency work up to the total amount not to exceed as required for these services; and 5) Forward to the Commission for final action. BACKGROUND INFORMATION: The Commission owns and operates five commuter rail stations and the Perris Transit Center in Riverside County. Additionally, three new Commission-owned and operated Perris Valley Line (PVL) stations and the rail portion of the Perris Transit Center will begin operations in December 2015. Station lighting and electrical maintenance services are essential to provide continued safety and security for Metrolink commuters, as well as preserving and maintaining the Commission’s property. The Commission requires the services of a qualified contractor to provide quarterly electrical and lighting maintenance services, annual solar panel and battery-backed emergency lighting systems maintenance and testing, tri-annual infrared survey and reporting, and on-call electrical and lighting maintenance services, which includes the cleaning of station lights and the repair or replacement of all defective lighting system components and fixtures. Agenda Item 10 107 Under Commission supervision, quarterly field inspections will be conducted at each station for a fixed price in order to identify all necessary repairs. Based upon the successful contractor’s proposed labor rates, equipment costs, material costs, and associated markup, the contractor will then clean, repair, and/or replace all broken or defective lighting and remedy any electrical issues identified during the quarterly inspection. Alternatively, on-call services would be used on an as-needed basis and provided through the Commission’s issuance of a contract task order to address repairs required between quarterly inspections. Pricing for work completed on an on-call basis will also be based upon fixed labor rates and a pre-established markup on materials. Staff has also identified additional electrical lighting capital improvements that will be funded with Proposition 1B Public Transportation, Modernization, Improvement, and Service Enhancement Account (PTMISEA) grant funds. The improvements consist of the conversion of all lighting elements at the existing stations and the new PVL stations, including the Perris Transit Center, from high pressure sodium, metal halide, halogen, incandescent, and fluorescent elements to LED lighting elements, substantially reducing energy consumption, carbon footprint, and lighting maintenance costs. Procurement Process Staff determined the weighted factor method of source selection to be the most appropriate for this procurement, as it allows the Commission to identify the most advantageous proposal with price and other factors considered. Non-price factors include elements such as qualifications of firm, personnel, and the ability to respond to the Commission’s needs for electrical services as set forth under the terms of request for proposals (RFP) No. 16-24-005-00. RFP No. 16-24-005-00 for commuter rail station electrical services was released by staff on August 6, 2015. 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 45 firms, ten of which are located in Riverside County. Through the PlanetBids site, ten firms downloaded the RFP; two of these firms are located in Riverside County. A pre-bid conference was held on August 19 and attended by one firm. Staff responded to all questions submitted by potential proposers prior to the August 25 clarification deadline date. Three firms – Baker Electric (Escondido); Elite Electric, Inc. (Riverside); and Wesco Electric (Torrance) – submitted proposals prior to the 2:00 p.m. submittal deadline on September 3. Two of the three firms were determined to have submitted responsive and responsible proposals. Utilizing the evaluation criteria set forth in the RFP, the two firms were evaluated and scored by an evaluation committee comprised of Commission and Bechtel staff. As a result of the evaluation committee’s assessment of the written proposals including price, the evaluation committee recommends contract award to Elite Electric, Inc. to perform station electrical maintenance services and capital improvements for a three-year term, plus two two- year options to extend the agreement, as this firm earned the highest total evaluation score. Agenda Item 10 108 Elite Electric, Inc. is the Commission’s incumbent electrical maintenance contractor and has been providing satisfactory services to the Commission’s rail stations. The Commission’s standard form professional services agreement will be entered into with the consultant subject to any changes approved by the Executive Director, and pursuant to legal counsel review. Outside of the routine electrical maintenance, on-call services, including capital improvements, will be provided through the Commission’s issuance of contract task orders to Elite Electric, Inc. on an as-needed basis. Staff oversight of the contract will maximize the effectiveness of the consultants and minimize costs to the Commission. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2015/16 FY 2016/17+ Amount: $ 624,200 $1,068,370 Source of Funds: Local Transportation Fund funds, Proposition 1B PTMISEA grant funds Budget Adjustment: No N/A GL/Project Accounting No.: 2440XX 73315 00000 0000 103 24 73301 Fiscal Procedures Approved: Date: 09/21/2015 Attachment: Standard Form Professional Services Agreement Agenda Item 10 109 Agreement No. 16-24-005-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR STATION ELECTRICAL MAINTENANCE SERVICES WITH ELITE ELECTRIC, INC. 1. PARTIES AND DATE. This Agreement is made and entered into this day of , 2015, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and ELITE ELECTRIC, INC. ("Contractor"), a California Corporation. 2. RECITALS. 2.1 Contractor 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. Contractor represents that it is a professional Contractor, experienced in providing electrical maintenance 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 Contractor to render electrical maintenance services at the Commission owned commuter rail stations ("Project") as set forth herein. 3. TERMS. 3.1 General Scope of Services. Contractor 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. Any services performed pursuant to a Task Order (TO) issued pursuant to Section 4.0 of Exhibit "A" shall be subject to all terms and conditions of this Agreement, 17336.00000\8752982.2 110 including the indemnification and defense obligations, and shall be considered "Services" as that term is defined under the Agreement. 3.2 Term. The term of this Agreement shall be from the date first specified above to ________________, unless earlier terminated as provided herein. The Commission, at its sole discretion, may extend this Agreement for two (2) two (2)- year periods. Contractor shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. 3.3 Schedule of Services. Contractor shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "A" attached hereto and incorporated herein by reference. Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Contractor's conformance with the Schedule, the Commission shall respond to Contractor's submittals in a timely manner. Upon request of the Commission, Contractor 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 Contractor under its supervision. Contractor will determine the means, method and details of performing the Services subject to the requirements of this Agreement. Commission retains Contractor on an independent contractor basis and Contractor is not an employee of Commission. Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall not be employees of Commission and shall at all times be under Contractor's exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. 3.5 Conformance to Applicable Requirements. All work prepared by Contractor shall be subject to the approval of Commission. 3.6 Substitution of Key Personnel. Contractor 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, Contractor may substitute other personnel of at least equal competence and experience upon written approval of Commission. In the event that Commission and Contractor 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: __________________________________. 2 17336.00000\8752982.2 111 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. Contractor shall not accept direction from any person other than Commission's Representative or his or her designee. 3.8 Contractor’s Representative. Contractor hereby designates [___INSERT NAME OR TITLE___], or his or her designee, to act as its representative for the performance of this Agreement ("Contractor’s Representative"). Contractor’s Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor’s Representative shall supervise and direct the Services, using his 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. Contractor agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, Contractors and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Contractor 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. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services and that such licenses and approvals shall be maintained throughout the term of this Agreement. Contractor 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 Contractor’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 Contractor’s errors and omissions. 3.11 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to Commission, Contractor shall be solely responsible for all costs arising therefrom. Contractor shall defend, indemnify and hold Commission, its 3 17336.00000\8752982.2 112 officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.12 Insurance. 3.12.1 Time for Compliance. Contractor shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section, in a form and with insurance companies acceptable to the Commission. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.12.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Contractor, its agents, representatives, employees or subcontractors. Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) if Contractor has an employees, Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 3.12.3 [Reserved] 3.12.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: 4 17336.00000\8752982.2 113 (A) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury; (3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent Contractors coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Contractor or for which the Contractor is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way. (C) Workers’ Compensation and Employers Liability Coverage. (i) Contractor certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. 5 17336.00000\8752982.2 114 (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. (D) All Coverages. (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, its directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Contractor shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Contractor shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Contractor shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Contractor shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Contractor shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by 6 17336.00000\8752982.2 115 another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Contractor, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Contractor pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Contractor or Commission will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Contractor to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. Each insurance policy required by this Agreement shall be endorsed to state that: 3.12.5 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, Contractor shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.12.6 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. Contractor shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 7 17336.00000\8752982.2 116 3.12.8 SubContractor Insurance Requirements. Contractor shall not allow any subcontractors or subContractors to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subContractors shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Contractor, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subContractors. 3.13 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.14 Fees and Payment. 3.14.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto. 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. Contractor shall submit to Commission a monthly statement which indicates work completed and hours of Services rendered by Contractor. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.14.3 Reimbursement for Expenses. Contractor 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, 8 17336.00000\8752982.2 117 Commission may request that Contractor perform Extra Work. As used herein, "Extra Work" means any work which is determined by Commission to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Contractor shall not perform, nor be compensated for, Extra Work without written authorization from Commission's Executive Director. 3.15 Accounting Records. Contractor 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. Contractor shall allow a representative of Commission during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof. Upon termination, Contractor shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Contractor shall be entitled to no further compensation. Contractor 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 Contractor to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Contractor in connection with the performance of Services under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request. 3.16.3 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: 9 17336.00000\8752982.2 118 CONTRACTOR: 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. 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 Contractor under this Agreement (“Documents & Data”). Contractor 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. Contractor represents and warrants that Contractor has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Contractor or provided to Contractor 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 Contractor under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Contractor under this Agreement. 10 17336.00000\8752982.2 119 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 Contractor, and whether or not developed by Contractor. Contractor will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Contractor shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Contractor of any and all right to the above referenced Intellectual Property. Should Contractor, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Contractor 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 Contractor. However, unless otherwise identified and stated prior to execution of this Agreement, Contractor 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 Contractor a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Contractor 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 Contractor in connection with the performance of this Agreement shall be held confidential by Contractor. Such materials shall not, without the prior written consent of Commission, be used by Contractor 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 Contractor which is otherwise known to Contractor or is generally known, or has become known, to the related industry shall be deemed confidential. Contractor shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.18.4 Infringement Indemnification. Contractor 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 11 17336.00000\8752982.2 120 of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Contractor shall defend, indemnify and hold the Commission, its directors, officials, officers, agents, Contractors, 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 Contractor, its officials, officers, employees, agents, Contractors, 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. Contractor shall defend, at Contractor’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the Commission, its directors, officials, officers, agents, Contractors, employees and volunteers. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the Commission or its directors, officials, officers, agents, Contractors, employees and volunteers, in any such suit, action or other legal proceeding. Contractor shall reimburse the Commission and its directors, officials, officers, agents, Contractors, 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. Contractor’s obligation to indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, Contractors, employees and volunteers. Notwithstanding the foregoing, to the extent Contractor's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. 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. 12 17336.00000\8752982.2 121 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.25 Commission's Right to Employ Other Contractors. The Commission reserves the right to employ other Contractors 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 Contractor without the prior written consent of Commission. 3.27 Prohibited Interests and Conflicts. 3.27.1 Solicitation. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. 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 Contractor 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 Contractor 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 Contractor securing this or related Agreements with the Commission, is prohibited. 3.27.4 Employment Adverse to the Commission. Contractor 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. Contractor 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 13 17336.00000\8752982.2 122 to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Contractor shall also comply with all relevant provi- sions of Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 3.29 Subcontracting. Contractor 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, Contractor 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, Contractor agrees to fully comply with such Prevailing Wage Laws. The Commission shall provide Contractor with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Contractor's principal place of business and at the project site. Contractor shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.30.1 DIR Registration. Effective March 1, 2015, if the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subContractors must be registered with the Department of Industrial Relations. If applicable, Contractor shall maintain registration for the duration of the Project and require the same of any subContractors. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. 3.31 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 14 17336.00000\8752982.2 123 trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Contractor and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Contractor or any sub-Contractor for the employment and training of apprentices. Upon issuance of this certificate, Contractor and any sub-Contractor shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Contractor. 3.32 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 Contractor or the Services are not subject to the Eight-Hour Law. Contractor shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-Contractor under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Contractor or the Services are not subject to the Eight-Hour Law. 3.34 Subpoenas or Court Orders. Should Contractor receive a subpoena or court order related to this Agreement, the Services or the Project, Contractor shall immediately provide written notice of the subpoena or court order to the Commission. Contractor 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 15 17336.00000\8752982.2 124 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, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.38 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.39 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.40 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 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. Contractor shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein, without the prior written consent of the Commission. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.44 Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. [SIGNATURES ON FOLLOWING PAGE] 16 17336.00000\8752982.2 125 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR STATION ELECTRICAL MAINTENANCE SERVICES WITH [___CONTRACTOR___] IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY CONTRACTOR TRANSPORTATION COMMISSION [INSERT NAME OF CONTRACTOR] By: _________________________ By: ____________________________ [INSERT NAME] Signature Chairman __________________________ Name __________________________ Title Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP Its: Secretary General Counsel 17 17336.00000\8752982.2 126 EXHIBIT "A" - SCOPE OF SERVICES [TO BE INSERTED] EXHIBIT "B" - COMPENSATION [TO BE INSERTED] A-1 17336.00000\8752982.2 127 AGENDA ITEM 11 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: September 28, 2015 TO: Western Riverside County Programs and Projects Committee FROM: Dan Mathers, Facilities Administrator THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Agreement for Commuter Rail Station Vending Services STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement No. 16-24-007-00 to First Class Vending, Inc. for the provision of commuter rail station vending services, a receivable-based agreement for a term of five- years, plus one five-year option to extend the agreement; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement, including option years, on behalf of the Commission; and 3) Forward to the Commission for final action. BACKGROUND INFORMATION: The Commission owns and operates five commuter rail stations and the Perris Transit Center in Riverside County. Additionally, three new Commission-owned and operated Perris Valley Line stations and the rail portion of the Perris Transit Center will begin operations in December 2015. In response to ridership interest for grab and go refreshments at the Commission’s commuter rail stations, a contract was awarded to First Class Vending in 2010 to provide one cold beverage and one snack machine at each station, with an additional hot beverage machine at the Riverside Downtown Station. With that contract expiring on June 30, 2015, staff initiated a new procurement for vending services at all of the Commission’s commuter rail stations. Procurement Process Staff determined the weighted factor method of source selection to be the most appropriate for this procurement, as it allows the Commission to identify the most advantageous proposal with price and other factors considered. Non-price factors include elements such as qualifications of firm, personnel, and the ability to respond to the Commission’s needs for vending services as set forth under the terms of request for proposals (RFP) No. 16-24-007-00. RFP No. 16-24-007-00 for commuter rail station vending services was released by staff on July 29. A public notice was advertised in the Press Enterprise, and the RFP was posted on the Agenda Item 11 128 Commission’s PlanetBids website, which is accessible through the Commission’s website. Utilizing PlanetBids, emails were sent to 15 firms, two of which are located in Riverside County. Through the PlanetBids site, eight firms downloaded the RFP; two of these firms are located in Riverside County. A pre-bid conference was held on August 4, 2015, and attended by two firms. Staff responded to all questions submitted by potential proposers prior to the August 13 clarification deadline date. Two firms – Continental Vending, Inc. (Anaheim) and First Class Vending, Inc. (Bell Gardens) – submitted responsive and responsible proposals prior to the 2:00 p.m. submittal deadline on August 27. Utilizing the evaluation criteria set forth in the RFP, all firms were evaluated and scored by an evaluation committee comprised of Commission and Bechtel staff. As a result of the evaluation committee’s assessment of the written proposals including proposed revenue share rates, the evaluation committee recommends contract award to First Class Vending, Inc. to perform commuter rail station vending services for a five-year term, plus one five-year option to extend the agreement, as this firm earned the highest total evaluation score. The agreement with First Class Vending, Inc. will be receivable-based, as First Class Vending, Inc. will be required to pay to the Commission a percentage of the revenues generated by its vending services at the commuter rail stations. The Commission’s standard form professional services agreement will be entered into with the consultant subject to any changes approved by the Executive Director, and pursuant to legal counsel review. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2015/16 FY 2016/17+ Amount: $ 15,000 $145,000 Source of Funds: Vending Sales Budget Adjustment: No N/A GL/Project Accounting No.: 2440XX 416 41608 0000 103 24 42003 Fiscal Procedures Approved: Date: 09/21/2015 Attachment: Standard Form Professional Services Agreement Agenda Item 11 129 Agreement No. 16-24-007-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR COMMUTER RAIL STATION VENDING SERVICES WITH FIRST CLASS VENDING, INC. 1. PARTIES AND DATE. This Agreement is made and entered into this day of , 2015, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and FIRST CLASS VENDING, 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 vending 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 nine Commission owned commuter rail stations (the "Sites") 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, 2020, unless earlier terminated as provided herein. 17336.00000\8752982.2 130 The Commission, at its sole discretion, may extend this Agreement for one (1) three- year option and one (1) two-year option. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. 3.3 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.4 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant under its supervision. Consultant will determine the means, method and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and Consultant is not an employee of Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall not be employees of Commission and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. 3.5 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Commission. 3.6 Substitution of Key Personnel. Consultant has represented to Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence and experience upon written approval of Commission. In the event that Commission and Consultant cannot agree as to the substitution of key personnel, Commission shall be entitled to terminate this Agreement for cause, pursuant to provisions of Section 3.16 of this Agreement. The key personnel for performance of this Agreement are as follows: __________________________________. 3.7 Commission’s Representative. Commission hereby designates Executive Director, or his or her designee, to act as its representative for the performance of this Agreement ("Commission’s Representative"). Commission's 2 17336.00000\8752982.2 131 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 [___INSERT NAME OR TITLE___], or his or her designee, to act as its representative for the performance of this Agreement ("Consultant’s Representative"). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.9 Coordination of Services. Consultant agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, consultants and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Consultant shall perform the Services under this Agreement in a skillful and competent manner, consistent with the standard generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from Commission, any Services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant’s errors and omissions. 3.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3 17336.00000\8752982.2 132 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 4 17336.00000\8752982.2 133 Injury/advertising Injury; (3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent consultants coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (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. 5 17336.00000\8752982.2 134 (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 6 17336.00000\8752982.2 135 said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. Each insurance policy required by this Agreement shall be endorsed to state that: 3.12.5 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 7 17336.00000\8752982.2 136 secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 3.13 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.14 Commission/Revenue. 3.14.1 Payment of Commission. Commission shall receive [INSERT WRITTEN PERCENTAGE] [(%)] commission from Consultant for sales based on the rates set forth in Exhibit "B” attached hereto and incorporated herein by reference. Commission shall receive such commission as set forth in Exhibit "A" attached hereto. Consultant shall be entitled to retain all profits in excess of the commission paid to Commission. Consultant shall not be entitled to be paid all other fees, expenses or other monies in connection with the provision of the Services. 3.14.2 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 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 8 17336.00000\8752982.2 137 (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. 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, 9 17336.00000\8752982.2 138 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. 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 10 17336.00000\8752982.2 139 otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 3.18.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.18.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 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, 11 17336.00000\8752982.2 140 officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation, the payment of all consequential damages, attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the Commission, its directors, officials, officers, agents, consultants, employees and volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Commission or its directors, officials, officers, agents, consultants, employees and volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission and its directors, officials, officers, agents, consultants, employees and volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant’s obligation to indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and volunteers. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. This Section 3.21 shall survive any expiration or termination of this Agreement. 3.22 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended, or modified by a writing signed by both parties. 3.23 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.25 Commission's Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with this Project. 3.26 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 3.27 Prohibited Interests and Conflicts. 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 12 17336.00000\8752982.2 141 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 provi- sions of Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 3.29 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 3.30 Prevailing Wages. By its execution of this Agreement, Consultant certified that it is aware of the requirements of California Labor Code Sections 1720 et 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 13 17336.00000\8752982.2 142 compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. The Commission shall provide Consultant with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.30.1 DIR Registration. Effective March 1, 2015, if the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations. If applicable, Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. 3.31 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant. 3.32 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or 14 17336.00000\8752982.2 143 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. 15 17336.00000\8752982.2 144 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] 16 17336.00000\8752982.2 145 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR COMMUTER RAIL STATION VENDING SERVICES WITH [___CONSULTANT___] IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY CONSULTANT TRANSPORTATION COMMISSION [INSERT NAME OF CONSULTANT] By: _________________________ By: ____________________________ [INSERT NAME] Signature Chairman __________________________ Name __________________________ Title Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP Its: Secretary General Counsel 17 17336.00000\8752982.2 146 EXHIBIT "A" SCOPE OF SERVICES [___INSERT___] A-1 17336.00000\8752982.2 147 EXHIBIT "B" COMMISSION/REVENUE [___INSERT___] B-1 17336.00000\8752982.2 148