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HomeMy Public PortalAbout08 August 22, 2016 Special Western Riverside County Programs and ProjectsRIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE MEETING AGENDA SPECIAL MEETING TIME: 1:30 p.m. DATE: Monday, August 22, 2016 LOCATION: CONFERENCE ROOM A County of Riverside Administrative Center 4080 Lemon Street, Third Floor, Riverside  COMMITTEE MEMBERS  Ben Benoit, Chair / Timothy Walker, City of Wildomar Deborah Franklin, Vice Chair / Art Welch, City of Banning Karen Spiegel / Randy Fox, City of Corona Adam Rush / Clint Lorimore, City of Eastvale Frank Johnston / Brian Berkson, City of Jurupa Valley Scott Mann / John Denver, City of Menifee Yxstian Gutierrez / Jesse Molina, City of Moreno Valley Berwin Hanna / Ted Hoffman, City of Norco Daryl Busch / Rita Rogers, City of Perris Andrew Kotyuk / Crystal Ruiz, 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-00032 Alexandra Rackerby From: Alexandra Rackerby Sent: Thursday, August 18, 2016 8:04 AM To: Alexandra Rackerby Subject: RCTC Western Riverside County Programs and Projects Committee Attachments: Conflict of Interest Form.pdf; Conflict of Interest Memo.pdf Good Morning Commissioners, The Western Riverside County Programs and Projects Committee agenda for Monday, August 22, 2016 is posted on our website at http://www.rctc.org/uploads/media items/western-riverside-county-programs-and-projects-committee- august-22-2016.original.pdf Please note this meeting will be held in Conference Room A on the third floor. 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 TO: Riverside County Transportation Commission FROM: Jennifer Harmon, Clerk of the Board DATE: August 17, 2016 SUBJECT: Possible Conflicts of Interest Issues – Western Riverside County Programs and Projects Committee Agenda of August 22, 2016 The August 22 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. 12 – Amendment to Transportation Uniform Mitigation Fee Regional Arterial Agreement for the Railroad Canyon Road at Interstate 15 Interchange Project in the City of Lake Elsinore Consultant(s): SC Engineering Reyes S. Chavez, President 16096 Chiwi Road Apple Valley, CA 92307 Agenda Item No. 13 – Agreement with Jacobs Project Management Company for Construction Management Services for the Construction of the Pachappa Underpass Project Consultant(s): Jacobs Project Management Co. Peter Magallones, Vice President 3257 E. Gausti Road, Suite 120 Ontario, CA 91761 Agenda Item No. 14 – List of Pre-Qualified Firms and Agreements for On-Call Geotechnical Investigation—Laboratory and Field Testing of Materials Services Consultant(s): Converse Consultants Hashmi Quazi, Principal-in-Charge 10391 Corporate Drive Redlands, CA 92374 Leighton Consulting, Inc. Thomas Benson, Jr., President & CEO 17781 Cowan Irvine, CA 92614 Ninyo & Moore Geotechnical & Environmental Sciences Consultants Kurt Yoshii, Principal Engineer 11650 Mission Park Drive, Suite 101 Rancho Cucamonga, CA 91730 Agenda Item No. 15 – Agreement for Security Guard Services at Commission Owned Commuter Rail Stations and Control Center Consultant(s): Allied Universal Security Services Roger Langner, Vice President 2900 Adams Street, Suite C-10A Riverside, CA 92504 Agenda Item No. 16 – Agreements for Freeway Service Patrol Tow Truck Services Consultant(s): Pepe’s Towing Service, Inc. Manny Acosta, Treasurer 2000 W. Key Street Colton, CA 92324 E & S Towing Enterprises, Inc., DBA Steve’s Towing Miguel Leyva, President 5527 28th Street Riverside, CA 92509 RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE www.rctc.org SPECIAL MEETING AGENDA* *Actions may be taken on any item listed on the agenda 1:30 p.m. Monday, August 22, 2016 CONFERENCE ROOM A County Administrative Center 4080 Lemon Street, Third 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 August 22, 2016 Page 2 5. APPROVAL OF MINUTES – JUNE 27, 2016 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. TOLL FACILITY AGREEMENT WITH CALTRANS FOR INTERSTATE 15 EXPRESS LANES IN RIVERSIDE COUNTY Page 1 Overview This item is for the Committee to: 1) Approve Agreement No. 17-31-002-00 with Caltrans for Interstate 15 Express Lanes in Riverside County allowing the Commission to operate toll lanes for 50 years; 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 authorize non-funding changes as may be required for the project; and 4) Forward to the Commission for final action. 8. REQUEST FOR ADDITIONAL FUNDS FOR THE CAJALCO ROAD WIDENING PROJECT Page 42 Overview This item is for the Committee to: 1) Approve an additional $3 million of 2009 Measure A Western County New Corridors and/or federal Surface Transportation Program (STP) funds to cover costs associated with an expanded environmental document for the county of Riverside’s (County) Cajalco Road widening project; and 2) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee August 22, 2016 Page 3 9. CITY OF TEMECULA REQUEST TO REPROGRAM FUNDING FROM INTERSTATE 15/FRENCH VALLEY PARKWAY PHASE 1 TO PHASE 2 Page 46 Overview This item is for the Committee to: 1) Approve reprogramming the balance of Transportation Uniform Mitigation Fee (TUMF) Community Environmental Transportation Accountability Program (CETAP) funds for the Interstate 15/French Valley Parkway interchange improvement project from Phase 1 to Phase 2 in the amount of $1,472,509; 2) Approve Agreement No. 11-72-036-01, Amendment No. 1 to Agreement No. 11-72-036-00, with the city of Temecula (Temecula) for the I-15/French Valley Parkway interchange improvement Phase 1 project to reflect the decrease in funding of $1,472,509; 3) Approve Agreement No. 17-73-007-00 with Temecula for the I-15/French Valley Parkway interchange improvement Phase 2 project funding in an amount not to exceed $1,472,509; 4) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements; and 5) Forward to the Commission for final action. 10. CONSTRUCTION FUNDING REQUEST FOR INTERSTATE 215/SCOTT ROAD INTERCHANGE Page 67 Overview This item is for the Committee to: 1) Approve $8 million in federal Surface Transportation Program (STP) funds for the Interstate 215/Scott Road interchange improvement project; 2) Direct staff to amend the Federal Transportation Improvement Program (FTIP) and Regional Transportation Plan (RTP) to update the project description and funding for Phase I and Phase II improvements; and 3) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee August 22, 2016 Page 4 11. AMENDMENT TO AGREEMENT WITH JACOBS PROJECT MANAGEMENT CO. FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE INTERSTATE 215 CENTRAL WIDENING PROJECT FROM SCOTT ROAD TO NUEVO ROAD IN THE CITY OF PERRIS Page 71 Overview This item is for the Committee to: 1) Approve Agreement No. 12-31-034-07, Amendment No. 7 to Agreement No. 12-31-034-00, with Jacobs Project Management Co. (Jacobs) to fund the cost of extended construction management, inspection, and testing services for the Interstate 215 Central widening project in the amount of $441,328, plus a contingency amount of $44,000, for an additional amount of $485,328, and a total amount not to exceed $14,690,339; 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 the use of the contingency amount as may be required for the project; 4) Approve reprogramming up to $500,000 of State Transportation Improvement Program (STIP) Regional Improvement Program (RIP) funds from construction capital to construction support; 5) Authorize the Executive Director, pursuant to legal counsel review, to execute Agreement No. 12-31-078-03, Amendment No. 3 to Agreement No. 12-31-078-00, with Caltrans to transfer up to $500,000 of STIP-RIP funds from construction capital to construction support; 6) Approve an increase of $250,000 in FY 2016/17 budget revenues and expenditures for construction management services related to the project; and 7) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee August 22, 2016 Page 5 12. AMENDMENT TO TRANSPORTATION UNIFORM MITIGATION FEE REGIONAL ARTERIAL AGREEMENT FOR THE RAILROAD CANYON ROAD AT INTERSTATE 15 INTERCHANGE PROJECT IN THE CITY OF LAKE ELSINORE Page 80 Overview This item is for the Committee to: 1) Approve Agreement No. 10-72-016-05, Amendment No. 5 to Agreement No. 10-72-016-00, with the city of Lake Elsinore (Lake Elsinore) for the Railroad Canyon Road/Interstate 15 interchange project to authorize an additional $350,000 in Transportation Uniform Mitigation Fee (TUMF) funds to complete project approval and environmental document (PA&ED) phase for a total PA&ED phase funding amount of $2,555,000; 2) Approve Agreement No. 11-31-107-05, Amendment No. 5 to Agreement No. 11-31-107-00, with SC Engineering to complete the PA&ED services associated with the project in the amount of $230,000, plus an additional contingency amount of $34,500 for an additional amount of $264,500, and a total amount not to exceed $1,494,509; 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, or designee, to approve release of contingency work up to the total authorized amount as may be required for the project; and 5) Forward to the Commission for final action. 13. AGREEMENT WITH JACOBS PROJECT MANAGEMENT COMPANY FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE CONSTRUCTION OF THE PACHAPPA UNDERPASS PROJECT Page 91 Overview This item is for the Committee to: 1) Award Agreement No. 16-31-051-00 to Jacobs Project Management Company (Jacobs) to provide construction management (CM), materials testing, and construction surveying services for the Pachappa Underpass project, in the amount of $1,739,231, plus a contingency amount of $260,769, for a total amount not to exceed $2 million; 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 as may be required for the project; and 4) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee August 22, 2016 Page 6 14. LIST OF PRE-QUALIFIED FIRMS AND AGREEMENTS FOR ON-CALL GEOTECHNICAL INVESTIGATION – LABORATORY AND FIELD TESTING OF MATERIALS SERVICES Page 172 Overview This item is for the Committee to: 1) Award the following agreements to provide on-call geotechnical investigation – laboratory and field testing of materials services for a three-year term with two one-year options to extend the agreement, in an amount not to exceed an aggregate value of $500,000; a) Agreement No. 16-31-078-00 with Converse Consultants (Converse); b) Agreement No. 16-31-112-00 with Leighton Consulting Inc. (Leighton); and c) Agreement No. 16-31-113-00 with Ninyo & Moore Geotechnical & Environmental Sciences Consultants (Ninyo & Moore) 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, including option years, 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. 15. AGREEMENT FOR SECURITY GUARD SERVICES AT COMMISSION OWNED COMMUTER RAIL STATIONS AND CONTROL CENTER Page 222 Overview This item is for the Committee to: 1) Award Agreement No. 16-24-079-00 to Allied Universal Security Services, formerly known as Universal Protection Services, LP (Universal), for the provision of security services at the Commission-owned commuter rail stations and control center for a three-year term, and two two-year options to extend the agreement, in an amount of $18.3 million, plus a contingency amount of $1.2 million, for a total amount not to exceed $19.5 million; 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 approve contingency work up to the total not to exceed amount as required for these services; and 4) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee August 22, 2016 Page 7 16. AGREEMENTS FOR FREEWAY SERVICE PATROL TOW TRUCK SERVICES Page 243 Overview This item is for the Committee to: 1) Award Agreement No. 16-45-082-00 to Pepe’s Towing for Freeway Service Patrol (FSP) tow truck services on State Route 91 Beat No. 4 for a three-year term, and one two-year option to extend the agreement, in an amount not to exceed $1,330,000; 2) Award Agreement No. 16-45-083-00 to Pepe’s Towing for FSP tow truck services on SR-60 Beat No. 7 for a three-year term, and one two-year option to extend the agreement, in an amount not to exceed $1,330,000; 3) Award Agreement No. 16-45-103-00 to Steve’s Towing for FSP tow truck services on the Riverside 91 Express Lanes Beat No. 91-T for a three-year term, and one two-year option to extend the agreement, in an amount not to exceed $1,205,000; 4) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, including option years, on behalf of the Commission; and 5) Forward to the Commission for final action. 17. 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. 18. ADJOURNMENT The next Western Riverside County Programs and Projects Committee meeting is scheduled to be held at 1:30 p.m., Monday, September 26, 2016, Board Chambers, First Floor, County Administrative Center, 4080 Lemon Street, Riverside. RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE ROLL CALL August 22, 2016 County of Riverside, District I Present Absent a aAtivw.d t :53 Q •rn. County of Riverside, District V a City of Banning City of Corona ,13 a City of Eastvale OP tor 434.44\m4. ,' 3br.m• City of Jurupa Valley o City of Menifee J7r1 a City of Moreno Valley �'� a City of Norco ,2 r a City of Perris a City of San Jacinto �� o City of Wildomar P` a RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS SIGN -IN SHEET August 22, 2016 NAME AGENCY E_MAIL ADDRESS 1: zA n.I� 1.�. � 13An n , n i6b ((it V © 1n. � 9gii U�)r KO --In �-C- e ` Ce v Je V . VR_A -, A) / A �R Q J kCe (4dCi, ivA 16� iv, (9d-/-- ��,�/� 44 ,Qi�/' -55.Z. i /146t1.09 �[J/Z�,/l/C) Vii-Le,F ) ‹55E_f'}'1, t)11 1114/.6 , Frara .�_ h,�s� - ^ a, � v l 0./t�G„. A-' p l6 7--- S412' G .i/e)(1- r n � " �7 X ky„,.v 7 G%'.! r�uS� sr i�tl'C AGENDA ITEM 5 MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Monday, June 27, 2016 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 1:30 p.m., in the Board Room at the County of Riverside Administrative Center, 4080 Lemon Street, First Floor, Riverside, California, 92501. 2. PLEDGE OF ALLEGIANCE At this time, Commissioner Scott Mann led the Western Riverside County Programs and Projects Committee in a flag salute. 3. ROLL CALL Members/Alternates Present Members Absent Marion Ashley Yxstian Gutierrez Ben Benoit Berwin Hanna Daryl Busch Deborah Franklin Kevin Jeffries Frank Johnston Andrew Kotyuk Scott Mann Adam Rush Karen Spiegel 4. PUBLIC COMMENTS There were no requests to speak from the public. RCTC WRC Programs and Projects Committee Minutes June 27, 2016 Page 2 5. APPROVAL OF MINUTES – MAY 23, 2016 M/S/C (Franklin/Mann) to approve the minutes as submitted. 6. ADDITIONS/REVISIONS John Standiford, Deputy Executive Director, announced there is an urgency agenda item, “Annual Funding Memorandums of Understanding with Southern California Regional Rail Authority”. This item arose after the agenda was posted and mailed, and there is a need for this item to be addressed by the Commission at this time. M/S/C (Rush/Kotyuk) to approve the addition of the urgency item to the agenda. 7. ADOPTION OF RESOLUTION CERTIFYING THE INTERSTATE 15 EXPRESS LANES PROJECT INITIAL STUDY/MITIGATED NEGATIVE DECLARATION AND APPROVAL OF THE INTERSTATE 15 EXPRESS LANES PROJECT Lisa DaSilva, Toll Project Manager, presented the details of the adoption of a resolution certifying the Interstate 15 Express Lanes project initial study/mitigated negative declaration and approval of the I-15 Express Lanes project. M/S/C (Franklin/Ashley) to: 1) Adopt Resolution No. 06-012, “Resolution of the Riverside County Transportation Commission Considering a Mitigated Negative Declaration for the Interstate 15 Express Lanes Project, Making Responsible Agency Findings, Adopting a Mitigation Monitoring and Reporting Program, and Approving the Interstate 15 Express Lanes Project”; 2) Approve the I-15 Express Lanes project in accordance with the California Environmental Quality Act (CEQA); and 3) Forward to the Commission for final action. 8. REQUEST FOR PROPOSAL TO DESIGN AND CONSTRUCT THE INTERSTATE 15 EXPRESS LANES PROJECT THROUGH A DESIGN-BUILD CONTRACT Lisa DaSilva presented the details of the request for proposal to design and construct the I-15 Express Lanes project through a design-build contract. M/S/C (Franklin/Jeffries) to: 1) Authorize staff, subject to approval by the California Department of Transportation (Caltrans) and the Federal Highway Administration RCTC WRC Programs and Projects Committee Minutes June 27, 2016 Page 3 (FHWA), to issue Request for Proposal (RFP) No. 16-31-057-00 and future addenda to design and construct the Interstate 15 Express Lanes project through a design-build (DB) contract; 2) Approve the selection criteria for the selection of the apparent best value (ABV) proposer; 3) Authorize the Executive Director to select the top-ranked ABV proposer for DB services, based on the criteria identified in the RFP and any addenda, and to conduct subsequent limited negotiations; 4) Authorize the Executive Director to pay, to the shortlisted DB proposers that meet the RFP criteria, a stipend of $275,000 per proposer or a total amount not to exceed $825,000 for all shortlisted proposers after Commission award of the DB contract; and 5) Forward to the Commission for final action. 9. AGREEMENT NO. 16-31-102-00 WITH COUNTY OF RIVERSIDE TO FUND A PROJECT STUDY REPORT EQUIVALENT DOCUMENT FOR THE ETHANAC ROAD/STATE ROUTE 74/NICHOLS ROAD CORRIDOR Lorelle Moe-Luna, Senior Management Analyst, presented the scope of the agreement with the county of Riverside to fund a project study report equivalent document for the Ethanac Road/SR-74/Nichols Road Corridor. M/S/C (Mann/Busch) to: Abstain: Rush 1) Approve Agreement No. 16-31-102-00 with the county of Riverside (County) for $2 million of 2009 Measure A Western County New Corridors Program funds for the preparation of a Project Study Report Equivalent (PSRE) document for the Ethanac Road/State Route 74/Nichols Road Corridor, for which the County will serve as lead agency; 2) Authorize the Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Approve an increase of $1 million in the fiscal year 2016/17 budgeted preliminary engineering expenditures; and 4) Forward to the Commission for final action. 10. STATE ROUTE 71/91 INTERCHANGE – CITY OF CORONA UTILITY AGREEMENT Mark Lancaster, Right of Way Manager, presented the scope of the State Route 71/91 Interchange – City Of Corona utility agreement. M/S/C (Rush/Johnston) to: RCTC WRC Programs and Projects Committee Minutes June 27, 2016 Page 4 1) Approve Agreement No. 16-31-070-00 with the city of Corona (Corona) in the revised amount of $588,825, plus a revised contingency amount of $150,207, for a revised total amount not to exceed $736,032; 2) Authorize the Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Approve an increase of $523,300 in fiscal year 2016/17 budgeted federal revenues and right of way expenditures for utility relocation costs; and 4) Forward to the Commission for final action. 11. AMENDMENT FOR ON-CALL RAIL OPERATIONS SUPPORT SERVICES Sheldon Peterson, Rail Manager, presented the scope of the amendment for on-call rail operations support services. M/S/C (Busch/Spiegel) to: 1) Approve an increase of $2 million for the following agreements for the continued support of on-call rail operations services for a revised amount not to exceed an aggregate value of $4 million and amendments to extend the agreements for an additional two-year term; a) Agreement No. 12-25-022-03, Amendment No. 3 to Agreement No. 12-25-022-00, with HDR Engineering, Inc.(HDR); b) Agreement No. 12-25-035-04, Amendment No. 4 to Agreement No. 12-25-035-00, with Parsons Brinckerhoff, Inc. (Parsons Brinckerhoff); and c) Agreement No. 12-25-036-04, Amendment No. 4 to Agreement No. 12-25-036-00, with STV Incorporated (STV); 2) Authorize the Executive Director, or designee, to execute task orders awarded to the consultants under the terms of the agreements; 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. 12. AMENDMENT TO ON-CALL STATION REPAIR AND MAINTENANCE Hector Casillas, Senior Management Analyst, presented the scope of the amendment to on-call station repair and maintenance. In response to Commissioner Franklin’s question regarding complaints received related to repairs, Hector Casillas noted the Commission has not received any complaints from the public. RCTC WRC Programs and Projects Committee Minutes June 27, 2016 Page 5 M/S/C (Franklin/Johnston) to: 1) Approve an increase of $850,000 for the following agreements for continued support of on-call station repair and maintenance services for a total amount not to exceed an aggregate value of $2.1 million; a) Agreement No. 12-24-085-00 with Process Cellular Inc. (ProCell); and b) Agreement No. 12-24-116-00 with Braughton Construction Co Inc. (Braughton); and 2) Forward to the Commission for final action. 13. ANNUAL FUNDING MEMORANDUMS OF UNDERSTANDING WITH SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY Sheldon Peterson presented the details of the annual funding memorandums of understanding with Southern California Regional Rail Authority. M/S/C (Mann/Franklin) to: 1) Approve Memorandum of Understanding (MOU) No. 16-25-106-00 with the Southern California Regional Rail Authority (SCRRA) for the Commission’s funding commitment related to the Fiscal Year 2016/17 SCRRA budget for a total amount not to exceed $19,524,000; 2) Approve MOU No. 16-25-107-00 with SCRRA for reimbursement of security guard services at Riverside County layover facilities for a three- year term, and two one-year options to extend the agreement, for a total amount not to exceed $250,000 for FY 2016/17; 3) Authorize the Executive Director, pursuant to legal counsel review, to approve the final form and execute the agreements; 4) Authorize the Executive Director to approve and execute amendments to MOU Agreement No. 16-25-107-00 related to revised compensation amounts in subsequent years; and 5) Forward to the Commission for final action. 14. COMMISSIONERS / STAFF REPORT 14A. Commissioners Scott Mann and Marion Ashley expressed their support for the Ethanac Road/SR-74/Nichols Road Corridor project. 14B. Commissioner Adam Rush commented on the 91/Perris Valley Line Celebration at the Marlborough Station. RCTC WRC Programs and Projects Committee Minutes June 27, 2016 Page 6 14C. Commissioner Karen Spiegel asked about the Ethanac Road/SR-74/Nichols Road Corridor project and if it will be expanded to go further south. Anne Mayer replied the Cajalco Road to SR-74 project was deferred due to the declining economy. Funds were reallocated to the northern section since there was more of a need to widen that area first. Commissioner Kevin Jeffries asked if it is feasible to break up the project and have the project span from Cajalco Road to Temescal Canyon Road. Anne Mayer replied the challenge from a CEQA and NEPA perspective is the Commission has to provide a full project scope that has a logical terminus. 15. ADJOURNMENT There being no further business for consideration by the Western Riverside County Programs and Projects Committee, the meeting was adjourned at 2:08 p.m. Respectfully submitted, Jennifer Harmon Clerk of the Board AGENDA ITEM 7 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 22, 2016 TO: Western Riverside County Programs and Projects Committee FROM: Lisa DaSilva, Toll Project Manager THROUGH: Michael Blomquist, Toll Program Director SUBJECT: Toll Facility Agreement with Caltrans for Interstate 15 Express Lanes in Riverside County STAFF RECOMMENDATION: This item is for the Committee to: 1)Approve Agreement No. 17-31-002-00 with Caltrans for Interstate 15 Express Lanes in Riverside County allowing the Commission to operate toll lanes for 50 years; 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 authorize non-funding changes as may be required for the project; and 4)Forward to the Commission for final action. BACKGROUND INFORMATION: The I-15 Express Lanes project proposes to design and construct one to two express lanes mostly in the undeveloped median from Cajalco Road in the city of Corona to the State Route 60 interchange in the cities of Eastvale and Jurupa Valley. Project improvements include the widening of 11 bridges, drainage tie-ins, toll collection system and infrastructure, and soundwalls. The Commission will operate and maintain the tolled express lanes after opening in 2020. For many years, staff has been working on the development and funding of the project to be delivered by the end of 2020. Staff and the I-15 Express Lanes consultant team completed the preliminary assessment and environmental document. On May 4, 2016, the project obtained a mitigated negative declaration and finding of no significant impact under the California Environmental Quality Act and National Environmental Policy Act, respectively. The Commission adopted the environmental document at its July 2016 Commission meeting. At its December 2015 meeting, the Commission authorized staff to release the Toll Services Provider (TSP) procurement documents. These TSP services include the toll system design and installation work and the toll operations and maintenance services. The TSP procurement is Agenda Item 7 1 well underway, and a recommendation for a contract award will be brought to the Commission in early 2017. Concurrently, staff has been working on the Design-Build (DB) procurement which includes the civil and toll system infrastructure improvements. The Commission authorized the release of the DB request for proposal in July 2016, and staff anticipates making a contract award recommendation in Spring/Summer 2017. DISCUSSION: In January, the Commission approved the project’s design-build cooperative agreement with Caltrans, which defines the terms and conditions under which the Project must be designed and constructed. Once the project is built, a comparable agreement between Caltrans and the Commission is necessary to define the terms and conditions of the operation and maintenance of the express lane facility. This agreement would also provide certainty to the Commission, the Federal Highway Administration, and the financial markets that Caltrans has agreed to allow the Commission to operate a toll facility in its right of way. Caltrans, as owner of the state highway system and the right of way where the tolled express lanes will be constructed, agreed to grant the Commission a lease to operate and maintain the express lanes. This agreement defines the roles and responsibilities of Caltrans and the Commission as it relates to the potential use, maintenance, reconstruction, operation, and condition on return to Caltrans of the express lane facility at the end of the lease. Some highlights of the agreement are as follows: • Establishes a 50-year lease at a rate of $10/month starting when the facility opens; • Sets express lane pavement condition requirements on return at the end of the lease; • Requires an incident management plan; • Allows for an independent contract for facility maintenance during operations; • Requires the use of the California Highway Patrol for toll lane enforcement; and • Allows the Commission use of a spare innerduct within the Caltrans communication backbone conduit. Staff recommends the approval of Agreement No. 17-31-002-00 with Caltrans for I-15 Express Lanes in Riverside County allowing the Commission to operate toll lanes for 50 years. Agenda Item 7 2 Financial Information In Fiscal Year Budget: N/A N/A Year: FY 2020/21 FY 2021-70 Amount: $ 120 $5,880 Source of Funds: Toll revenues Budget Adjustment: N/A N/A GL/Project Accounting No.: 003027 73001 00000 0000 515 31 73001 Fiscal Procedures Approved: Date: 08/11/2016 Attachment: Agreement No. 17-31-002-00 Agenda Item 7 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 AGENDA ITEM 8 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 22, 2016 TO: Western Riverside County Programs and Projects Committee FROM: Shirley Medina, Planning and Programming Director THROUGH: John Standiford, Deputy Executive Director SUBJECT: Request for Additional Funds for the Cajalco Road Widening Project STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve an additional $3 million of 2009 Measure A Western County New Corridors and/or federal Surface Transportation Program (STP) funds to cover costs associated with an expanded environmental document for the county of Riverside’s (County) Cajalco Road widening project; and 2) Forward to the Commission for final action. BACKGROUND INFORMATION: In July 2009, the Commission approved $7 million of federal Surface Transportation Program (STP) funds for the project approval and environmental document (PA&ED) phase for the County’s Cajalco Road widening project in response to the Mid County Parkway final alignment designation and need to improve an east-west facility to accommodate future travel demand. In January 2014, the Commission approved an additional $3 million of STP funds for the Cajalco Road widening project PA&ED phase through its Multifunding Call for Projects. During the preliminary environmental study, Caltrans determined the environmental document would necessitate preparing an environmental impact statement (EIS) instead of an environmental assessment/finding of no significant impact, which requires evaluating additional alternatives including $2 million for environmental mitigation. As a result, the costs for PA&ED have increased from approximately $11 million to $14 million. Other funding sources the County has secured for the PA&ED phase, in addition to the STP funds approved by the Commission, include $863,000 of redevelopment funds and $2.1 million of Transportation Uniform Mitigation Fee program zone funds. Given the project is regionally significant and its relationship to alternatives studied under the Community Environmental Transportation Acceptability Process (CETAP) East-West intra- county corridor, staff recommends approval of $3 million in 2009 Measure A Western County New Corridors and/or federal STP funding for the Cajalco Road widening project PA&ED phase. Agenda Item 8 42 The project is eligible for both of these fund sources and staff will work with the County on determining the most appropriate use of funds. Financial Information In Fiscal Year Budget: N/A Year: FY 2017/18 Amount: $3,000,000 Source of Funds: 2009 Measure A Western County New Corridors funds and/or federal STP Budget Adjustment: No GL/Project Accounting No.: XXXXXX 81101 00000 0000 261 31 81101 Fiscal Procedures Approved: Date: 08/15/2016 Attachment: Funding Request Letter from the County Dated July 5, 2016 Agenda Item 8 43 44 45 AGENDA ITEM 9 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 22, 2016 TO: Western Riverside County Programs and Projects Committee FROM: Shirley Medina, Planning and Programming Director THROUGH: John Standiford, Deputy Executive Director SUBJECT: City of Temecula Request to Reprogram Funding From Interstate 15/French Valley Parkway Phase 1 to Phase 2 STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve reprogramming the balance of Transportation Uniform Mitigation Fee (TUMF) Community Environmental Transportation Accountability Program (CETAP) funds for the Interstate 15/French Valley Parkway interchange improvement project from Phase 1 to Phase 2 in the amount of $1,472,509; 2) Approve Agreement No. 11-72-036-01, Amendment No. 1 to Agreement No. 11-72-036-00, with the city of Temecula (Temecula) for the I-15/French Valley Parkway interchange improvement Phase 1 project to reflect the decrease in funding of $1,472,509; 3) Approve Agreement No. 17-73-007-00 with Temecula for the I-15/French Valley Parkway interchange improvement Phase 2 project funding in an amount not to exceed $1,472,509; 4) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements; and 5) Forward to the Commission for final action. BACKGROUND INFORMATION: In September 2010, the Commission approved up to $20 million in TUMF CETAP funds to fund the I-15/French Valley Parkway interchange improvement Phase 1 project. The project qualifies for TUMF CETAP funding as part of the CETAP north/south corridor. The city is nearing completion of the project and is requesting to reprogram the balance of $1,472,509 from Phase 1 to Phase 2. Phase 1 improvements are summarized as follows: • Construction of a new southbound off-ramp from I-15 to French Valley Parkway; • Construction of the western segment of French Valley Parkway from the off-ramp to Jefferson Avenue; and • Widening the I-15 southbound off-ramp to Winchester Road (SR-79 North). Agenda Item 9 46 Phase 2 improvements will include construction of a two-lane northbound collector/distributor beginning north of the Winchester Road on-ramps and ending just north of the 15/215 junction with connectors to I-15 and I-215. Of the $1,472,509 balance, $798,947 will be programmed for design work and $673,562 for right of way. These phases will begin upon execution of Agreement No. 17-73-007-00. Staff recommends approval of the city’s request, so the city can continue progress on this regional project. Of importance to Phase 2 of the project is the coordination between Temecula and Caltrans to phase the interchange improvement project in segments that fit within current funding constraints. Construction funding is partially funded with State Transportation Improvement Program (STIP) funds and is a high priority for future STIP cycles. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18 Amount: $798,947 $673,562 Source of Funds: TUMF CETAP Budget Adjustment: No N/A GL/Project Accounting No.: 005134 81101 00000 0000 210 73 81101 $798,947 005134 81401 00000 0000 210 73 81401 $673,562 Fiscal Procedures Approved: Date: 08/08/2016 Attachments: 1) Draft Agreement No. 11-72-036-01 2) Draft Agreement No. 17-73-007-00 Agenda Item 9 47 Agreement No. 11-72-036-01 AMENDMENT NO. 1 TO AGREEMENT FOR THE FUNDING OF TUMF REGIONAL ARTERIAL COMMUNITY ENVIRONMENTAL TRANSPORTATION ACCEPTABILITY PROCESS CORRIDOR IMPROVEMENTS ON THE REGIONAL SYSTEM OF HIGHWAYS AND ARTERIALS WITH THE CITY OF TEMECULA 1.PARTIES AND DATE This Amendment No. ____ to Agreement No. 11-72-036 is made and entered into as of this ______ day of ___________, 2016, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“Commission”) and the City of Temecula (“City”). 2.RECITALS 2.1 The Commission and the City have entered into an agreement entitled "Agreement for the Funding of TUMF Regional Arterial Community Environmental Transportation Acceptability Process Corridor (CETAP) Improvements with the City of Temecula dated December 21, 2010 (the "Master Agreement"). The Master Agreement provides the terms and conditions, scope of work, schedule and funding amount for the construction of the French Valley Parkway/I-15 Overcrossing and Interchange (hereinafter the “Project”). 2.2 The Commission and the City have entered into an Amendment No. 1 to the Master Agreement, dated December 21, 2010 for the purpose of decreasing the funding in the amount of $1,472,509 to reflect final cost as outlined in Exhibit A. 3.TERMS 3.1 The Funding Amount, as that term is defined in Section 3.2 of the Master Agreement, shall be decreased from twenty million ($20,000,000) to eighteen million five hundred twenty seven thousand four hundred ninety one ($18,527,491). RVPUB\HSHANE\722087.1 1 ATTACHMENT 1 48 3.2 The funding allocations identified in Exhibit "A" of the Master Agreement shall be replaced by the funding allocations identified in Exhibit "A" attached to this Amendment and incorporated herein by reference. The Funding Amount shall be utilized as specified in the attached Exhibit "A". 3.3 The Project shall be completed expeditiously, within the term of the Master Agreement. 3.4 Except as amended by this Amendment, all provisions of the Master Agreement, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the parties under this Amendment. [Signatures on following page] RVPUB\HSHANE\722087.1 2 49 SIGNATURE PAGE TO AGREEMENT NO. 11-72-036-01 IN WITNESS WHEREOF, the parties hereto have executed the Agreement on the date first herein above written. RIVERSIDE COUNTY City of Temeula TRANSPORTATION COMMISSION ___________________________ By: _____________________________ ___________________________ Scott Matas Signature ___________________________ Name ___________________________ Title APPROVED AS TO FORM: By: _____________________________ Best, Best & Krieger LLP General Counsel RVPUB\HSHANE\722087.1 3 50 EXHIBIT "A" FUNDING: PHASE TUMF LOCAL TOTAL RIGHT OF WAY $3,504,714 $ $3,504,714 CONSTRUCTION $15,022,777 $4,100,000 $19,122,777 TOTAL $18,527,491 $4,100,000 $22,627,491 Exhibit A RVPUB\HSHANE\722087.1 51 Agreement No. 17-73-007-00 AGREEMENT FOR THE FUNDING OF TUMF REGIONAL COMMUNITY ENVIRONMENTAL TRANSPORTATION ACCEPTABILITY PROCESS CORRIDOR IMPROVEMENTS ON THE REGIONAL SYSTEM OF HIGHWAYS AND ARTERIALS WITH THE CITY OF TEMECULA 1.Parties and Date. 1.1 This Agreement is executed and entered into this day of , 2016, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“RCTC”) and the City of Temecula (“City”). RCTC and City are sometimes collectively referred to herein as the “Parties”. 2.Recitals. 2.1 RCTC is a county transportation commission created and existing pursuant to California Public Utilities Code Sections 130053 and 130053.5. 2.2 On November 5, 2002 the voters of Riverside County approved Measure A authorizing the collection of a one-half percent (1/2%) retail transactions and use tax to fund transportation programs and improvements within the County of Riverside, and adopting the Riverside County Transportation Improvement Plan (the “Plan”). 2.3 The Plan requires cities and the County in western Riverside County to participate in a Transportation Uniform Mitigation Fee (TUMF) Program to be eligible to receive Local Streets and Roads funds generated by Measure A. 2.4 The Plan further requires that the first $400 million in revenues from TUMF be made available to RCTC to fund equally the Regional Arterial System and development of New Transportation Corridors identified through the Community and Environmental Transportation Acceptability Process (CETAP). To receive TUMF funding, CETAP corridors must also be designated on the Regional System of Highways and Arterials as established in the October 2002 TUMF Nexus Study, as most recently amended in October 2009, and as may be amended in the future. 2.5 The Western Riverside Council of Governments (WRCOG) has been selected to administer the overall TUMF Program pursuant to applicable state laws including Government Code Sections 66000 et seq. and has entered into a Memorandum of Understanding (MOU) with RCTC Users/preprint/TUMF/Projects/Temecula/FVP I.C. and O.C. CETAP 1 52 ATTACHMENT 2 dated July 10, 2003, and revised on September 10, 2008 regarding the allocation of the TUMF Regional Funds to be made available to RCTC for programming. 2.6 RCTC intends, by this Agreement, to distribute TUMF Regional Funds, identified by RCTC for CETAP corridors, subject to the conditions provided herein, and to participate in the joint development of the Project, as defined herein. 3. Terms. 3.1 Description of Work. This Agreement is intended to distribute TUMF Regional Funds allocated to CETAP Corridors to the City for design and right of way of the French Valley Parkway/I-15 Interchange Project – Phase II, (“the Work”). The Work, including a timetable and a detailed scope of work, is more fully described in Exhibit “A” attached hereto and, pursuant to Section 3.15 below, is subject to modification as requested by the City and approved by RCTC. 3.2 RCTC Funding Amount. RCTC hereby agrees to distribute to the City, on the terms and conditions set forth herein, a sum not to exceed one million four hundred seventy two thousand five hundred nine ($1,472,509), to be used exclusively for reimbursing the City for eligible Work expenses as described herein (“Funding Amount”). The City acknowledges and agrees that the Funding Amount may be less than the actual cost of the Work, and that RCTC shall not contribute TUMF Regional Funds in excess of the maximum TUMF share for the phase/project identified in Appendix F of the TUMF Nexus Study. 3.2.1 Eligible Work Costs. The total Work costs (“Total Work Cost”) may include the following items, provided that such items are included in the scope of work attached as Exhibit “A”: (1) City and/or consultant costs associated with direct Work coordination and support; (2) all costs associated with right-of-way acquisition, including right-of-way engineering, appraisal, acquisition, legal costs for condemnation procedures if authorized by the City, and costs of reviewing appraisals and offers for property acquisition; (3) costs reasonably incurred if condemnation proceeds; and (4) costs incurred in the preparation of plans, specifications, and estimates by City or consultants. 3.2.1.1 Right-of-Way Acquisition. The Parties acknowledge that in order to protect the City’s ability to deliver the Project in a timely cost effective manner, the City may purchase parcels of property in advance of the completion of the Project’s final design (PS&E). The Parties acknowledge that acquired parcels or remnants purchased in advance of final design may not ultimately be required for the Project. Upon completion of the Project’s final design, the City shall provide RCTC with a detailed list of all parcels purchased by the City for which it received TUMF Regional Funds pursuant to this Agreement. The City shall identify any parcels or remnants thereof which were acquired using TUMF Regional Funds and are not required for construction of the Project. A preliminary list shall be submitted to the RCTC 30 days before the issuance of bid documents for construction of the Project and a final list shall be submitted to the RCTC no later than 30 days following the recording of the Certificated of Completion for the Project. 3.2.1.2 Valuation and Repayment of Any Property Remnants. Upon receipt of the City’s final list, RCTC shall meet with the City for the purpose of identifying any parcel or reasonably usable remnant of a parcel for which TUMF Regional Funds were expended that may Users/preprint/TUMF/Projects/Temecula/FVP I.C. and O.C. CETAP 2 53 reasonably be developed for other use by the City and/or sold. The Parties shall confer in good faith to agree upon the disposition of such parcels and remnant parcels and their fair market value as of a date agreed to by the parties, but in no event later than the date of completion of the Project. “Fair Market Value” shall have the definition set forth in Code of Civil Procedure Section 1263.320 and “remnant” shall have the definition set forth in Code of Civil Procedure Section 1240.410. Nothing herein shall preclude the City and RCTC from beginning the meetings earlier in the event both parties agree that the parcel or remnant will not be used for the Project. 3.2.1.3 Reimbursement for Unused Parcels. Following recordation of the Certificate of Completion for the Project, the City shall be responsible for promptly reimbursing RCTC for any TUMF Regional Funds which were used to acquire parcels which are completely unused in the Project. If City funds other than TUMF were used to purchase the Parcel, those local funds shall be considered in determining the reimbursement amount. 3.2.1.4 Appeal to Commission. In the event of a disagreement between the Parties regarding the reimbursement of TUMF Regional Funds under this section 3.2.1, either party may appeal, in writing, to the RCTC Board. The RCTC Board’s determination regarding excess right-of-way and value pursuant to this section shall be final. 3.2.2 Ineligible Work Costs. The Total Work Cost shall not include the following items which shall be borne solely by the City without reimbursement: (1) City administrative costs; (2) City costs attributed to the preparation of invoices, billings and payments; (3) any City fees attributed to the processing of the Work; and (4) expenses for items of work not included within the scope of work in Exhibit “A”. 3.2.3 Increases in Work Funding. The Funding Amount may, in RCTC’s sole discretion, be augmented with additional TUMF Regional Funds if the TUMF Nexus Study is amended to increase the maximum eligible TUMF share for the Work. Any such increase in the Funding Amount must be approved in writing by RCTC’s Executive Director. In no case shall the amount of TUMF Regional Funds allocated to the City exceed the then-current maximum eligible TUMF share for the Work. No such increased funding shall be expended to pay for any Work already completed. For purposes of this Agreement, the Work or any portion thereof shall be deemed complete upon its acceptance by RCTC’s Executive Director. 3.2.4 No Funding for Temporary Improvements. Only segments or components of the Work that are intended to form part of or be integrated into the Work may be funded by TUMF Regional Funds. No improvement which is temporary in nature, including but not limited to temporary roads, curbs, or drainage facilities, shall be funded with TUMF Regional Funds except as needed for staged construction of the Work. 3.3 City’s Funding Obligation to Complete the Work. In the event that the TUMF Regional Funds allocated to the Work represent less than the total cost of the Work, the City shall provide such additional funds as may be required to complete the Work as described in Exhibit “A”. 3.3.1 City’s Obligation to Repay TUMF Regional Funds to RCTC. In the event that: (i) the City, for any reason, determines not to proceed with or complete the Work; or (ii) the Work is not timely completed, subject to any extension of time granted by RCTC pursuant to Section Users/preprint/TUMF/Projects/Temecula/FVP I.C. and O.C. CETAP 3 54 3.15; the City agrees that any TUMF Regional Funds that were distributed to the City for the Work shall be repaid in full to RCTC. The Parties shall enter into good faith negotiations to establish a reasonable repayment schedule and repayment mechanism which may include, but is not limited to, withholding of Measure A Local Streets and Roads revenues. The City acknowledges and agrees that RCTC shall have the right to withhold any Measure A Local Streets and Roads revenues due the City, in an amount not to exceed the total of the funds distributed to the City, and/or initiate legal action to compel repayment, if the City fails to repay RCTC within a reasonable time period not to exceed 180 days from receipt of written notification from RCTC that repayment is required. 3.4 Work Responsibilities of the City. The City shall be responsible for the following aspects of the Work, in compliance with state and federal law provided that such items are included in the Project scope of work attached as Exhibit “A”: (i) development and approval of plans, specifications and engineer’s estimate (PS&E), environmental clearance, right of way acquisition, and obtaining all permits required by impacted agencies prior to commencement of the Work ; (ii) all aspects of bidding, awarding, and administration of the contracts for the Work; (iii) all construction management of any construction activities undertaken in connection with the Work, including survey and material testing; and (iv) development of a budget for the Work prior to award of any contract for the Work, taking into consideration available funding, including TUMF Regional Funds. 3.5 Term/Notice of Completion. The term of this Agreement shall be from the date first herein above written until: (i) the date RCTC formally accepts the Work as complete, pursuant to Section 3.2.3; (ii) termination of this Agreement pursuant to Section 3.9; or (iii) the City has fully satisfied its obligations under this Agreement, “including full repayment of TUMF Regional Funds to RCTC as provided herein”. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. 3.6 Representatives of the Parties. RCTC’s Executive Director, or his or her designee, shall serve as RCTC’s representative and shall have the authority to act on behalf of RCTC for all purposes under this Agreement. The City hereby designates the City Manager, or his or her designee, as the City’s representative to RCTC. The City’s representative shall have the authority to act on behalf of the City for all purposes under this Agreement and shall coordinate all activities of the Work under the City’s responsibility. The City shall work closely and cooperate fully with RCTC’s representative and any other agencies which may have jurisdiction over or an interest in the Work. 3.7 Expenditure of Funds by City Prior to Execution of Agreement. Nothing in this Agreement shall be construed to prevent or preclude the City from expending funds on the Work prior to the execution of the Agreement, or from being reimbursed by RCTC for such expenditures. However, the City understands and acknowledges that any expenditure of funds on the Work prior to the execution of the Agreement is made at the City’s sole risk, and that some expenditures by the City may not be eligible for reimbursement under this Agreement. 3.8 Review of Services. The City shall allow RCTC’s Representative to inspect or review the progress of the Work at any reasonable time in order to determine whether the terms of this Agreement are being met. Users/preprint/TUMF/Projects/Temecula/FVP I.C. and O.C. CETAP 4 55 3.9 Termination. This Agreement may be terminated for cause or convenience as further specified below. 3.9.1 Termination for Convenience. 3.9.1.1 Notice. Either RCTC or the City may, by written notice to the other party, terminate this Agreement, in whole or in part, for convenience by giving thirty (30) days' written notice to the other party of such termination and specifying the effective date thereof. 3.9.1.2 Effect of Termination for Convenience. In the event that the City terminates this Agreement for convenience, the City shall, within 180 days, repay to RCTC in full all TUMF Regional Funds provided to the City under this Agreement. In the event that RCTC terminates this Agreement for convenience, RCTC shall, within 90 days, distribute to the City TUMF Regional Funds in an amount equal to the aggregate total of all unpaid invoices which have been received from the City regarding the Work at the time of the notice of termination; provided, however, that RCTC shall be entitled to exercise its rights under Section 3.14.2, including but not limited to conducting a review of the invoices and requesting additional information. This Agreement shall terminate upon receipt by the non-terminating party of the amounts due it under this Section 3.9.1.2. 3.9.2 Termination for Cause. 3.9.2.1 Notice. Either RCTC or the City may, by written notice to the other party, terminate this Agreement, in whole or in part, in response to a material breach hereof by the other party, by giving written notice to the other party of such termination and specifying the effective date thereof. The written notice shall provide a 30 day period to cure any alleged breach. During the 30 day cure period, the Parties shall discuss, in good faith, the manner in which the breach can be cured. 3.9.2.2 Effect of Termination for Cause. In the event that the City terminates this Agreement in response to RCTC's uncured material breach hereof, RCTC shall, within 90 days, distribute to the City TUMF Regional Funds in an amount equal to the aggregate total of all unpaid invoices which have been received from the City regarding the Work at the time of the notice of termination. In the event that RCTC terminates this Agreement in response to the City's uncured material breach hereof, the City shall, within 180 days, repay to RCTC in full all TUMF Regional Funds provided to the City under this Agreement. Notwithstanding termination of this Agreement by RCTC pursuant to this Section 3.9.2.2, RCTC shall be entitled to exercise its rights under Section 3.14.2, including but not limited to conducting a review of the invoices and requesting additional information. This Agreement shall terminate upon receipt by the non-terminating party of the amounts due it under this Section 3.9.2.2. 3.9.3 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. 3.10 Prevailing Wages. The City and any other person or entity hired to perform services on the Work are alerted to the requirements of California Labor Code Sections 1770 et seq., which would require the payment of prevailing wages were the services or any portion thereof determined to be a public work, as defined therein. The City shall ensure compliance with these prevailing wage Users/preprint/TUMF/Projects/Temecula/FVP I.C. and O.C. CETAP 5 56 requirements by any person or entity hired to perform the Work. The City shall defend, indemnify, and hold harmless RCTC, its officers, employees, consultants, and agents from any claim or liability, including without limitation attorneys, fees, arising from its failure or alleged failure to comply with California Labor Code Sections 1770 et seq. 3.11 Progress Reports. RCTC may request the City to provide RCTC with progress reports concerning the status of the Work. 3.12 Indemnification. 3.12.1 City Responsibilities. In addition to the indemnification required under Section 3.10, the City agrees to indemnify and hold harmless RCTC, its officers, agents, consultants, and employees from any and all claims, demands, costs or liability arising from or connected with all activities governed by this Agreement including all design and construction activities, due to negligent acts, errors or omissions or willful misconduct of the City or its subcontractors. The City will reimburse RCTC for any expenditures, including reasonable attorneys’ fees, incurred by RCTC, in defending against claims ultimately determined to be due to negligent acts, errors or omissions or willful misconduct of the City. 3.12.2 RCTC Responsibilities. RCTC agrees to indemnify and hold harmless the City, its officers, agents, consultants, and employees from any and all claims, demands, costs or liability arising from or connected with all activities governed by this Agreement including all design and construction activities, due to negligent acts, errors or omissions or willful misconduct of RCTC or its sub-consultants. RCTC will reimburse the City for any expenditures, including reasonable attorneys’ fees, incurred by the City, in defending against claims ultimately determined to be due to negligent acts, errors or omissions or willful misconduct of RCTC. 3.12.3 Effect of Acceptance. The City shall be responsible for the professional quality, technical accuracy and the coordination of any services provided to complete the Work. RCTC’s review, acceptance or funding of any services performed by the City or any other person or entity under this agreement shall not be construed to operate as a waiver of any rights RCTC may hold under this Agreement or of any cause of action arising out of this Agreement. Further, the City shall be and remain liable to RCTC, in accordance with applicable law, for all damages to RCTC caused by the City’s negligent performance of this Agreement or supervision of any services provided to complete the Work. 3.13 Insurance. The City shall require, at a minimum, all persons or entities hired to perform the Work to obtain, and require their subcontractors to obtain, insurance of the types and in the amounts described below and satisfactory to the City and RCTC. Such insurance shall be maintained throughout the term of this Agreement, or until completion of the Work, whichever occurs last. 3.13.1 Commercial General Liability Insurance. Occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less than $1,000,000.00 per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to the Work or be no less than two times the occurrence limit. Such insurance shall: Users/preprint/TUMF/Projects/Temecula/FVP I.C. and O.C. CETAP 6 57 3.13.1.1 Name RCTC and City, and their respective officials, officers, employees, agents, and consultants as insured with respect to performance of the services on the Work and shall contain no special limitations on the scope of coverage or the protection afforded to these insured; 3.13.1.2 Be primary with respect to any insurance or self insurance programs covering RCTC and City, and/or their respective officials, officers, employees, agents, and consultants; and 3.13.1.3 Contain standard separation of insured provisions. 3.13.2 Business Automobile Liability Insurance. Business automobile liability insurance or equivalent form with a combined single limit of not less than $1,000,000.00 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. 3.13.3 Professional Liability Insurance. Errors and omissions liability insurance with a limit of not less than $1,000,000.00 Professional liability insurance shall only be required of design or engineering professionals. 3.13.4 Workers’ Compensation Insurance. Workers’ compensation insurance with statutory limits and employers’ liability insurance with limits of not less than $1,000,000.00 each accident. 3.14 Procedures for Distribution of TUMF Regional Funds to City. 3.14.1 Initial Payment by the City. The City shall be responsible for initial payment of all the Work costs as they are incurred. Following payment of such Work costs, the City shall submit invoices to RCTC requesting reimbursement of eligible Work costs. Each invoice shall be accompanied by detailed contractor invoices, or other demands for payment addressed to the City, and documents evidencing the City’s payment of the invoices or demands for payment. The City shall submit invoices not more often than monthly and not less often than quarterly. 3.14.2 Review and Reimbursement by RCTC. Upon receipt of an invoice from the City, RCTC may request additional documentation or explanation of the Work costs for which reimbursement is sought. Undisputed amounts shall be paid by RCTC to the City within thirty (30) days. In the event that RCTC disputes the eligibility of the City for reimbursement of all or a portion of an invoiced amount, the Parties shall meet and confer in an attempt to resolve the dispute. If the meet and confer process is unsuccessful in resolving the dispute, the City may appeal RCTC’s decision as to the eligibility of one or more invoices to RCTC’s Executive Director. The City may appeal the decision of the Executive Director to the full RCTC Board, the decision of which shall be final. Additional details concerning the procedure for the City’s submittal of invoices to RCTC and RCTC’s consideration and payment of submitted invoices are set forth in Exhibit “B”, attached hereto. 3.14.3 Funding Amount/Adjustment. If a post Work audit or review indicates that RCTC has provided reimbursement to the City in an amount in excess of the maximum eligible TUMF share of the Work, as determined by the TUMF Nexus Study, or has provided reimbursement Users/preprint/TUMF/Projects/Temecula/FVP I.C. and O.C. CETAP 7 58 of ineligible Work costs, the City shall reimburse RCTC for the excess or ineligible payments within 30 days of notification by RCTC. 3.15 Work Amendments. Changes to the characteristics of the Work, including the deadline for Work completion, and any responsibilities of the City or RCTC may be requested in writing by the City and are subject to the approval of RCTC’s Representative, which approval will not be unreasonably withheld, provided that extensions of time for completion of the Work shall be approved in the sole discretion of RCTC’s Representative. Nothing in this Agreement shall be construed to require or allow completion of the Work without full compliance with the California Environmental Quality Act (Public Resources Code Section 21000 et seq.; “CEQA”) and the National Environmental Policy Act of 1969 (42 USC 4231 et seq.), but the necessity of compliance with CEQA and NEPA shall not justify, excuse, or permit a delay in completion of the Work. 3.16 Conflict of Interest. For the term of this Agreement, no member, officer or employee of the City or RCTC, during the term of his or her service with the City or RCTC, as the case may be, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.17 Limited Scope of Duties. RCTC’s and the City’s duties and obligations under this Agreement are limited to those described herein. RCTC has no obligation with respect to the safety of any Work performed at a job site. In addition, RCTC shall not be liable for any action of City or its contractors relating to the condemnation of property undertaken by City or construction related to the Work. 3.18 Books and Records. Each party shall maintain complete, accurate, and clearly identifiable records with respect to costs incurred for the Work under this Agreement. They shall make available for examination by the other party, its authorized agents, officers or employees any and all ledgers and books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or related to the expenditures and disbursements charged to the other party pursuant to this disbursements charged to the other party pursuant to this Agreement. Further, each party shall furnish to the other party, its agents or employees such other evidence or information as they may require with respect to any such expense or disbursement charged by them. All such information shall be retained by the Parties for at least three (3) years following termination of this Agreement, and they shall have access to such information during the three-year period for the purposes of examination or audit. 3.19 Equal Opportunity Employment. The Parties represent that they are equal opportunity employers and they shall not discriminate against any employee or applicant of reemployment 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. 3.20 Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Users/preprint/TUMF/Projects/Temecula/FVP I.C. and O.C. CETAP 8 59 3.21 Attorneys’ Fees. If either party commences an action against the other party 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 costs of suit. 3.22 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.23 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. 3.24 Notification. All notices hereunder and communications regarding interpretation of the terms of the Agreement or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows: City of Temecula RCTC P.O. Box 9033 Riverside County Transportation Commission Temecula, CA 92589-9033 4080 Lemon, 3rd Floor Mailing address: P.O. Box 12008 ATTN: Riverside, CA 92502 City Manager ATTN: Executive Director Any notice so given shall be considered served on the other party three (3) days after deposit in the U.S. mail, first class postage prepaid, return receipt requested, 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. 3.25 Conflicting Provisions. In the event that provisions of any attached appendices or 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. 3.26 Contract Amendment. In the event that the Parties determine that the provisions of this Agreement should be altered, the Parties may execute a contract amendment to add any provision to this Agreement, or delete or amend any provision of this Agreement. All such contract amendments must be in the form of a written instrument signed by the original signatories to this Agreement, or their successors or designees. 3.27 Entire Agreement. This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes any previous agreements or understandings. 3.28 Validity of Agreement. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 3.29 Independent Contractors. Any person or entities retained by the City or any contractor shall be retained on an independent contractor basis and shall not be employees of RCTC. Any Users/preprint/TUMF/Projects/Temecula/FVP I.C. and O.C. CETAP 9 60 personnel performing services on the Work shall at all times be under the exclusive direction and control of the City or contractor, whichever is applicable. The City or contractor shall pay all wages, salaries and other amounts due such personnel in connection with their performance of services on the Work and as required by law. The City or consultant shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance and workers’ compensation insurance. [Signatures on following page] Users/preprint/TUMF/Projects/Temecula/FVP I.C. and O.C. CETAP 10 61 SIGNATURE PAGE TO AGREEMENT FOR THE FUNDING OF TUMF REGIONAL CETAP CORRIDOR IMPROVEMENTS RIVERSIDE COUNTY City of Temecula TRANSPORTATION COMMISSION By: By: ________________________ Scott Matas Chair City Manager APPROVED AS TO FORM: ATTEST: By: _________________________________ By: _________________________ Best, Best & Krieger Counsel to the Riverside County MMC, City Clerk Transportation Commission APPROVED AS TO FORM: By: _________________________ Peter M. Thorson City Attorney Users/preprint/TUMF/Projects/Temecula/FVP I.C. and O.C. CETAP 11 62 EXHIBIT “A” SCOPE OF WORK, FUNDING AND TIMETABLE SCOPE OF WORK French Valley Parkway/Interstate 1-15 Interchange Improvements (Phase II) Phase II will include construction of a two lane northbound collector/distributor beginning north of the Winchester Road on ramps and ending just north of the I-15/I-215 junction with connectors to I- 15 and I-215. FUNDING PHASE TUMF CETAP LOCAL OTHER TOTAL RIGHT OF WAY $673,562 $0 $0 $ DESIGN $798,947 $ $0 $ TOTAL $1,472,509 $ $0 $ TIMETABLE: START END PS&E SEP 2016 R/W SEP 2016 Users/preprint/TUMF/Temecula/Projects/FVP I.C. and O.C. CETAP 63 EXHIBIT “A-1” GUIDANCE for COMPLETION OF EXHIBIT A The following list of items generally identified as eligible or ineligible for TUMF Regional Funding reimbursement are consistent with those used to develop the costs for improvements in the first NEXUS Study prepared by WRCOG. In general, all improvements, with the exception of sidewalks, must be within the curbs of the roadway and extend no further than the curb returns at intersections. In addition, all improvements on or connecting to interstate and state route facilities shall be consistent with Caltrans Highway Design Manual standards. Items which are typically considered eligible include: • Asphalt concrete pavement, up to 16’ per lane, to accomplish a 12’ travel lane and ancillary treatment and appropriate base materials • Concrete curb and gutter and associated drainage – paved roadway shoulders and swale may be used as a substitute • Class II Bike Lanes • Paved and painted 14’ median, may be used as a dual left turn lanes • Traffic signals at intersections with state highways and major arterials which are also on the TUMF Network • Pavement striping and roadway signing as required. Items which are not typically considered eligible include: • Portland Cement pavement or other aesthetic pavement types (except at intersections) • Major rehabilitation or overlay of existing pavement in adjacent roadway lanes • Raised Medians • Parking Lanes • Landscaping • Lighting • Class I Bike Lanes Users/Preprint/TUMF/Projects/Temecula/FVP I.C. and O.C. CETAP 64 EXHIBIT “B” PROCEDURES FOR SUBMITTAL, CONSIDERATION AND PAYMENT OF INVOICES 1. RCTC recommends that the City incorporate Exhibit “B-1” into its contracts with any subcontractors to establish a standard method for preparation of invoices by contractors to the City and ultimately to RCTC for reimbursement of City contractor costs. 2. Each month the City shall submit an invoice for eligible Work costs incurred during the preceding month. The original invoice shall be submitted to RCTC’s Executive Director with a copy to RCTC’s Programming and Planning Manager. Each invoice shall be accompanied by a cover letter in a format substantially similar to that of Exhibit “B-2”. 3. Each invoice shall include documentation from each contractor used by the City for the Work, listing labor costs, subcontractor costs, and other expenses. Each invoice shall also include a monthly progress report and spreadsheets showing the hours or amounts expended by each contractor or consultant for the month and for the entire Work to date. Samples of acceptable task level documentation and progress reports are attached as Exhibits “B-4” and “B-5”. All documentation from the City’s contractors should be accompanied by a cover letter in a format substantially similar to that of Exhibit “B-3”. 4. If the City is seeking reimbursement for direct expenses incurred by City staff for eligible Work costs, the City shall detail the same level of information for its labor and any expenses in the same level of detail as required of contractors pursuant to Exhibit “B” and its attachments. 5. Charges for each task and milestone listed in Exhibit “A” shall be listed separately in the invoice. 6. Each invoice shall include a certification signed by the City Representative or his or her designee which reads as follows: “I hereby certify that the hours and salary rates submitted for reimbursement in this invoice are the actual hours and rates worked and paid to the consultants or contractors listed. Signed ________________________________ Title __________________________________ Date __________________________________ Invoice No. ____________________________ Users/Preprint/TUMF/Projects/Temecula/FVP IC –PH II - CETAP 65 7. RCTC will pay the City within 30 days after receipt by the Commission of an invoice. If RCTC disputes any portion of an invoice, payment for that portion will be withheld, without interest, pending resolution of the dispute, but the uncontested balance will be paid. 8. The final payment under this Agreement will be made only after: (i) the City has obtained a Release and Certificate of Final Payment from each contractor or consultant used on theWork; (ii) the City has executed a Release and Certificate of Final Payment; and (iii) the City has provided copies of each such Release to RCTC. Users/Preprint/TUMF/Projects/Temecula/FVP IC –PH II - CETAP 66 AGENDA ITEM 10 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 22, 2016 TO: Western Riverside County Programs and Projects Committee FROM: Shirley Medina, Planning and Programming Director THROUGH: John Standiford, Deputy Executive Director SUBJECT: Construction Funding Request for Interstate 215/Scott Road Interchange STAFF RECOMMENDATION: This item is for the Committee to: 1)Approve $8 million in federal Surface Transportation Program (STP) funds for the Interstate 215/Scott Road interchange improvement project; 2)Direct staff to amend the Federal Transportation Improvement Program (FTIP) and Regional Transportation Plan (RTP) to update the project description and funding for Phase I and Phase II improvements; and 3)Forward to the Commission for final action. BACKGROUND INFORMATION: The county of Riverside (County) is the lead agency for the Interstate 215/Scott Road interchange improvement project. The County began work on the project prior to the incorporation of the city of Menifee (Menifee) and is now three-quarters in Menifee and one quarter in the city of Murrieta. However, the County has continued to be the lead in delivering the project. The project was at 100 percent plans with an approved environmental document. However, in order to meet funding constraints, the County has worked with Caltrans on phasing the project. Phase I will consist of replacing the existing two lane Scott Road overcrossing with a new six- lane bridge, providing four through lanes and two turning lanes, and the additions of two new loop ramps and an auxiliary lane on I-215 between the ramps. The revalidation of the environmental document for Phase I is anticipated to be complete by mid-December 2016, and design is expected to be complete by January 2017. Therefore, the project will be ready to list in Spring 2017. Phase I is expected to have a 25-year life cycle, therefore, Phase II, which will include widening of Scott Road Bridge (to accommodate six through lanes and five turning lanes) and widening of Scott Road between Haun Road and Antelope Road, will be delivered at a future date. The project’s total cost for Phase I is estimated at $43 million and is identified on the Transportation Uniform Mitigation Fee (TUMF) program network. However, funding for this Agenda Item 10 67 project, in the amount of approximately $35 million, will not be available until the adoption of the 2016 TUMF Nexus Study, which is anticipated at the end of this calendar year. In the meantime, Menifee is working with the Western Riverside Council of Governments on a funding strategy that will allow the city to advance local funds in anticipation of the 2016 TUMF Nexus Study adoption. There still remains a funding shortfall of $8 million, and the County is requesting the Commission’s assistance in filling the funding gap. The I-215/Scott Road interchange improvement project is a multi-agency, regionally significant project that will enhance the investment the Commission has made along the I-215 corridor. Simply put, the ability to phase the project in fundable segments at a time when all funding sources are limited and preparing the environmental document under federal provisions (National Environmental Protection Act) makes it easier to find funding. Therefore, staff is recommending approval of $8 million in federal Surface Transportation Program (STP) funds to fully fund the project. Staff will need to prepare and submit an FTIP amendment for Phase I and an amendment to the RTP for Phase II to adjust the description, schedule, and funding. Once the FTIP is amended to reflect Phase 1 improvements, the revalidation of the project’s environmental document can be approved by Caltrans. The FTIP amendment is estimated to be federally approved by mid-November 2016. STP funds are administered by Caltrans; therefore there will be no fiscal impact to the Commission. Attachment: Funding Request Letter from the County Dated July 25, 2016 Agenda Item 10 68 69 70 AGENDA ITEM 11 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 22, 2016 TO: Western Riverside County Programs and Projects Committee FROM: Alex Menor, Capital Projects Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Amendment to Agreement with Jacobs Project Management Co. for Construction Management Services for the Interstate 215 Central Widening Project from Scott Road to Nuevo Road in the City of Perris STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 12-31-034-07, Amendment No. 7 to Agreement No. 12-31-034-00, with Jacobs Project Management Co. (Jacobs) to fund the cost of extended construction management, inspection, and testing services for the Interstate 215 Central widening project in the amount of $441,328, plus a contingency amount of $44,000, for an additional amount of $485,328, and a total amount not to exceed $14,690,339; 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 the use of the contingency amount as may be required for the project; 4) Approve reprogramming up to $500,000 of State Transportation Improvement Program (STIP) Regional Improvement Program (RIP) funds from construction capital to construction support; 5) Authorize the Executive Director, pursuant to legal counsel review, to execute Agreement No. 12-31-078-03, Amendment No. 3 to Agreement No. 12-31-078-00, with Caltrans to transfer up to $500,000 of STIP-RIP funds from construction capital to construction support; 6) Approve an increase of $250,000 in FY 2016/17 budget revenues and expenditures for construction management services related to the project; and 7) Forward to the Commission for final action. BACKGROUND INFORMATION: On May 9, 2012, the Commission approved Agreement No. 12-31-034-00 with Jacobs to provide construction management, engineering surveying, and testing services for the project in the amount of $11,807,334, plus a contingency amount of $1,192,666, for a total amount not exceed of $13 million. The original agreement amount was $11,531,975. Agenda Item 11 71 On October 3, 2012, the Commission and Jacobs entered into Amendment No. 1 to perform additional material field testing (gamma-gamma field testing) of cast-in-drilled-hole piles driven where groundwater was encountered on the project, at an estimated cost of $54,398 using contingency. On November 26, 2012, the Commission and Jacobs entered into Amendment No. 2 to bring on board a subconsultant to prepare a source inspection quality management plan, provide the project with a structural materials representative, and perform source inspection and testing, at an estimated cost of $603,500 using contingency. Caltrans was originally responsible to perform this work; however, a change in Caltrans policy at the start of construction shifted the responsibility to the local agency constructing the project. On May 16, 2013, the Commission and Jacobs entered into Amendment No. 3 to reflect changes in construction management staffing. This was a no cost amendment. On May 4, 2015, the Commission and Jacobs entered into Amendment No. 4, which authorized the use of the remaining contingency of $810,127 to fund the cost of extended construction management services, inspection, and testing services required for the project due to unforeseen circumstances and/or delays caused by weather or other parties. On June 10, 2015, the Commission approved Amendment No. 5 and authorized additional funding of $304,500 to fund the cost of the three-year plant establishment period and project close-out, for a total amount not to exceed $13,304,500. On January 13, 2016, the Commission approved Amendment No. 6 and authorized additional funding of $900,511 to fund the cost of completion of punch list items, installation of aesthetic panels on the retaining walls in the city of Perris, completion of three-year plant establishment period, and project close-out, for a total amount not to exceed $14,205,011. DISCUSSION: The I-215 Central widening project construction is now 100 percent complete. The three-year plant establishment period started on October 26, 2015. Work remaining includes securing Caltrans relief of maintenance of the roadway improvements, except for plant establishment, preparation of as-built plans, and completion of three-year plant establishment period (October 25, 2018) and project closeout. Amendment No. 6 with Jacobs anticipated securing Caltrans relief of maintenance of the roadway improvements, except for plant establishment, by the end of June 2016. Staff now anticipates securing relief of maintenance of the roadway improvements, except for plant establishment, by the end of October 2016. Additional funds are needed to complete the remaining work. Agenda Item 11 72 Accordingly, staff negotiated the scope and fee with Jacobs to perform construction management and inspection activities related to the above described work in the amount of $441,328 plus a contingency amount of $44,000, for an additional amount of $485,328 and a total amount not to exceed $14,690,339. Staff determined the services are consistent with the original scope and the cost to be reasonable and consistent with rates charged over the life of the contract. The following table is a summary of the agreement and related amendments: Commission Authorized Amount Commission Authorized Contingency Commission Authorized Total Jacobs Agreement Original Authorization: $11,807,334 $1,192,666 $13,000,000 $11,531,975 Amendments 1 - - - 54,398 2 - - - 603,500 3 - - - - 4 - - - 810,127 5 276,857 27,643 $304,500 304,500 6 818,646 81,865 $900,511 900,511 Subtotal 12,902,837 1,302,174 14,205,011 14,205,011 7 (proposed) 441,328 44,000 485,328 485,328 Totals $13,344,165 $1,346,174 $14,690,339 $14,690,339 Recommendation Staff recommends approval of Agreement No. 12-31-034-07, Amendment No. 7 to Agreement No. 12-31-034-00, with Jacobs to continue construction management and inspection activities for securing Caltrans relief of maintenance, except for plant establishment, preparation of as- built plans, completion of three-year plant establishment period, and contract close out. Funding for this amendment will be from unused state funds already programmed on the construction capital phase of the project. Accordingly, the funding agreement will need to be amended to reprogram funding from construction capital to construction support, and a budget adjustment to increase FY 2016/17 revenues and expenditures in the amount of $250,000 is required. Agenda Item 11 73 Financial Information In Fiscal Year Budget: No N/A Year: FY 2016/17 FY 2017/18+ Amount: $250,000 $235,328 Source of Funds: STIP/RIP Budget Adjustment: Yes N/A GL/Project Accounting No.: 003023 415 41502 262 31 41501 Revenues 003023 81302 00000 0000 262 31 81301 Expenditures Fiscal Procedures Approved: Date: 08/09/2016 Attachment: Draft Agreement No. 12-31-034-07 with Jacobs Agenda Item 11 74 17336.02200\24390802.2 1 Agreement No. 12-31-034-07 AMENDMENT NO. 7 TO THE AGREEMENT WITH JACOBS PROJECT MANAGEMENT CO. FOR CONSTRUCTION MANAGEMENT, MATERIALS TESTING AND CONSTRUCTION SURVEYING SERVICES FOR THE INTERSTATE 215 WIDENING, SCOTT ROAD TO NUEVO ROAD PROJECT 1. PARTIES AND DATE This Amendment No. 7 to the Agreement for Construction Management, Materials Testing and Construction Surveying Services is made and entered into as of this _____ day of ___________, 2016, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“Commission”) and JACOBS PROJECT MANAGEMENT CO. ("Consultant"), a Delaware corporation. 2. RECITALS 2.1 The Commission and the Consultant have entered into Agreement No. 12- 31-034-00 dated June 21, 2012, for the purpose of providing construction management, engineering surveying and testing services (the "Master Agreement"). 2.2 The Commission and Consultant have entered into Amendment No. 1 to the Master Agreement, dated October 3, 2012, for the purpose of clarifying costs for laboratory testing and equipment, clarifying the hourly rate of a subconsultant, to exercise the option to include the additional task of gamma- gamma logging as use of "wet method" construction is anticipated, and to provide for additional compensation for this additional task. 2.3 The Commission and Consultant have entered into Amendment No. 2 to the Master Agreement, dated November 26, 2012, for the purpose of including the preparation of a Source Inspection Quality Management Plan, the provision of a Structural Material Representative, and the performance of source inspection and testing. 75 17336.02200\24390802.2 2 2.4 The Commission and Consultant have entered into Amendment No. 3 to the Master Agreement, dated May 16, 2013, for the purpose of changing the Registered Landscape Architect Subconsultant and to update portions of the Master Agreement related thereto. 2.5 The Commission and Consultant have entered into Amendment No. 4 to the Master Agreement, dated May 4, 2015, for the purpose of releasing contingency to fund an increased level of Services required by the Commission for the project, to formalize, through the Commission’s standard amendment process, previously entered into binding letter agreements that amend certain terms of the Master Agreement, and to update portions of the Master Agreement related thereto, including an updated organizational chart, revisions to the rate range for Jacobs Quality Manager position, and addition of the Leighton Consulting Project Manager position. 2.6 The Commission and the Consultant have entered into Amendment No. 5 to the Master Agreement, dated August 25, 2015, for the purpose of revising the Scope of Services to add the required three year plant establishment period, project close-out and provide additional compensation for the I-215 Central Widening Project, and to include an updated Project organization chart. 2.7 The Commission and the Consultant have entered into an Amendment No. 6 to the Master Agreement, dated February 3, 2016, for the purposed of revising the rate range for the Jacobs Project Manager/RE position and for providing additional compensation for the continued provision of construction management, materials testing, and construction surveying services. 2.8 The parties now desire to amend the Master Agreement in order to revise the Scope of Services and to provide additional compensation for plant establishment and project closeout. 3. TERMS The Scope of Services for the Master Agreement shall be amended to include Services, as that term is defined in the Master Agreement, required for plant establishment and project closeout, as more fully described in Exhibit "A" attached to this Amendment and incorporated herein by reference. Services described in this Amendment shall be performed in 76 17336.02200\24390802.2 3 accordance with the Cost Proposal and Schedule of Services set forth in Exhibit “A”. 3.1 The maximum compensation for Services performed pursuant to this Amendment shall be Four Hundred Forty One Thousand Three Hundred Twenty Eight Dollars ($441,328), as further detailed in the attached Exhibit “A”. Work shall be performed at the rates set forth in the attached Exhibit “A”, or if not included herein, at the rates set forth in the Master Agreement, as previously amended. 3.2 The total not-to-exceed amount of the Master Agreement, as amended by this Amendment No. 7, shall be increased from Fourteen Million Ninety-Five Thousand Five Hundred Three Dollars (14,095,503) to Fourteen Million Five Hundred Thirty Six Thousand Eight Hundred Thirty One Dollars ($14,536,831). 3.3 Except as amended by this Amendment, all provisions of the Master Agreement, as previously amended by Amendment Nos. 1 through 6, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the parties under this Amendment. [Signatures on following page] 77 17336.02200\24390802.2 SIGNATURE PAGE TO AGREEMENT NO. 12-31-034-07 IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the date first herein above written. RIVERSIDE COUNTY JACOBS PROJECT TRANSPORTATION COMMISSION MANAGEMENT CO. By: _________________________ By: __________________________ Anne Mayer, Executive Director Signature __________________________ Name __________________________ Title APPROVED AS TO FORM: ATTEST: By: ____________________________ By: __________________________ Best Best & Krieger LLP Counsel to the Riverside County Its: __________________________ Transportation Commission * A corporation requires the signatures of two corporate officers. One signature shall be that of the chairman of board, the president or any vice president and the second signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or any assistant treasurer of such corporation. If the above persons are not the intended signators, evidence of signature authority shall be provided to RCTC. 78 17336.02200\24390802.2 EXHIBIT "A" [Attached behind this page] 79 AGENDA ITEM 12 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 22, 2016 TO: Western Riverside County Programs and Projects Committee FROM: Alex Menor, Capital Projects Manager THROUGH: Marlin Feenstra, Projects Delivery Director SUBJECT: Amendment to Transportation Uniform Mitigation Fee Regional Arterial Agreement for the Railroad Canyon Road at Interstate 15 Interchange Project in the City of Lake Elsinore STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 10-72-016-05, Amendment No. 5 to Agreement No. 10-72-016-00, with the city of Lake Elsinore (Lake Elsinore) for the Railroad Canyon Road/Interstate 15 interchange project to authorize an additional $350,000 in Transportation Uniform Mitigation Fee (TUMF) funds to complete project approval and environmental document (PA&ED) phase for a total PA&ED phase funding amount of $2,555,000; 2) Approve Agreement No. 11-31-107-05, Amendment No. 5 to Agreement No. 11-31-107-00, with SC Engineering to complete the PA&ED services associated with the project in the amount of $230,000, plus an additional contingency amount of $34,500 for an additional amount of $264,500, and a total amount not to exceed $1,494,509; 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, or designee, to approve release of contingency work up to the total authorized amount as may be required for the project; and 5) Forward to Commission for final action. BACKGROUND INFORMATION: Since May 2011, the Commission has managed the environmental and preliminary engineering phase of the project on behalf of Lake Elsinore. SC Engineering began the PA&ED phase work for Lake Elsinore and has continued the work for the Commission. The most recent action by the Commission on this project took place in May 2014, when the Commission approved Lake Elsinore’s request for staff to analyze the roundabout alternative (five consecutive roundabouts) as one of the project’s suite of alternatives. The total TUMF funding currently approved for the PA&ED phase is $2,205,000, and the SC Engineering contract authorization is a total amount not to exceed $1,230,009. Agenda Item 12 80 DISCUSSION: Due to the unique nature and complexity of the roundabout alternative, in August 2015, Caltrans initiated a peer review and outreach to other state department of transportation agencies to perform a full evaluation. In December 2015, staff executed Amendment No. 4 with SC Engineering for an additional amount of $74,000, using available contingency, to respond to peer review comments. The peer review required an extensive amount of staff and consultant effort, time, and numerous meetings with the Federal Highway Administration, Caltrans, Lake Elsinore, and roundabout experts to address peer reviewer comments. The peer review was completed in June 2016; however, this left a remaining contract authorization of $77,000, which staff determined is not sufficient to complete the PA&ED phase. In July 2016, to keep the project moving forward, staff redirected the remaining project budget to continue work on the critical path deliverables for the PA&ED phase. Because the remaining funds available are not sufficient to complete the PA&ED phase, staff also requested SC Engineering provide a scope and fee to complete PA&ED phase for the project. Staff reviewed SC Engineering’s proposal and recommends approval of this request to complete the PA&ED phase. Staff estimates a total additional cost of $350,000 to complete PA&ED, comprised of $230,000 for SC Engineering, $34,500 for contingency, and $85,500 for staff and other costs. Therefore, staff recommends approval to amend Agreement No. 11-31-107-00 in the amount of $230,000, plus a contingency amount of $34,500, for an additional amount of $264,500 and a total amount not to exceed $1,494,509. The additional cost to complete PA&ED will also require an amendment to the existing TUMF agreement between the Commission and Lake Elsinore to increase the project PA&ED funding phase by an additional $350,000 to $2,555,000. The Western Riverside Council of Governments has indicated the additional TUMF funds are available in the TUMF program it administers. The revised total TUMF funding for the PA&ED phase is below the proposed TUMF funding of $2,595,000 in the draft 2016 TUMF Nexus Study for the Railroad Canyon Road interchange project PA&ED phase. The draft 2016 TUMF Nexus study is anticipated to be approved by the end of 2016. Lake Elsinore supports the increase in TUMF funding for the PA&ED phase and will consider the item at the August 23 city council meeting. Therefore, staff recommends approval to amend the TUMF Agreement No. 10-72-016-00 to increase the PA&ED phase funding to $2,555,000. In order to recover some time in completing the peer review, staff will procure a consultant to prepare the plans, specifications, and estimates (PS&E) prior to completion of the PA&ED phase. Staff will return to the Commission to recommend approval of a PS&E consultant contract and a new project delivery agreement between Lake Elsinore and the Commission for future phases of this project. Agenda Item 12 81 Financial Information In Fiscal Year Budget: Yes Year: FY 2016/17 Amount: $350,000 Source of Funds: TUMF Regional Arterial Budget Adjustment: No GLA No.: 005104 81101 210 72 81101 $264,500 Engineering expenditures 005104 6XXXX 210 72 6XXXX $85,500 Commission staff and other costs Fiscal Procedures Approved: Date: 08/11/2016 Attachments: 1)Draft TUMF Funding Amendment—Agreement No. 10-72-016-05 2)Draft SC Engineering Amendment—Agreement No. 11-31-107-05 Agenda Item 12 82 BLANK 17336.02600\24591509.2 1 Agreement No. 10-72-016-05 AMENDMENT NO. 5 TO AGREEMENT FOR THE FUNDING OF TUMF REGIONAL ARTERIAL IMPROVEMENTS WITH THE CITY OF LAKE ELSINORE FOR THE RAILROAD CANYON ROAD AT I-15 IMPROVEMENTS 1. PARTIES AND DATE This Amendment No. 5 is made and entered into as of this ______ day of ___________, 2016, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“Commission”) and CITY OF LAKE ELSINORE ("City"). 2. RECITALS 2.1 The Commission and the City have entered into an agreement entitled "Agreement for the Funding of TUMF Regional Arterial Improvements with the City of Lake Elsinore" dated February 4, 2010 (the "Master Agreement"). The Master Agreement provides the terms and conditions, scope of work, schedule and funding amount for the Project Approval and Environmental Document ("PA&ED") Phase related to the Railroad Canyon Road at the I-15 Improvements Project (hereinafter the "Project"). The Project is more specifically described in Exhibit "B" of the Master Agreement. 2.2 The Commission and the City have entered into an Amendment No. 1 to the Master Agreement, dated June 6, 2011, (“Amendment No. 1”) for the purpose of increasing the Funding Amount and assuming the City's existing professional services agreement with SC Engineering for the PA&ED services for the Project. 2.3 The Commission and the City have entered into an Amendment No. 2 to the Master Agreement, dated December 19, 2013, (“Amendment No. 2”) for the purpose of increasing the Funding Amount and assuming the City's existing professional services agreement with SC Engineering for the PA&ED services for the Project. 2.4 The Commission and the City have entered into an Amendment No. 3 to the Master Agreement, dated July 15, 2014, (“Amendment No. 3”) for the purpose of providing additional TUMF funding for the completion of the PA&ED Phase of the Project. ATTACHMENT 1 83 17336.02600\24591509.2 2 2.5 The Commission and the City have entered into an Amendment No. 4 to the Master Agreement, dated April 12, 2016 (“Amendment No. 4”) for the purpose of providing additional TUMF funding for design and right of way related services for the Project. 2.6 The parties now desire to amend the Master Agreement in order to provide additional TUMF funding for the completion of the PA/ED Phase of the Project. 3. TERMS 3.1 The Funding Amount, as set forth in Section 3.2 of the Master Agreement, as amended by Amendment No. 4, shall be increased from Six Million Eight Hundred Five Thousand Dollars ($6,805,000) to Seven Million One Hundred Fifty Five Thousand Dollars (7,155,000). 3.2 The funding allocations identified in Exhibit "A" of the Master Agreement shall be replaced by the funding allocations identified in Exhibit "A" attached to this Amendment and incorporated herein by reference. The Funding Amount shall be utilized as specified in the attached Exhibit "A" and in accordance with the terms of the Master Agreement. 3.3 Except as amended by this Amendment, all provisions of the Master Agreement, as amended by Amendment Nos. 1, 2, 3 and 4, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the parties under this Amendment. [Signatures on following page] 84 17336.02600\24591509.2 3 SIGNATURE PAGE TO AGREEMENT NO. 10-72-016-05 IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the date first herein above written. RIVERSIDE COUNTY CITY OF LAKE ELSINORE TRANSPORTATION COMMISSION By: _____________________________ By: _________________________ Anne Mayer, Executive Director Brian Tisdale, Mayor APPROVED AS TO FORM: APPROVED AS TO FORM: By: _____________________________ By: _________________________ Best Best & Krieger LLP Barbara Leibold Counsel to the Riverside County City Attorney Transportation Commission 85 EXHIBIT “A” 17336.02600\24591509.2 EXHIBIT “A” FUNDING FUNDING: PHASE TUMF LOCAL TOTAL PA&ED $2,555,000 $0 $2,555,000 DESIGN $2,000,000 $0 $2,000,000 ROW $2,600,000 $0 $2,600,000 TOTAL $7,155,000 N/A $7,155,000 86 17336.01200\21715367.2 1 Agreement No. 11-31-107-05 AMENDMENT NO. 5 TO AGREEMENT FOR PROFESSIONAL SERVICES WITH SC ENGINEERING FOR THE RAILROAD CANYON/DIAMOND DRIVE INTERCHANGE AT THE 1-15 FREEWAY 1. PARTIES AND DATE This Amendment No. 5 is made and entered into as of this ______ day of ___________, 2016, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“Commission”) and REYES S. CHAVEZ, a sole proprietorship, d/b/a SC ENGINEERING ("Consultant"). 2. RECITALS 2.1 The City of Lake Elsinore ("City") and SC Engineering entered into an Agreement For Professional Services, dated December 1, 2005 (the "Master Agreement") for the purpose of retaining Consultant to prepare a Project Report and Draft Environmental Document ("PA&ED") necessary for the Railroad Canyon Road/Diamond Drive Interchange at the I-15 Freeway (the "Project"). 2.2 The Commission and City have entered into an Assignment and Assumption Agreement ("Assignment"), Commission Agreement No. 11- 31-107-00, for the purpose of assigning to the Commission all of the City's rights and interests in and to the Master Agreement, except as amended by Amendment No. 1. A copy of the Assignment is on file at the offices of the Commission. 2.3 Prior to entering into Amendment No. 1, and in order to ensure the timely progression of Consultant's services, the Commission and Consultant entered into a letter agreement for certain services related to the Project (the "Letter Agreement"). 2.4 The Commission and the Consultant have entered into an Amendment No. 1 to the Master Agreement, dated June 1, 2011, which amended and superseded the Letter Agreement, and incorporated additional terms and conditions into the Master Agreement. 2.5 The Commission and the Consultant have entered into an Amendment No. 2 to the Master Agreement, dated January 6, 2014, to revise the ATTACHMENT 2 87 17336.01200\21715367.2 2 Scope of Services and provide additional compensation to complete the PA&ED Phase of the Project. 2.6 The Commission and the Consultant have entered into an Amendment No. 3 to the Master Agreement, dated May 28, 2014, to include certain attachments that were part of the Consultant’s proposal and should have been incorporated as part of Amendment No. 1; include additional services required to complete the PA&ED Phase of the Project; and provide additional compensation. 2.7 The Commission and the Consultant have entered into an Amendment No. 4 to the Master Agreement, dated December 3, 2015, to include additional services required to complete the PA/ED Phase of the Project and to provide additional compensation for the said services. 2.8 The Commission and the Consultant now desire to amend the Master Agreement in order to provide continued services required to complete the PA&ED Phase of the Project and to provide additional compensation for said services. 3. TERMS 3.1 The Scope of Services of the Master Agreement shall be amended to include Services, as that term is defined in the Master Agreement, required to provide additional PA&ED Services as more fully described in Exhibit ‘A’ attached to this Amendment and incorporated herein by reference. 3.2 The maximum compensation for Services performed pursuant to this Amendment shall not exceed Two Hundred Thirty Thousand Dollars ($230,000). Work shall be performed at the rates set forth in the Master Agreement. 3.3 The total not-to-exceed value of the Master Agreement, as previously amended and as amended by this Amendment No. 4, shall be increased from One Million Two Hundred Thirty Thousand Nine Dollars (1,230,009) to One Million Four Hundred Sixty Thousand Nine Dollars (1,460,009). 3.4 Except as amended by this Amendment, all provisions of the Master Agreement, as amended by Amendment Nos. 1, 2, 3 and 4, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the parties under this Amendment. [Signatures on following page] 88 17336.01200\21715367.2 3 SIGNATURE PAGE TO AGREEMENT NO. 11-31-107-05 IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the date first herein above written. RIVERSIDE COUNTY REYES S. CHAVEZ TRANSPORTATION COMMISSION d/b/a SC ENGINEERING By: __________________________ _________________________ Anne Mayer, Executive Director Reyes S. Chavez, President APPROVED AS TO FORM: By: _____________________________ Best Best & Krieger LLP Counsel to the Riverside County Transportation Commission 89 Exhibit A 17336.01200\21715367.2 EXHIBIT "A" Scope of Work and Fee Proposal [Attached behind this page] 90 AGENDA ITEM 13 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 22, 2016 TO: Western Riverside County Programs and Projects Committee FROM: Patti Castillo, Capital Projects Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Agreement with Jacobs Project Management Company for Construction Management Services for the Construction of the Pachappa Underpass Project STAFF RECOMMENDATION: This item is for the Committee to: 1)Award Agreement No. 16-31-051-00 to Jacobs Project Management Company (Jacobs) to provide construction management (CM), materials testing, and construction surveying services for the Pachappa Underpass project, in the amount of $1,739,231, plus a contingency amount of $260,769, for a total amount not to exceed $2 million; 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 as may be required for the project; and 4)Forward to the Commission for final action. BACKGROUND INFORMATION: At its December 2015 meeting, the Commission supported Caltrans’ recommendation to delete the work along the Union Pacific Railroad (UPRR) line near the Pachappa Underpass from the SR-91 High Occupancy Vehicle Lanes project. The Commission authorized staff to repackage the work as the Pachappa Underpass project (Project) and serve as the lead agency responsible for advertising, administering, and award of the construction contract which includes the procurement of a CM team. At its July 2016 meeting, the Commission approved the use of federal Surface Transportation Program (STP) and repurposed federal earmarks for the construction capital and support. The environmental document has been completed, and Caltrans is completing the plans, specifications, and estimates. The current cost estimate for construction is approximately $12 million. Procurement Process: Pursuant to Government Code 4525 et seq, selection of architect, engineer, and related services shall be on the basis of demonstrated competence and on professional qualifications Agenda Item 13 91 necessary for the satisfactory performance of the services required. Therefore, staff used the qualification method of selection for the procurement of these services. Evaluation criteria included elements such as qualifications of firm, qualifications of personnel, project understanding and approach, understanding of materials testing and construction surveying services, and the ability to respond to the requirements set forth under the terms of a request for qualifications (RFQ). RFQ No. 16-31-051-00 for CM, materials testing, and construction surveying services for the Project was released by staff on February 23, 2016. A public notice was advertised in the Press Enterprise, and the RFQ was posted on the Commission’s PlanetBids website, which is accessible through the Commission’s website. Through PlanetBids, 120 firms downloaded the RFQ, 29 of these firms are located in Riverside County. A pre-proposal conference was held on March 1, 2016 and attended by 27 firms. Staff responded to all questions submitted by potential proposers prior to the March 8 clarification deadline date. Ten firms – Athalye Consulting Engineering Services Inc. (Athalye); Caltrop; Falcon Engineering Services (Falcon); Hill International; Jacobs; Michael Baker International; Parsons Transportation Group, Inc.; Southstar Engineering & Consulting, Inc. (Southstar); T.Y. Lin International; and Vali Cooper & Associates, Inc.; – submitted responsive and responsible statements of qualifications (SOQ) prior to the 2:00 p.m. submittal deadline on March 22. Three of the ten firms are located in Riverside County. Based on the evaluation criteria set forth in the RFQ, the firms were evaluated and scored by an evaluation committee comprised of Commission, Bechtel, and Caltrans staff. Based on the evaluation committee’s assessment of the written proposals and pursuant to the terms of the RFQ, the evaluation committee short listed and invited four firms (Athalye, Falcon, Jacobs, and Southstar) to the interview phase of the evaluation and selection process. Interviews were conducted on April 15, 2016. The evaluation committee conducted a subsequent evaluation of each firm, based on both written and interview components presented to the evaluation committee by each proposer. Accordingly, the evaluation committee recommends contract award to Jacobs to provide CM, materials testing, and construction surveying services for the Project, as it earned the highest total evaluation scores. Subsequently, staff has negotiated the scope (including the appropriate level of effort, labor categories/mix, etc.), cost, and schedule proposal from Jacobs for the project services and established a fair and reasonable price. As part of the federal procurement process for architectural and engineering services, the contract is subject to a pre-award audit by Caltrans Audits and Investigations Unit. The proposed cost is $1,739,231 and may change slightly as a result of the pre-award audit, but it will be finalized prior to Commission approval. Staff anticipates advertising for the construction contract by early 2017. Agenda Item 13 92 Recommendation Staff recommends award of Agreement No. 16-31-051-00 to Jacobs to perform CM services, materials testing, and construction surveying services for the Project, based on the final project scope and cost included with the attachment, in the amount of $1,739,231, plus a contingency amount of $260,769 for unanticipated changes, for a total amount not to exceed $2 million. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18 Amount: $1,000,000 $1,000,000 Source of Funds: STP, Repurposed Federal Earmarks Budget Adjustment: No N/A GL/Project Accounting No.: 003038 81302 00000 0000 222 31 81302 Fiscal Procedures Approved: Date: 08/08/2016 Attachment: Draft Agreement No. 16-31-051-00 Agenda Item 13 93 1 17336.00800\29028522.1 Agreement No. 16-31-051-00 PROFESSIONAL SERVICES AGREEMENT WITH FHWA FUNDING/ASSISTANCE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH JACOBS PROJECT MANAGEMENT CO. FOR PROJECT AND CONSTRUCTION MANAGEMENT SERVICES FOR THE PACHAPPA UNDERPASS COMPLETION AND RELATED WORK ON STATE ROUTE 91 BETWEEN POST MILES 18.39 TO 20.69 IN THE CITY OF RIVERSIDE, CALIFORNIA Parties and Date. This Agreement is made and entered into this ___ day of _______, 2016, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and JACOBS PROJECT MANAGEMENT CO. ("Consultant"), a Delaware corporation. The Commission and Consultant are sometimes referred to herein individually as “Party”, and collectively as the “Parties”. Recitals. A. 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”). B. 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. C. 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. D. A source of funding for payment for professional services provided under this Agreement is federal funds administered by the California Department of Transportation (“Caltrans”) from the United States Department of Transportation pursuant to the 94 2 17336.00800\29028522.1 following project/program: Congestion Mitigation Air Quality (“CMAQ”). This Agreement shall not be deemed to be approved by the Commission until the certification shown in Exhibit “E” attached hereto and incorporated herein by reference, is executed. E. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing Project Construction and Management services to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. F. The Commission desires to engage Consultant to render such services for the Pachappa Underpass Completion and Related Work on State Route 91 between Post Miles 18.39 to 20.69 in the City of Riverside, California (“Project”), as set forth in this Agreement. G. The Project includes various aspects including, but not limited to, the procurement of a Project construction contractor, the acquisition of right-of-way and the sale of toll revenue bonds to provide funding for the Project. Terms. 1. General Scope of Services. Consultant shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise, and incidental and customary work necessary to fully and adequately supply the professional construction management services, materials testing, and construction surveying services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 2. Commencement of Services. The Consultant shall commence work upon receipt of a written “Notice to Proceed” or “Limited Notice to Proceed” from Commission. 3. Pre-Award Audit. As a result of the federal funding for this Project, and to the extent Caltrans procedures apply in connection therewith, issuance of a “Notice to Proceed” may be contingent upon completion and approval of a pre-award audit. Any questions raised during the pre-award audit shall be resolved before the Commission will consider approval of this Agreement. The federal aid provided under this Agreement is contingent on meeting all Federal requirements and could be withdrawn, thereby entitling the Commission to terminate this Agreement, if the procedures are not completed. The Consultant’s files shall be maintained in a manner to facilitate Federal and State process reviews. In addition, the applicable federal agency, or Caltrans acting in behalf of a federal agency, may require that prior to performance of any work 95 3 17336.00800\29028522.1 for which Federal reimbursement is requested and provided, that said federal agency or Caltrans must give to Commission an “Authorization to Proceed”. 4. Caltrans Audit Procedures. Consultant and subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an Independent Cost Review (ICR) Audit, or a CPA ICR audit work paper review. If selected for audit or review, this Agreement, Consultant’s cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. This Agreement, Consultant’s cost proposal, and ICR shall be adjusted by Consultant and approved by the Commission’s contract manager to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into this Agreement by this reference if directed by Commission at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of the Agreement terms and cause for termination of this Agreement and disallowance of prior reimbursed costs. Additional audit provisions applicable to this Agreement are set forth in Sections 23 and 24 of this Agreement. 5. Term. 5.1 This Agreement shall go into effect on the date first set forth above, contingent upon approval by Commission, and Consultant shall commence work after notification to proceed by Commission’s Contract Administrator. This Agreement shall end on December 31, 2018, unless extended by contract amendment. 5.2 Consultant is advised that any recommendation for Agreement award is not binding on Commission until this Agreement is fully executed and approved by the Commission. 5.3 This Agreement shall remain in effect until the date set forth above, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. 6. Commission’s Contract Administrator. The Commission hereby designates the Commission’s Executive Director, or his or her designee, to act as its Contract Administrator for the performance of this Agreement (“Commission’s Contract Administrator”). Commission’s Contract Administrator shall have the authority to act on behalf of the Commission for all purposes under this Agreement. Commission’s Contract Administrator shall also review and give approval, as needed, to the details of 96 4 17336.00800\29028522.1 Consultant’s work as it progresses. Consultant shall not accept direction or orders from any person other than the Commission’s Contract Administrator or his or her designee. 7. Consultant’s Representative. Consultant hereby designates Gary Tomasetti, Project Engineer to act as its Representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her professional skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. Consultant shall work closely and cooperate fully with Commission’s Contract Administrator 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 Contract Administrator. 8. 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 herein. The key personnel for performance of this Agreement are identified in the organization chart set forth in Exhibit “A”, attached hereto and incorporated herein by reference. 9. Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Consultant further represents and warrants to the Commission that its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the Commission, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant’s errors and omissions. Any employee of Consultant or its sub- consultants who is determined by the Commission to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of 97 5 17336.00800\29028522.1 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. 10. 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. 11. Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel to perform the Services in conformance with such conditions. In order to facilitate Consultant’s conformance with the Schedule, the Commission shall respond to Consultant’s submittals in a timely manner. Upon request of Commission’s Contract Administrator, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 11.1 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 Contract Administrator. 11.2 Trend Meetings. Consultant shall conduct trend meetings with the Commission’s Contract Administrator and other interested parties, as requested by the Commission, on a bi weekly basis or as may be mutually scheduled by the Parties at a standard day and time. These trend meetings will encompass focused and informal discussions concerning scope, schedule, and current progress of Services, relevant cost issues, and future Project objectives. Consultant shall be responsible for the preparation and distribution of meeting agendas to be received by the Commission and other attendees no later than three (3) working days prior to the meeting. 98 6 17336.00800\29028522.1 11.3 Progress Reports. As part of its monthly invoice, Consultant shall submit a progress report, in a form determined by the Commission, which will indicate the progress achieved during the previous month in relation to the Schedule of Services. Submission of such progress report by Consultant shall be a condition precedent to receipt of payment from the Commission for each monthly invoice submitted. 12. Delay in Performance. 12.1 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. 12.2 Written Notice. If Consultant believes it is entitled to an extension of time due to conditions set forth in subsection 12.1, Consultant shall provide written notice to the Commission within seven (7) working days from the time Consultant knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of Consultant to provide such timely notice shall constitute a waiver by Consultant of any right to an excusable delay in time of performance. 12.3 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. 13. 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 Contract Administrator 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 Contract Administrator, in his or her sole discretion, determines the formally submitted work product to be not in accordance with the standard of care established under this contract, Commission’s Contract Administrator may require Consultant to revise and resubmit the work at no cost to the Commission. 14. 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. 99 7 17336.00800\29028522.1 15. Opportunity to Cure; Inspection of Work. Commission may provide Consultant an opportunity to cure, at Consultant’s expense, all errors and omissions which may be disclosed during Project implementation. Should Consultant fail to make such correction in a timely manner, such correction may be made by the Commission, and the cost thereof charged to Consultant. Consultant shall allow the Commission’s Contract Administrator, Caltrans and FHWA to inspect or review Consultant’s work in progress at any reasonable time. 16. Claims Filed by Contractor. 16.1 If claims are filed by the Commission’s contractor for the Project (“Contractor”) relating to work performed by Consultant’s personnel, and additional information or assistance from the Consultant’s personnel is required by the Commission in order to evaluate or defend against such claims; Consultant agrees to make reasonable efforts to make its personnel available for consultation with the Commission’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings. 16.2 Consultant’s personnel that the Commission considers essential to assist in defending against Contractor claims will be made available on reasonable notice from the Commission. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for the Consultant’s personnel services under this Agreement. 16.3 Services of the Consultant’s personnel and other support staff in connection with Contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this Agreement in order to finally resolve the claims. 16.4 Nothing contained in this Section shall be construed to in any way limit Consultant’s indemnification obligations contained in Section 29. In the case of any conflict between this Section and Section 29, Section 29 shall govern. This Section is not intended to obligate the Commission to reimburse Consultant for time spent by its personnel related to Contractor claims for which Consultant is required to indemnify and defend the Commission pursuant to Section 29 of this Agreement. 17. Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term herein, 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 100 8 17336.00800\29028522.1 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. 18. 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. 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. 19. Fees and Payment. 19.1 The method of payment for this Agreement will be based on actual cost plus a fixed fee. Commission shall reimburse Consultant for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by Consultant in performance of the Services. Consultant shall not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved Consultant cost proposal attached hereto as Exhibit “C” and incorporated herein by reference (“Cost Proposal”) unless additional reimbursement is provided for by a written amendment. In no event shall Consultant be reimbursed for overhead costs at a rate that exceeds Commission’s approved overhead rate set forth in the Cost Proposal. In the event that Commission determines that a change to the Services from that specified in the Cost Proposal and this Agreement is required, the contract time or actual costs reimbursable by Commission shall be adjusted by written amendment to accommodate the changed work. The maximum total cost as specified in herein shall not be exceeded, unless authorized by a written amendment. 19.2 In addition to the allowable incurred costs, Commission shall pay Consultant a fixed fee of Ninety Four Thousand Eight Hundred Eighty Four Dollars ($94,884). The fixed fee is nonadjustable for the term of this Agreement, except in the 101 9 17336.00800\29028522.1 event of a significant change in the Scope of Services, and such adjustment is made by written amendment. 19.3 Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal. 19.4 When milestone cost estimates are included in the approved Cost Proposal, Consultant shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate. 19.5 Progress payments shall be made monthly in arrears based on Services provided and allowable incurred costs. A pro rata portion of Consultant’s fixed fee shall be included in the monthly progress payments. If Consultant fails to submit the required deliverable items according to the schedule set forth in the Scope of Services, Commission shall have the right to delay payment or terminate this Agreement. 19.6 No payment shall be made prior to approval of any Services, nor for any Services performed prior to approval of this Agreement. 19.7 Consultant shall be reimbursed, as promptly as fiscal procedures will permit upon receipt by Commission’s Contract Administrator of itemized invoices in triplicate. Invoices shall be submitted no later than 45 calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Agreement number and project title. Final invoice must contain the final cost and all credits due Commission including any equipment purchased under the Equipment Purchase provisions of this Agreement. The final invoice should be submitted within 60 calendar days after completion of Consultant’s work. Invoices shall be mailed to Commission’s Contract Administrator at the following address: Riverside County Transportation Commission Attention: Accounts Payable P.O. 12008 Riverside, CA 92502 19.8 The total amount payable by Commission including the fixed fee shall not exceed One Million Seven Hundred Thirty Nine Thousand Two Hundred Thirty One Dollars ($1,739,231). 19.9 Salary increases shall be reimbursable if the new salary is within the salary range identified in the approved Cost Proposal and is approved by Commission’s Contract Administrator. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable. 102 10 17336.00800\29028522.1 19.10 Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission’s Contract Administrator. 19.11 All subcontracts in excess of $25,000 shall contain the above provisions. 20. Disputes. 20.1 Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by mutual agreement of the Parties shall be decided by a committee consisting of RCTC’s Contract Administrator and the Director of Capital Projects, who may consider written or verbal information submitted by Consultant. 20.2 Not later than 30 days after completion of all Services under this Agreement, Consultant may request review by the Commission’s Executive Director of unresolved claims or disputes, other than audit. The request for review will be submitted in writing. 20.3 Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement. 21. Termination. 21.1 Commission reserves the right to terminate this Agreement for any or no reason upon thirty (30) calendar days written notice to Consultant with the reasons for termination stated in the notice. 21.2 Commission may terminate this Agreement with Consultant should Consultant fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, Commission may proceed with the work in any manner deemed proper by Commission. If Commission terminates this Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant under this Agreement prior to termination, unless the cost of completion to Commission exceeds the funds remaining in this Agreement. In such case, the overage shall be deducted from any sum due Consultant under this Agreement and the balance, if any, shall be paid to Consultant upon demand. 21.3 In addition to the above, payment upon termination 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 Contract Administrator 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. 103 11 17336.00800\29028522.1 21.4 Discontinuance of Services. Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein, and deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 21.5 Effect of Termination for Cause. In addition to the above, 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 herein. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 21.6 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. 21.7 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. 21.8 Consultant may not terminate this Agreement except for cause. 22. Cost Principles and Administrative Requirements. 22.1 Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items. 22.2 Consultant also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. 22.3 Any costs for which payment has been made to Consultant that are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to Commission. 22.4 All subcontracts in excess of $25,000 shall contain the above provisions. 23. Retention of Records/Audit. For the purpose of determining compliance with Public Contract Code 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with 104 12 17336.00800\29028522.1 the performance of this Agreement pursuant to Government Code 8546.7; Consultant, subconsultants, and Commission shall maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of this Agreement, including but not limited to, the costs of administering this Agreement. All parties shall make such materials available at their respective offices at all reasonable times during this Agreement period and for three years from the date of final payment under this Agreement. The state, State Auditor, Commission, FHWA, or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of Consultant and it’s certified public accountants (CPA) work papers that are pertinent to this Agreement and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested. Subcontracts in excess of $25,000 shall contain this provision. 24. Audit Review Procedures. 24.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by Commission’s Chief Financial Officer. 24.2 Not later than 30 days after issuance of the final audit report, Consultant may request a review by Commission’s Chief Financial Officer of unresolved audit issues. The request for review shall be submitted in writing. 24.3 Neither the pendency of a dispute nor its consideration by Commission shall excuse Consultant from full and timely performance, in accordance with the terms of this Agreement. 25. Subcontracting. 25.1 Nothing contained in this Agreement or otherwise, shall create any contractual relation between Commission and any subconsultant(s), and no subcontract shall relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to be as fully responsible to Commission for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Consultant. Consultant’s obligation to pay its subconsultant(s) is an independent obligation from Commission’s obligation to make payments to the Consultant. 25.2 Consultant shall perform the Services with resources available within its own organization and no portion of the Services shall be subcontracted without written authorization by Commission’s Contract Administrator, except that, which is expressly identified in the approved Cost Proposal. 25.3 Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to Consultant by Commission. 105 13 17336.00800\29028522.1 25.4 Any subcontract in excess of $25,000 entered into as a result of this Agreement shall contain all the provisions stipulated in this contract to be applicable to subconsultants. 25.5 Any substitution of subconsultant(s) must be approved in writing by Commission’s Contract Administrator prior to the start of work by the subconsultant(s). 25.6 Exhibit “C” Part 2 also sets forth the rates at which each subconsultant shall bill the Consultant for Services and that are subject to reimbursement by the Commission to Consultant. Additional Direct Costs, as defined in Exhibit “C” Part 1 shall be the same for both the Consultant and all subconsultants, unless otherwise identified in Exhibit “C” Part 2. The subconsultant rate schedules and cost proposals contained herein are for accounting purposes only. 26. Equipment Purchase 26.1 Prior authorization, in writing, by Commission’s Contract Administrator shall be required before Consultant enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment, or Consultant services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs. 26.2 For purchase of any item, service or consulting work not covered in Consultant’s Cost Proposal and exceeding $5,000 prior authorization by Commission’s Contract Administrator is required. Three competitive quotations must be submitted with the request for such purchase, or the absence of bidding must be adequately justified. 26.3 Any equipment purchased as a result of this contract is subject to the following: Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, Commission shall receive a proper refund or credit at the conclusion of this Agreement, or if this Agreement is terminated, Consultant may either keep the equipment and credit Commission in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established Commission procedures; and credit Commission in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to Commission and Consultant. If Consultant determines to sell the equipment, the terms and conditions of such sale must be approved in advance by Commission. 2 CFR, Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the project. 106 14 17336.00800\29028522.1 26.4 All subcontracts in excess $25,000 shall contain the above provisions. 27. Labor Code Requirements. 27.1 Prevailing Wages. (a) Consultant shall comply with the State of California’s General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the Services. (b) Any subcontract entered into as a result of this contract, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Section. I When prevailing wages apply to the Services described in the Scope of Services, transportation and subsistence costs shall be reimbursed at the minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov. (d) Copies of the prevailing rate of per diem wages in effect at commencement of this Agreement are on file at the Commission’s offices. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 27.2 DIR Registration. 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. 27.3 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day’s work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day (“Eight-Hour Law”), unless Consultant or the Services are 107 15 17336.00800\29028522.1 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. 27.4 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 28. Ownership of Materials/Confidentiality. 28.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no 108 16 17336.00800\29028522.1 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. 28.2 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 Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 28.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, 109 17 17336.00800\29028522.1 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. 28.4 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. 29. Indemnification. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold Commission, Caltrans and their 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, inverse condemnation, and any claims related to property acquisition and relocation rules or failure to detect or abate hazardous materials, which are brought by a third party, and which , in any manner arise out of or are 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, Caltrans, and their directors, officials, officers, employees, consultants, agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against Commission, Caltrans or their directors, officials, officers, employees, consultants, agents, or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse Commission, Caltrans and their 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, Caltrans or their directors, officials officers, employees, consultants, agents, or volunteers. Notwithstanding the foregoing, to the extent Consultant’s Services are subject to Civil 110 18 17336.00800\29028522.1 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 shall survive expiration or termination of this Agreement. 30. Insurance. 30.1 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. 30.2 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: $10,000,000 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. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; (2) Automobile Liability: $10,000,000 per accident for bodily injury and property damage. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; and (3) 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. 30.3 Professional Liability. Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following 111 19 17336.00800\29028522.1 completion of the Project, errors and omissions liability insurance appropriate to their profession. For Consultant, such insurance shall be in an amount not less than $5,000,000 per claim. This insurance shall be endorsed to include contractual liability applicable to this 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. Subconsultants of Consultant shall obtain such insurance in an amount not less than $2,000,000 per claim. Notwithstanding the foregoing, the Commission may consider written requests to lower or dispense with the errors and omissions liability insurance requirement contained in this Section for certain subconsultants of Consultant, on a case-by-case basis, depending on the nature and scope of the Services to be provided by the subconsultant. Approval of such request shall be in writing, signed by the Commission’s Contract Administrator. 30.4 Aircraft Liability Insurance. Prior to conducting any Services requiring use of aircraft, Consultant shall procure and maintain, or cause to be procured and maintained, aircraft liability insurance or equivalent form, with a single limit as shall be required by the Commission. Such insurance shall include coverage for owned, hired and non-owned aircraft and passengers, and shall name, or be endorsed to name, the Commission, Caltrans and their directors, officials, officers, employees and agents as additional insureds with respect to the Services or operations performed by or on behalf of the Consultant. 30.5 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (a) General Liability. (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. 112 20 17336.00800\29028522.1 (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s or Caltrans’ 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, Caltrans and their 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, Caltrans and their 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, Caltrans and their 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. I Workers’ Compensation and Employers Liability Coverage. (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (d) All Coverages. (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, Caltrans and their 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 113 21 17336.00800\29028522.1 coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims- made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (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. 114 22 17336.00800\29028522.1 (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: 30.6 Deductibles and Self-Insurance Retentions. Any deductibles or self- insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 30.7 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. 30.8 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 30.9 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. 30.10 Other Insurance. At its option, the Commission may require such additional coverage(s), limits and/or the reduction of deductibles or retentions it considers reasonable and prudent based upon risk factors that may directly or indirectly impact the Project. In retaining this option Commission does not warrant Consultant’s insurance program to be adequate. Consultant shall have the right to purchase insurance in addition to the insurance required in this Section. 115 23 17336.00800\29028522.1 31. 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. As between Consultant and the construction contractors only, the construction contractors shall remain solely responsible for construction safety notwithstanding any safety obligations of Consultant at the jobsite. The foregoing sentence shall not impact nor in any way modify or alter Consultant’s indemnity and defense obligations to the Commission, as set forth in Section 29 of this Agreement, not any of Consultant’s duties or obligations set forth under this Agreement, including the attached exhibits. Pursuant to the authority contained in Section 591 of the Vehicle Code, the Commission has determined that the Project will contain areas that are open to public traffic. Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles. 32. 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 116 24 17336.00800\29028522.1 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. 33. Prohibited Interests. 33.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the Commission shall have the right to rescind this Agreement without liability. 33.2 Consultant Conflict of Interest (Construction Management/ Administration). (a) Consultant shall disclose any financial, business, or other relationship with Commission that may have an impact upon the outcome of this Agreement, or any ensuing Commission construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing Commission construction project, which will follow. (b) Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of Services under this Agreement. I Any subcontract in excess of $25,000 entered into as a result of this contract, shall contain all of the provisions of this Article. (d) Consultant hereby certifies that neither Consultant, its employees, nor any firm affiliated with Consultant providing Services on this Project prepared the Plans, Specifications, and Estimate for any construction project included within this Agreement. An affiliated firm is one, which is subject to the control of the same persons through joint- ownership, or otherwise. I Consultant further certifies that neither Consultant, nor any firm affiliated with Consultant, will bid on any construction subcontracts included within the construction contract. Additionally, Consultant certifies that no person working under this Agreement is also employed by the construction contractor for any project included within this Agreement. 117 25 17336.00800\29028522.1 (f) Except for subconsultants whose services are limited to materials testing, no subconsultant who is providing service on this contract shall have provided services on the design of any project included within this contract. 33.3 Commission 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. 33.4 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. 33.5 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 the terms herein, 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. 33.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this contract 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, Commission shall have the right in its discretion; to terminate this Agreement without liability; to pay only for the value of the work actually performed; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration. 33.7 Prohibition Against Expenditure of Commission, 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 118 26 17336.00800\29028522.1 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 “H”, Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached instructions. (b) The Consultant’s certification provided in this Section is a material representation of fact upon which reliance was placed when this Agreement was entered into, and is a prerequisite for entering into this Agreement pursuant to Section 1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the disclosure and certification requirements set forth in Section 1352, Title 31, US. Code may result in a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. I The Consultant also agrees by signing this Agreement that he/she shall require that the language set forth in this Section be included in all Consultant subcontracts which exceed $100,000, and that all such subcontractors shall certify and disclose accordingly. 33.8 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. 34. 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. 35. Right to Employ Other Consultants. Commission reserves the right to employ other consultants in connection with the Project. 36. Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 37. Disputes; Attorneys’ Fees. 119 27 17336.00800\29028522.1 37.1 Prior to commencing any action hereunder, the Parties shall attempt in good faith to resolve any dispute arising between them. The pendency of a dispute shall not excuse Consultant from full and timely performance of the Services. 37.2. If the Parties are unable to resolve a dispute after attempting in good faith to do so, the Parties may seek any other available remedy to resolve the dispute. 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. 38. Time of Essence. Time is of the essence for each and every provision of this Agreement. 39. 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. 39.1 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: Jacobs Project Management Co. Riverside County Transportation Commission 3257 E. Guasti Road 4080 Lemon Street, 3rd Floor Suite 120 Riverside, CA 92501 Ontario, CA 91761 Attn: Gary Tomasetti 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. 40. 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. 41. Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 120 28 17336.00800\29028522.1 42. 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. 43. 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. 44. Provisions Applicable When Federal Department of Transportation Funds Are Involved. When funding for the Services provided by this Agreement are provided, in whole or in part, from the United States Department of Transportation, Consultant shall also fully and adequately comply with the provisions included in Exhibit “D” (Federal Department of Transportation Requirements and California Department of Transportation (Caltrans) DBE program requirements) attached hereto and incorporated herein by reference. 45. 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. 46. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 47. 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. 48. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 49. Attorney Client Privilege. The Parties recognize that, during the Project, the Commission and its attorneys will engage in communication that gives rise to an attorney client privilege of confidentiality (“Confidential Communication”). Given the nature of the work done by Consultant for the Commission, it may be necessary for the Consultant to participate in Confidential Communications. To the extent that (i) the Consultant is a party to any Confidential Communication, and (ii) a third party seeks discovery of such communications, then the Consultant shall be deemed to be an agent of the Commission solely for purposes of preserving any attorney client privilege in the relevant Confidential Communication. Any such attorney client privilege shall be held by the Commission and the Consultant is not authorized to waive that privilege or, otherwise, disclose such Confidential Communication except as set forth below. This Section is intended to maintain the privilege in any privileged Confidential Communications that are (1) between and among Commission, Consultant, and 121 29 17336.00800\29028522.1 Commission’s attorneys; (2) between Consultant (on behalf of the Commission) and Commission’s attorneys; (3) Confidential Communications that occur in Closed Session meetings wherein the Commission, the Commission’s attorneys and Consultant are present; and (4) between Commission and Consultant wherein the substance of the Confidential Communication is conveyed to/from the Consultant. Consultant may disclose a Confidential Communication to the extent such disclosure is required by legal process, by a court of competent jurisdiction or by any other governmental authority, provided that any such disclosure shall be limited to the specific part of the Confidential Communication required to be disclosed and provided that Consultant first comply with the requirements set forth in this paragraph. As soon as practicable after Consultant becomes aware that it is required, or may become required, to disclose the Confidential Communication for such reason, Consultant shall notify the Commission in writing, in order to allow the Commission to pursue legal remedies designed to limit the Confidential Communication required to be disclosed or to assure the confidential treatment of the disclosed information following its disclosure. Consultant shall cooperate with the Commission, on a reimbursable basis, to assist the Commission in limiting the scope of disclosure or assuring the confidential treatment of any disclosed information. 50. 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. 51. 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. 52. 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. 53. Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 54. 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. 122 30 17336.00800\29028522.1 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT WITH FHWA FUNDING/ASSISTANCE IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: Scott Matas Chair Approved as to Form: By: Best, Best & Krieger LLP General Counsel CONSULTANT JACOBS PROJECT MANAGEMENT CO. By: Signature Name Title ATTEST: By: Its: ___________________________ 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 AGENDA ITEM 14 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 22, 2016 TO: Western Riverside County Programs and Projects Committee FROM: Patricia Castillo, Capital Projects Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: List of Pre-Qualified Firms and Agreements for On-Call Geotechnical Investigation – Laboratory and Field Testing of Materials Services STAFF RECOMMENDATION: This item is for the Committee to: 1) Award the following agreements to provide on-call geotechnical investigation – laboratory and field testing of materials services for a three-year term with two one-year options to extend the agreement, in an amount not to exceed an aggregate value of $500,000; a) Agreement No. 16-31-078-00 with Converse Consultants (Converse); b) Agreement No. 16-31-112-00 with Leighton Consulting Inc. (Leighton); and c) Agreement No. 16-31-113-00 with Ninyo & Moore Geotechnical & Environmental Sciences Consultants (Ninyo & Moore) 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, including option years, 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: The Commission has a periodic need for the provision of comprehensive on-call geotechnical investigation – laboratory and field testing of materials services. Typically, the Commission obtains geotechnical investigation and lab testing services through subconsultants to primary consultant contracts for preliminary design or construction management. There are occasions in which these services will be needed independent of a design or construction contract. Examples of this include station capital projects where construction management will be administered by Commission and Bechtel staff. Procurement Process Pursuant to Government Code 4525 et seq, selection of architectural, engineering, and related services, including construction project management, shall be on the basis of demonstrated Agenda Item 14 172 competence and on professional qualifications necessary for the satisfactory performance of the services required. Therefore, staff used the qualification method of selection for the procurement of these services. Request for Qualifications (RFQ) No. 16-31-078-00 for on-call geotechnical investigation – laboratory and field testing of materials services was released by staff on April 12, 2016. A public notice was advertised in the Press Enterprise, and the RFQ was posted on the Commission’s PlanetBids website, which is accessible through the Commission’s website. Utilizing PlanetBids, emails were sent to 127 firms, 26 of which are located in Riverside County. Through the PlanetBids site, 42 firms downloaded the RFQ; 13 of these firms are located in Riverside County. Staff responded to all questions submitted by potential proposers prior to the May 3 clarification deadline date. Ten firms – CTE South (Riverside); Converse (Redlands); ES Engineering Services, LLC (Orange); Heider Inspection Group (Ontario); Inland Foundation Engineering, Inc. (San Jacinto); Koury Engineering & Testing, Inc. (Chino); Leighton (Temecula); Ninyo & Moore (Rancho Cucamonga); RMA Group (Rancho Cucamonga); and Twining, Inc. (San Bernardino) – submitted statements of qualifications (SOQ) prior to the 2:00 p.m. submittal deadline on May 23. Utilizing the evaluation criteria set forth in the RFQ, all firms were evaluated and scored by an evaluation committee comprised of Commission and Bechtel staff. Based on the evaluation committee’s assessment of the SOQs and pursuant to the terms of the RFQ, the evaluation committee short listed and invited five firms to the interview phase of the evaluation and selection process. Interviews of the shortlisted firms – Converse; Leighton; Ninyo & Moore; RMA Group and Twining, Inc. – were conducted on June 22. The evaluation committee recommends contract award to Converse, Leighton, and Ninyo & Moore, 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 qualification 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. Agenda Item 14 173 Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18+ Amount: $ 50,000 $ 450,000 Source of Funds: Measure A Western County Highway/ Rail, Proposition 1B grant funds Budget Adjustment: No N/A GL/Project Accounting No.: 0030XX 81110 00000 0000 262 31 81101 0030XX 81302 00000 0000 262 31 81301 0040XX 81110 00000 0000 265 33 81101 0040XX 81302 00000 0000 265 33 81301 Fiscal Procedures Approved: Date: 08/08/2016 Attachment: Draft Standard Form On-Call Professional Services Agreement Agenda Item 14 174 AGREEMENT NO. 16-31-078-00 PROFESSIONAL SERVICES AGREEMENT WITH FHWA AND/OR FTA FUNDING/ASSISTANCE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH [CONSULTANT] FOR ON-CALL GEOTECHNICAL INVESTIGATION- LABORATORY AND FIELD TESTING OF MATERIALS 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., California 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 geotechnical investigation, laboratory and field testing of materials services to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. 17336.00023\9602162.1 175 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 geotechnical investigation, laboratory and field testing of materials services 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. 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. 3.2 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 occurs first, to the later of [INSERT AGREEMENT EXPIRATION DATE], or the date on which all Services 2 17336.00023\9602162.1 176 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. 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)] 3.7 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 3 17336.00023\9602162.1 177 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 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 4 17336.00023\9602162.1 178 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 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 5 17336.00023\9602162.1 179 effective date of termination. This Agreement shall terminate on the effective date of the Notice of Termination. 3.14.4 Effect of Termination for Cause. If the termination is for cause, Consultant shall be compensated for those Services which have been fully and adequately completed and accepted by the Commission as of the date the Commission provides the Notice of Termination. In such case, the Commission may take over the work and prosecute the same to completion by contract or otherwise. Further, Consultant shall be liable to the Commission for any reasonable additional costs incurred by the Commission to revise work for which the Commission has compensated Consultant under this Agreement, but which the Commission has determined in its sole discretion needs to be revised, in part or whole, to complete the Project because it did not meet the standard of care established in Section 3.9. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 3.14.5 Cumulative Remedies. The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 3.14.6 Procurement of Similar Services. In the event this Agreement is terminated, in whole or in part, as provided by this Section, the Commission may procure, upon such terms and in such manner as it deems appropriate, services similar to those terminated. 3.14.7 Waivers. Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. 3.15 Schedule and Progress of Services. 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 6 17336.00023\9602162.1 180 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 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. 7 17336.00023\9602162.1 181 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 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 8 17336.00023\9602162.1 182 Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 3.18.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.18.4 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 9 17336.00023\9602162.1 183 suits, actions or other legal proceedings of every kind that may be brought or instituted against Commission, its directors, officials, officers, employees, consultants, agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against Commission or its directors, officials, officers, employees, consultants, agents, or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse Commission and its directors, officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Commission, its directors, officials officers, employees, consultants, agents, or volunteers. Notwithstanding the foregoing, to the extent Consultant’s Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. Consultant’s obligations as set forth in this Section 3.19 shall survive expiration or termination of this Agreement. 3.20 Insurance. 3.20.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section, in 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’ 10 17336.00023\9602162.1 184 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 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, 11 17336.00023\9602162.1 185 officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (C) Workers’ Compensation and Employers Liability Coverage. (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. (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. 12 17336.00023\9602162.1 186 (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (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 13 17336.00023\9602162.1 187 before work commences. The Commission 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. 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. 3.21.1 Payment of Compensation. Consultant shall submit a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the Statement. Charges specific to each Milestone listed in the Schedule of Services shall be listed separately on an attachment to each statement. Each statement shall be accompanied by a monthly progress report and spreadsheets showing hours expended for each task for each month and the total Project to date. Each statement shall include a cover sheet bearing a certification as to the accuracy of the statement signed by the Consultant's Project Manager or other authorized officer. 3.21.2 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 14 17336.00023\9602162.1 188 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. 3.21.3 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. 3.21.4 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission's Representative. 3.21.5 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 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 15 17336.00023\9602162.1 189 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. 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. 16 17336.00023\9602162.1 190 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 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 17 17336.00023\9602162.1 191 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. 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. 18 17336.00023\9602162.1 192 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. 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 19 17336.00023\9602162.1 193 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 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) 20 17336.00023\9602162.1 194 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. 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] 21 17336.00023\9602162.1 195 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR ON-CALL GEOTECHNICAL INVESTIGATION- LABORATORY AND FIELD TESTING OF MATERIALS SERVICES WITH [CONSULTANT] IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY [INSERT CONSULTANT] TRANSPORTATION COMMISSION By: __________________________ By: ____________________________ Scott Matas, Chair Signature ____________________________ Name ____________________________ Title Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP Its: Secretary General Counsel 22 17336.00023\9602162.1 196 EXHIBIT "A" SCOPE OF SERVICES [To be inserted] Exhibit A 17336.00023\9602162.1 197 EXHIBIT "B" Sample Task Order Form RIVERSIDE COUNTY TRANSPORTATION COMMISSION TASK ORDER Task Order No. _______ Contract: [INSERT NAME OF CONTRACT] Consultant: [INSERT NAME OF CONSULTANT] The Consultant is hereby authorized to perform the following work subject to the provisions of the Contract identified above: List any attachments: (Please provide if any.) Dollar Amount of Task Order: Not to exceed $_____,_____.00 Completion Date: _____________, 201__ The undersigned consultant hereby agrees that it will provide all equipment, furnish all materials, except as may be otherwise noted above, and perform all services for the work above specified in accordance with the Contract identified above and will accept as full payment therefore the amount shown above. Riverside County Transportation Commission Consultant Dated: _________________ Dated: _________________ By: ________________________ By:________________________ Project Manager Exhibit B - 1 17336.00023\9602162.1 198 EXHIBIT "C" COMPENSATION AND PAYMENT COMPENSATION AND PAYMENT For the satisfactory performance and completion of the Services under this Agreement, the Commission will pay the Consultant compensation as set forth herein. 1. ELEMENTS OF COMPENSATION. Compensation for the Services will be comprised of the following elements: 1.1 Direct Labor Costs; 1.2 Fixed Fee; and 1.3 Additional Direct Costs. 1.1 DIRECT LABOR COSTS. Direct Labor costs shall be paid in an amount equal to the product of the Direct Salary Costs and the Multiplier which are defined as follows: 1.1.1 DIRECT SALARY COSTS Direct Salary Costs are the base salaries and wages actually paid to the Consultant's personnel directly engaged in performance of the Services under the Agreement. (The range of hourly rates paid to the Consultant's personnel appears in Section 2 below.) 1.1.2 MULTIPLIER The Multiplier to be applied to the Direct Salary Costs to determine the Direct Labor Costs is _____, and is the sum of the following components: 1.1.2.1 Direct Salary Costs ____ 1.1.2.2 Payroll Additives ____ The decimal ratio of Payroll Additives to Direct Salary Costs. Payroll Additives include all employee benefits, allowances for vacation, sick leave, and holidays, and company portion of employee insurance and social and retirement benefits, all federal and state payroll taxes, premiums for insurance which are measured by payroll costs, and other contributions and benefits imposed by applicable laws and regulations. Exhibit C - 1 17336.00023\9602162.1 199 1.1.2.3 Overhead Costs ____ The decimal ratio of allowable Overhead Costs to the Consultant firm's total direct salary costs. Allowable Overhead Costs include general, administrative and overhead costs of maintaining and operating established offices, and consistent with established firm policies, and as defined in the Federal Acquisitions Regulations, Part 31.2. Total Multiplier ____ (sum of 1.1.2.1, 1.1.2.2, and 1.1.2.3) 1.2 FIXED FEE. A Fixed Fee may be set forth in each Task Order to be paid to Consultant for Consultant’s complete and satisfactory performance of the Services set forth in such Task Order. In such case, Commission shall pay the Fixed Fee in monthly installments based upon the percentage of the Services completed at the end of each billing period, as determined in the sole discretion of the Commission’s Representative, or his or her designee. Consultant shall not be entitled to and shall forfeit any portion of the Fixed Fee not earned as provided herein. 1.3 ADDITIONAL DIRECT COSTS. Additional Direct Costs directly identifiable to the performance of the services of this Agreement shall be reimbursed at the rates below, or at actual invoiced cost. Rates for identified Additional Direct Costs are as follows: ITEM REIMBURSEMENT RATE Per Diem _______ Car mileage _______ Rental Car _______ Travel _______ Photocopies (Black & White) _______ Photocopies (Color) _______ Photographs/ other reprographic Services _______ Postage/Shipping _______ Courier Service _______ Other Rentals, supplies, purchases _______ Exhibit C - 2 17336.00023\9602162.1 200 Travel by air and travel in excess of 100 miles from the Consultant's office nearest to the Commission's office must have the Commission's prior written approval to be reimbursed under this Agreement. 2. DIRECT SALARY RATES Direct Salary Rates, which are the range of hourly rates to be used in determining Direct Salary Costs in Section 1.1.1 above, are given below and are subject to the following: 2.1 Direct Salary Rates shall be applicable to both straight time and overtime work, unless payment of a premium for overtime work is required by law, regulation or craft agreement, or is otherwise specified in this Agreement. In such event, the premium portion of Direct Salary Costs will not be subject to the Multiplier defined in Paragraph 1.1.2 above. 2.2 Direct Salary Rates shown herein are in effect for one year following the effective date of the Agreement. Thereafter, they may be adjusted annually to reflect the Consultant's adjustments to individual compensation. The Consultant shall notify the Commission in writing prior to a change in the range of rates included herein, and prior to each subsequent change. POSITION OR CLASSIFICATION RANGE OF HOURLY RATES 2.3 The above rates are for the Consultant only. All rates for subconsultants to the Consultant will be in accordance with the Consultant's cost proposal. Exhibit C - 3 17336.00023\9602162.1 201 3. INVOICING. 3.1 Each month the Consultant shall submit an invoice for Services performed during the preceding month. The original invoice shall be submitted to the Commission's Executive Director with two (2) copies to the Commission's Project Coordinator. 3.2 Charges shall be billed in accordance with the terms and rates included herein, unless otherwise agreed in writing by the Commission's Representative. 3.3 Base Work shall be charged separately, and the charges for each task and Milestone listed in the Scope of Services, shall be listed separately. The charges for each individual assigned by the Consultant under this Agreement shall be listed separately on an attachment to the invoice. 3.4 A charge of $500 or more for any one item of Additional Direct Costs shall be accompanied by substantiating documentation satisfactory to the Commission such as invoices, telephone logs, etc. 3.5 Each copy of each invoice shall be accompanied by a Monthly Progress Report and spreadsheets showing hours expended by task for each month and total project to date. 3.6 Each invoice shall indicate payments to DBE subconsultants or supplies by dollar amount and as a percentage of the total invoice. 3.7 Each invoice shall include a certification signed by the Consultant's Representative or an officer of the firm which reads as follows: I hereby certify that the hours and salary rates charged in this invoice are the actual hours and rates worked and paid to the employees listed. Signed _____________________________ Title _____________________________ Date _____________________________ Invoice No. ________________________ 4. PAYMENT 4.1 The Commission shall pay the Consultant within four to six weeks after receipt by the Commission of an original invoice. Should the Commission contest any portion of an invoice, that portion shall be held for resolution, without interest, but the uncontested balance shall be paid. Exhibit C - 4 17336.00023\9602162.1 202 4.2 The final payment for Services under this Agreement will be made only after the Consultant has executed a Release and Certificate of Final Payment. Exhibit C - 5 17336.00023\9602162.1 203 SUBCONSULTANT RATES Firm Name Position/Title Direct Salary Rates1 Exhibit C - 6 17336.00023\9602162.1 204 EXHIBIT "D" FEDERAL DEPARTMENT OF TRANSPORTATION FHWA AND CALTRANS REQUIREMENTS Notwithstanding anything to the contrary contained in the Agreement, including the other Exhibits attached thereto, the following provisions shall apply if funding for the Services is provided, in whole or in part, from the United States Department of Transportation: 1. DISCRIMINATION The Commission shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the implementation of the Caltrans DBE program or the requirements of 49 CFR Part 26. The Commission shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. Consultant or subcontractor shall not discriminate on the basis of race, color, national origin, of sex in the performance of this contract. Consultant or subcontractor shall carry out applicable requirements of 49 CFR Part 26 and the Caltrans DBE program in the award and administration of DOT-assisted contracts, as further set forth below. Failure by the Consultant or subcontractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the Commission deems appropriate. 2. PROMPT PAYMENT Consultant agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than 10 days from the receipt of each payment the prime contractor receives from the Commission. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the Commission. This clause applies to both DBE and non-DBE subcontractors. 3. RELEASE OF RETAINAGE The Commission shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the Commission of the contract work and pay retainage to prime contractors based on these acceptances. The prime contractor or subcontractor shall return all monies withheld in retention from a lower tiered subcontractor within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the Commission. Federal regulations (49 CFR 26.29) require that any delay or postponement of payment over 30 days may take place only for good cause and with the Commission’s prior written approval. Any violation Exhibit D - 1 17336.00023\9602162.1 205 of this provision shall subject the violating prime contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the prime contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor. This provision applies to both DBE and non-DBE prime contractors and subcontractors. 4. LEGAL REMEDIES In addition to those contract remedies set forth under relevant provisions of California law, either party to this Agreement may, where applicable, seek legal redress for violations of this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the relevant federal or state statutory provisions governing civil rights violations, and to the relevant federal and state provisions governing false claims or “whistleblower” actions, as well as any and all other applicable federal and state provisions of law. The Consultant shall include a provision to this effect in each of its agreements with its subcontractors. 5. DBE PARTICIPATION. Caltrans has developed a revised statewide DBE program pursuant to 49 C.F.R. Part 26. The requirements and procedures, as applicable, of the Caltrans DBE program are hereby incorporated by reference into this Agreement. Even if no DBE participation will be reported, Consultant shall complete Exhibits "G" and "H" of this Agreement in compliance with the Caltrans DBE program. Consultants who obtain DBE participation on this contract will assist Caltrans in meeting its federally mandated statewide overall DBE goal. Consultant shall be responsible for meeting the DBE requirements set forth in the Caltrans DBE program, and any revisions thereto, or as may be promulgated by the Commission as set forth in each Task Order assigned to Consultant. A. This Agreement is subject to Title 49, Part 26 of the Code of Federal Regulations entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs.” Bidders who obtain DBE participation on this contract will assist Caltrans in meeting its federally mandated statewide overall DBE goal. B. DBE and other small businesses (SB), as defined in Title 49 CFR, Part 26 are encouraged to participate in the performance of agreements financed in whole or in part with federal funds. The Consultant, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. The Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT- assisted agreements. Failure by the contractor to carry out these requirements is a material breach of this Exhibit D - 2 17336.00023\9602162.1 206 Agreement, which may result in the termination of this Agreement or such other remedy as the Commission, Caltrans or the Department of Transportation deems appropriate. C. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this section. 6. DBE PARTICIPATION GENERAL INFORMATION. It is Consultant's responsibility to be fully informed regarding the requirements of 49 CFR, Part 26, and the Caltrans DBE program. Particular attention is directed to the following: A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be certified through the California Unified Certification Program (CUCP). B. A certified DBE may participate as a prime contractor, subcontractor, joint venture partner, as a vendor of material or supplies, or as a trucking company. C. A DBE joint-venture partner must be responsible for specific contract items of work or clearly defined portions thereof. Responsibility means actually performing, managing and supervising the work with its own forces. The DBE joint venture partner must share in the capital contribution, control, management, risks and profits of the joint-venture commensurate with its ownership interest. D. A DBE must perform a commercially useful function, pursuant to 49 CFR 26.55 that is, must be responsible for the execution of a distinct element of the work and must carry out its responsibility by actually performing, managing and supervising the work, as more fully described in section 8 below. E. The Consultant shall list only one subcontractor for each portion of work as defined in the Consultant's bid/proposal and all DBE subcontractors should be listed in the Consultant's bid/cost proposal list of subcontractors. F. A Consultant who is a certified DBE is eligible to claim all of the work in the Agreement toward the DBE participation except that portion of the work to be performed by non-DBE subcontractors. 7 . COMMERCIALLY USEFUL FUNCTION. A. A DBE performs a commercially useful function when it is responsible for execution of the work of the Agreement and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the DBE must also be responsible with respect to materials and supplies used on the Agreement, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a commercially useful function, evaluate the amount of work subcontracted, industry practices; Exhibit D - 3 17336.00023\9602162.1 207 whether the amount the firm is to be paid under the Agreement is commensurate with the work it is actually performing, and other relevant factors. B. A DBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, Agreement, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate. C. If a DBE does not perform or exercise responsibility for at least thirty percent of the total cost of its Agreement with its own work force, or the DBE subcontracts a greater portion of the work of the Agreement than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a commercially useful function. 8. DBE CERTIFICATION AND DE-CERTIFICATION STATUS. If a DBE subcontractor is decertified during the life of the Agreement, the decertified subcontractor shall notify the Contractor in writing with the date of de-certification. If a subcontractor becomes a certified DBE during the life of the Agreement, the subcontractor shall notify the Contractor in writing with the date of certification. Any changes should be reported to the Commission's Representative within 30 days. 9. DBE RECORDS. A. The Contractor shall maintain records of materials purchased and/or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime Contractors shall also show the date of work performed by their own forces along with the corresponding dollar value of the work. B. Upon completion of the Agreement, a summary of these records shall be prepared and submitted on the most current version of the form entitled, “Final Report-Utilization of Disadvantaged Business Enterprises (DBE),” CEM- 2402F (Exhibit 17-F in Chapter 17 of the LAPM), certified correct by the Contractor or the Contractor’s authorized representative and shall be furnished to the Commission's Representative with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty-five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to the Contractor when a satisfactory “Final Report Utilization of Disadvantaged Business Enterprises (DBE)” is submitted to the Commission's Representative. C. Prior to the fifteenth of each month, the Contractor shall submit documentation to the Commission's Representative showing the amount paid to DBE trucking companies. The Exhibit D - 4 17336.00023\9602162.1 208 Contractor shall also obtain and submit documentation to the Commission's Representative showing the amount paid by DBE trucking companies to all firms, including owner-operators, for the leasing of trucks. If the DBE leases trucks from a non-DBE, the Contractor may count only the fee or commission the DBE receives as a result of the lease arrangement. D. The Contractor shall also submit to the Commission's Representative documentation showing the truck number, name of owner, California Highway Patrol CA number, and if applicable, the DBE certification number of the truck owner for all trucks used during that month. This documentation shall be submitted on the Caltrans ”Monthly DBE Trucking Verification,” CEM-2404(F) form provided to the Contractor by the Commission's Representative. 10. REPORTING MATERIAL OR SUPPLIES PURCHASED FROM DBEs. When Reporting DBE Participation, Material or Supplies purchased from DBEs may count as follows: A. If the materials or supplies are obtained from a DBE manufacturer, 100 % of the cost of the materials or supplies will count toward the DBE participation. A DBE manufacturer is a firm that operates or maintains a factory or establishment that produces on the premises, the materials, supplies, articles, or equipment required under the Agreement and of the general character described by the specifications. B. If the materials or supplies purchased from a DBE regular dealer, count 60 % of the cost of the materials or supplies toward DBE goals. A DBE regular dealer is a firm that owns, operates or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the Agreement, are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. To be a DBE regular dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question. A person may be a DBE regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone or asphalt without owning, operating or maintaining a place of business provided in this section. C. If the person both owns and operates distribution equipment for the products, any supplementing of regular dealers’ own distribution equipment, shall be by a long-term lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers, brokers, manufacturers’ representatives, or other persons who arrange or expedite transactions are not DBE regular dealers within the meaning of this section. D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor a regular dealer, will be limited to the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, or fees or transportation charges for the Exhibit D - 5 17336.00023\9602162.1 209 delivery of materials or supplies required on the job site, provided the fees are reasonable and not excessive as compared with fees charged for similar services. 11. REPORTING PARTICIPATION OF DBE TRUCKING COMPANIES. When Reporting DBE Participation, Participation of DBE trucking companies may count as follows: A. The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible. B. The DBE must itself own and operate at least one fully licensed, insure, and operational truck used on the Agreement. C. The DBE receives credit for the total value of the transportation services it provides on the Agreement using trucks it owns, insures, and operates using drivers it employs. D. The DBE may lease trucks from another DBE firm including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the Agreement. E. The DBE may also lease trucks from a non-DBE firm, including an owner-operator. The DBE who leases trucks from a non-DBE is entitled to credit only for the fee or commission it receives as a result of the lease arrangement. The DBE does not receive credit for the total value of the transportation services provided by the lessee, since these services are not provided by the DBE. F. For the purposes of this section, a lease must indicate that the DBE has exclusive use and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, as long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE. 12. DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY EXCLUSION. In accordance with 49 CFR Part 29, which by this reference is incorporated herein, Consultant’s subconsultants completed and submitted the Certificate of Sub Consultant Regarding Debarment, Suspension and Other Ineligibility and Voluntary Exclusion as part of the Consultant’s proposal. If it is later determined that Consultant’s subconsultants knowingly rendered an erroneous Certificate, the Commission may, among other remedies, terminate this Agreement. Exhibit D - 6 17336.00023\9602162.1 210 EXHIBIT "E" FEDERAL TRANSIT ADMINISTRATION REQUIREMENTS Notwithstanding anything to the contrary contained in the Agreement, including the other Exhibits attached thereto, the following provisions shall apply if funding for the Services is provided, in whole or in part, from the Federal Transit Administration (“FTA”). In addition, the exhibits attached to this Agreement, may be replaced and substituted with similar forms required by FTA. Consultant agrees to complete any such substitute forms. 1. NO FEDERAL GOVERNMENT OBLIGATIONS TO THIRD-PARTIES BY USE OF A DISCLAIMER (Master Agreement 1 §2.f) (1) The Commission and Consultant acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government (“Government”), the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Commission, Consultant, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. (2) The Consultant agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subconsultant who will be subject to its provisions. 2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS (Master Agreement §3.f) (1) The Consultant acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. §§ 3801 et seq. and U.S. DOT regulations, “Program Fraud Civil Remedies,” 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Consultant certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Consultant further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, 1 UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL TRANSIT ADMINISTRATION MASTER AGREEMENT For Federal Transit Administration Agreements authorized by 49 U.S.C. chapter 53, Title 23, U.S.C. (Highways), Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, the National Capital Transportation Act of 1969, as amended, the Transportation Equity Act for the 21st Century, as amended, 23 U.S.C. § 101 note, or other Federal enabling legislation; FTA MA(14); October 1, 2007; [http://www.fta.dot.gov/documents/14-Master.pdf]. Exhibit E - 1 17336.00023\9602162.1 211 the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Consultant to the extent the Federal Government deems appropriate. (2) The Consultant also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, certification, assurance, or representation to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. chapter 53 or any other Federal law, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5323(l) on the Consultant, to the extent the Federal Government deems appropriate. (3) The Consultant agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subconsultant who will be subject to the provisions. 3. ACCESS TO RECORDS (Master Agreement §§ 8.c, d, 15.t) (1) The Consultant agrees to provide the Commission, the FTA Administrator, the U.S. Secretary of Transportation, the Comptroller General of the United States or any of their authorized representatives access to all Project work, materials, payrolls, and other data of the Consultant which are directly pertinent to this contract as required by 49 U.S.C. § 5325(g). (2) The Consultant agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. (3) The Consultant agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of transmission of the final expenditure report, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Consultant agrees to maintain same until the Commission, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). (4) The Consultant agrees to require its subcontractors and third party contractors to provide the same. 4. FEDERAL CHANGES (Master Agreement §2.c(1)) Consultant shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Grant Exhibit E - 2 17336.00023\9602162.1 212 Agreement or Cooperative Agreement between the Commission and the Federal Government (“Grant Agreement or Cooperative Agreement”), as they may be amended or promulgated from time to time during the term of this contract. Consultant’s failure to so comply shall constitute a material breach of this contract. 5. CIVIL RIGHTS REQUIREMENTS (Master Agreement §12) (1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d et seq., U.S. DOT regulations, “Nondiscrimination in Federally-Assisted Programs of the Department of Transportation – Effectuation of Title VI of the Civil Rights Act,” 49 C.F.R. Part 21, FTA Circular 4702.1A, “Title VI and Title VI – Dependent Guidelines for Federal Transit Administration Recipients,” May 13, 2007, Federal transit law at 49 U.S.C. § 5332, the Consultant agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Consultant agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: (a) Race, Color, Creed, National Origin, Sex – The Consultant agrees to comply with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and equal employment opportunity provisions of 49 U.S.C. § 5332, and all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” 41 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, “Equal Employment Opportunity,” as amended by Executive Order No. 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Consultant agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Consultant agrees to comply with any implementing requirements FTA may issue. (3) Age - In accordance with the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 621 through 634 and Federal transit law at 49 U.S.C. § 5332, the Consultant agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Consultant agrees to comply with any implementing requirements FTA may issue. Exhibit E - 3 17336.00023\9602162.1 213 (4) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Consultant agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,” 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Consultant agrees to comply with any implementing requirements FTA may issue. (5) DBE Program Compliance - The Commission has established a DBE Program pursuant to 49 C.F.R. Part 26, which applies to FTA funded agreements. The requirements and procedures of the Commission’s DBE Program are hereby incorporated by reference into this Agreement. Consultant shall complete Exhibits "G” and "H" of this Agreement, or similar forms to be provided by the Commission, in compliance with the Commission's DBE Program for FTA funded agreements. Failure by Consultant or its subcontractor(s) to carry out the Commission’s DBE Program procedures and requirements, or the applicable requirements of 49 C.F.R. Part 26, section 1101(b) of SAFETEA-LU, 23 U.S.C. § 101 note, and U.S. DOT regulations, “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs,” 49 C.F.R. Part 26, shall be considered a material breach of this Agreement. Such a material breach may be grounds for termination of this Agreement or such other appropriate administrative remedy as the Commission deems appropriate. The Consultant shall ensure that a provision mandating compliance with the Commission’s DBE Program for FTA funded agreements is included in any and all sub-agreements entered into which arise out of or are related to this Agreement. Consultant shall also promptly provide the Commission with all necessary information related to the DBE status of its subcontractors. Should the DBE status of any of its subcontractors change in any way, Consultant shall promptly inform the Commission of this change. (6) The Consultant also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. 6. TERMINATION PROVISIONS (Master Agreement §11) The termination provisions found at Section 3.14 of this Agreement are consistent with the termination provisions suggested by FTA for the protection of the Federal Government. The termination provisions found at Section 3.14 of this Agreement control termination under this Agreement. 7. DEBARMENT AND SUSPENSION (Master Agreement §3.b) Exhibit E - 4 17336.00023\9602162.1 214 Instructions for Certification 1. By signing and submitting a Proposal, the Consultant is providing the signed certification set out below. 2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the Consultant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, Commission may pursue available remedies, including suspension and/or debarment. 3. The Consultant shall provide immediate written notice to Commission if at any time the Consultant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. 4. The terms “covered transaction,” “debarred,” “suspended,” “ineligible,” “lower tier covered transaction,” “participant,” “persons,” “lower tier covered transaction,” “principal,” “proposal,” and “voluntarily excluded,” as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549 [49 CFR Part 29]. You may contact Commission for assistance in obtaining a copy of those regulations. 5. The Consultant agrees by submitting a Proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized in writing by Commission. 6. The Consultant further agrees by submitting a Proposal that it will include the clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction”, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement List issued by U.S. General Service Administration. 8. Nothing contained in the foregoing shall be construed to require establishment of system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. Exhibit E - 5 17336.00023\9602162.1 215 9. Except for transactions authorized under Paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to all remedies available to the Federal Government, Commission may pursue available remedies including suspension and/or debarment. 10. The Consultant agrees to comply, and assures the compliance of each subconsultant, lessee, or third party contractor, with Executive Orders Nos. 12549 and 12689, “Debarment and Suspension,” 31 U.S.C. § 6101 note, and U.S. DOT regulations, “Governmentwide Debarment and Suspension (Nonprocurement),” 49 C.F.R. Part 29. 11. The Consultant agrees to, and assures that its subconsultants, lessees and third party contractors have reviewed the “Excluded Parties Listing System” at http://elps.gov/ before entering into any third sub agreement, lease or third party contract. “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion” (1) The Consultant certifies, by submission of this bid or proposal, that neither it nor its “principals” [as defined at 49 C.F.R. § 29.105(p)] is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. (2) When the Consultant is unable to certify to the statements in this certification, it shall attach an explanation to this proposal. 8. PROVISIONS FOR RESOLUTION OF DISPUTES, BREACHES, OR OTHER LITIGATION (Master Agreement §53) Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the Commission Executive Director, or his or her designee. This decision shall be final and conclusive unless within ten (10) days from the date of receipt of its copy, the Consultant mails or otherwise furnishes a written appeal to the Commission’s Executive Director, or his or her designee. In connection with any such appeal, the Consultant shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the Commission’s Executive Director, or his or her designee, shall be binding upon the Consultant and the Consultant shall abide be the decision. Performance During Dispute - Unless otherwise directed by Commission, Consultant shall continue performance under this Contract while matters in dispute are being resolved. Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others Exhibit E - 6 17336.00023\9602162.1 216 for whose acts he is legally liable, a claim for damages therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the Commission and the Consultant arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which the Commission is located. Rights and Remedies - The duties and obligations imposed by this Agreement and the rights and remedies available hereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the Commission, or Consultant shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. FTA Notification - Consultant shall notify FTA in writing of any current or prospective major dispute, breach, default, or litigation that may affect the Federal Government’s interests in the Project. If the Consultant wishes to name the Federal Government as a party to litigation, the Consultant shall inform FTA in writing before doing so. 9. LOBBYING (Master Agreement §3.d) Lobbying Restrictions. To the extent applicable, Consultant agrees to: (1) Comply, and assure the compliance of each subcontractor at any tier, with U.S. DOT regulations, “New Restrictions on Lobbying,” 49 C.F.R. Part 20, modified as necessary by 31 U.S.C. § 1352. (2) Comply with Federal statutory provisions, to the extent applicable, prohibiting the use of Federal assistance funds for activities designed to influence Congress or a State legislature on legislation or appropriations, except through proper, official channels. 10. CLEAN AIR (Master Agreement §25.b) (1) The Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 through 7671q. The Consultant agrees to report each violation to the Commission and understands and agrees that the Commission will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. Exhibit E - 7 17336.00023\9602162.1 217 (2) The Consultant also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 11. CLEAN WATER (Master Agreement §25.c) (1) The Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 through 1377. The Consultant agrees to report each violation to the Commission and understands and agrees that the Commission will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Consultant also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 12. ENERGY CONSERVATION (Master Agreement §26) Energy Conservation. To the extent applicable, Consultant agrees to comply with the mandatory energy efficiency standards and policies within the applicable State energy conservation plans issued in compliance with the Energy Policy and Conservation Act, 42 U.S.C. §§ 6321 et seq. To the extent applicable, Consultant agrees to perform an energy assessment for any building constructed, reconstructed, or modified with FTA assistance, as provided in FTA regulations, “Requirements for Energy Assessments,” 49 C.F.R. Part 622, Subpart C. 13. CONFORMANCE WITH NATIONAL ITS ARCHITECTURE (Master Agreement §15.m) National Intelligent Transportation Systems Architecture and Standards. To the extent applicable, Consultant agrees to conform, to the extent applicable, to the National Intelligent Transportation Systems (ITS) Architecture and Standards as required by SAFETEA-LU § 5307(c), 23 U.S.C. § 512 note, and with FTA Notice, “FTA National ITS Architecture Policy on Transit Projects” 66 Fed. Reg. 1455 et seq., January 8, 2001, and other subsequent Federal directives that may be issued. 14. ADDITIONAL REQUIREMENTS (Master Agreement § 39, 40, 41, 42, 43, 48) To the extent applicable, Consultant agrees to comply with the Federal programs specified below and, with regard to such programs, Consultant agrees not compromise the Commission’s compliance with Federal requirements as pertains to the Project. Exhibit E - 8 17336.00023\9602162.1 218 The Programs are as follows: (1) Urbanized Area Formula Program authorized under 49. U.S.C. § 5307. (2) Elderly Individuals and Individuals with Disabilities Formula Program authorized under 49 U.S.C. § 5310 as amended by SAFETEA-LU and subsection 3012(b) of SAFETEA-LU, 49 U.S.C. § 5310 note, respectively. (3) New Freedom Program authorized under 49 U.S.C. § 5317. (4) Nonurbanized Area Formula Program authorized under 49 U.S.C. § 5311(b). (5) Clean Fuels Grant Program authorized under 49 U.S.C. § 5308. (6) Job Access and Reverse Commute Formula Grant Program authorized under 49 U.S.C. § 5316. 15. RELEASE OF RETAINAGE (49 CFR 26.29) The Commission shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the Commission of the contract work and pay retainage to prime contractors based on these acceptances. The prime contractor or subcontractor shall return all monies withheld in retention from a subcontractor within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the Commission. Federal regulations (49 CFR 26.29) require that any delay or postponement of payment over 30 days may take place only for good cause and with the Commission’s prior written approval. Any violation of this provision shall subject the violating prime contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the prime contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor. This provision applies to both DBE and non-DBE prime contractors and subcontractors. 16. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS The preceding provisions include, in part, certain Standard Terms and Conditions required by the Federal Transit Authority, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by the Federal Transit Authority, as set forth in FTA Circular 4220.1F, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other Exhibit E - 9 17336.00023\9602162.1 219 provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any Commission requests which would cause the Commission to be in violation of the FTA terms and conditions. Exhibit E - 10 17336.00023\9602162.1 220 ADDITIONAL EXHIBITS The following exhibits additional exhibits shall be included in the final agreement (the forms are included as part of the RFP) EXHIBIT "F"- CERTIFICATE OF CONSULTANT EXHIBIT “G” – DISADVATAGED BUSINESS ENTERPRISE (DBE) FORMS/COMMITMENTS EXHIBIT "H"- DISCLOSURE OF LOBBYING ACTIVITIES Exhibit 17336.00023\9602162.1 221 AGENDA ITEM 15 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 22, 2016 TO: Western Riverside County Programs and Projects Committee FROM: Hector Casillas, Senior Management Analyst THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Agreement for Security Guard Services at Commission-Owned Commuter Rail Stations and Control Center STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement No. 16-24-079-00 to Allied Universal Security Services, formerly known as Universal Protection Services, LP (Universal), for the provision of security services at the Commission-owned commuter rail stations and control center for a three-year term, and two two-year options to extend the agreement, in an amount of $18.3 million, plus a contingency amount of $1.2 million, for a total amount not to exceed $19.5 million; 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 approve contingency work up to the total not to exceed amount as required for these services; and 4) Forward to the Commission for final action. BACKGROUND INFORMATION: On September 14, 2011, the Commission awarded a five-year contract to Universal for the Commission’s five commuter rail stations for an amount not to exceed $5,904,100. At its May 2015 meeting, the Commission approved an additional amount of $1,166,795 and a total amount not to exceed $7,070,895, as the Commission increased the number of facilities from five to nine commuter rail stations, including a control center located adjacent to the Riverside- Downtown Station. The proposed security services are provided 24 hours a day, seven days a week in order to protect patrons and the Commission’s facilities. Security personnel are required to serve a number of roles in the field, as they are the only representatives of both the Commission and Metrolink at the stations. The security officers are expected to patrol, both on foot and in marked, lighted patrol vehicles. Their presence deters motor vehicle theft and burglaries, as well as other criminal activity Agenda Item 15 222 including vandalism and graffiti in all areas of the stations. Security officers discourage unsafe activities such as skateboarding and report safety hazards to the Commission or crimes to law enforcement. They are expected to treat all transit users in a professional manner and be courteous and helpful at all times. On a daily basis, the security officers assist riders with ticketing and directions to the appropriate trains, platforms, and buses. Security services at the stations and control center are important in order to provide a safe environment to patrons. All security officers are equipped with a smartphone connected to an electronic tour of duty monitoring system to ensure all areas of each facility are being monitored regularly. In addition, security officers monitor the closed circuit televisions (CCTVs) at the control center, and report any irregularities to the security officers on duty and/or law enforcement, if necessary. 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 security services as set forth under the terms of the Request for Proposals (RFP) No. 16-24-079-00. RFP No. 16-24-079-00 for security guard services was released by staff on April 7, 2016. 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 19 firms, five of which are located in Riverside County. Through the PlanetBids site, 31 firms downloaded the RFP; 5 of these firms are located in Riverside County. A pre-bid conference was held on April 21 and attended by 13 firms; 6 firms are local to Riverside County. Staff responded to all questions submitted by potential proposers prior to the April 28 clarification deadline date. Fifteen firms – ABC Security Services (Oakland); Absolute Security International Inc. (Covina); AlliedBarton Security Services (Riverside); Alltech Industries Inc. (Monterey Park); America Guard Services, Inc. (Carson); California Panther Security (Los Angeles); CEED Security (Riverside); Cypress Private Security (Santa Fe Springs); G4S Secure Solutions (Riverside); New Era Security (Brentwood); PacWest Security Services (Costa Mesa); Platinum Security (Los Angeles); Securitas Security Services USA, Inc. (Ontario); U.S. Security Associates (Corona); and Universal (Riverside) – submitted responsive and responsible statements of proposals prior to the 2:00 p.m. submittal deadline on May 12. Utilizing the evaluation criteria set forth in the RFP, 15 firms were evaluated, scored, and shortlisted by an evaluation committee comprised of Commission and Bechtel staff. Scoring was based entirely upon the evaluation criteria set forth in the RFP. Based on the evaluation committee’s assessment of the written proposals and pursuant to the terms of the RFP, the evaluation committee shortlisted and invited five firms to the interview phase of the evaluation and selection process. Interviews of the short listed firms – Agenda Item 15 223 AlliedBarton Security Services; Cypress Private Security; G4S Secure Solutions; Securitas Security Services USA, Inc.; and Universal – were conducted on June 7. After conclusion of the procurement evaluations, the Commission received notification of a merger between AlliedBarton Security Services and Universal. The merger formed one firm effective August known as Allied Universal Security Services. As a result of the evaluation committee’s assessment of the written proposals and interviews, the evaluation committee recommends contract award to Universal to perform security guard services for a three-year term, with two two-year options to extend the agreement, in the amount of $18.3 million, plus a contingency amount of $1.2 million, for a total amount not to exceed $19.5 million, as this firm earned the highest total evaluation score and was the low cost bidder. The increase in total cost is due to an increase in the state minimum wage, the opening of the new stations, leasing security vehicles, and the need for an additional security supervisor and CCTV operators. Currently, the security vehicles are golf carts; the Commission owns six golf carts and leases five from Universal. As the Commission-owned golf carts age and are no longer operable, staff will replace them with leased golf carts. A cost analysis, taking into account maintenance costs, determined a benefit to the Commission in leasing golf carts over the seven-year term. 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. Staff oversight of the contract will work to maximize the effectiveness of the consultants and minimize costs to the Commission. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18+ Amount: $ 1,750,000 $17,750,000 Source of Funds: Local Transportation Fund funds, Perris Valley Line Congestion Mitigation Air Quality Grant Funds Budget Adjustment: No N/A GL/Project Accounting No.: 2440XX 81006 00000 0000 103 24 81006 Fiscal Procedures Approved: Date: 08/11/2016 Attachment: Standard Form On-Call Professional Services Agreement Agenda Item 15 224 Agreement No. 16-24-079-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR SECURITY GUARD SERVICES WITH UNIVERSAL PROTECTION SERVICE, LP 1. PARTIES AND DATE. This Agreement is made and entered into this day of , 2016, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and UNIVERSAL PROTECTION SERVICE, LP, a California limited partnership ("Consultant"). 2. RECITALS. 2.1 Consultant desires to perform and assume responsibility for the provision of certain professional consulting services required by Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is a professional consultant, experienced in providing security guard 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 at the Commission owned commuter rail stations ("Project") as set forth herein. 3. TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide professional consulting services and advice on various issues affecting the decisions of Commission regarding the Project and on other programs and matters affecting Commission, hereinafter referred to as "Services". The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules and regulations. 3.2 Term. The term of this Agreement shall be from the date first specified above to September 30, 2019, unless earlier terminated as provided herein. 17336.00000\8752982.2 225 The Commission, at its sole discretion, may extend this Agreement for two (2) additional two-year terms. 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 representative shall have the power to act on behalf of Commission for all purposes 2 17336.00000\8752982.2 226 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\8752982.2 227 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\8752982.2 228 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\8752982.2 229 (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\8752982.2 230 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\8752982.2 231 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 Fees and Payment. 3.14.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto. The total compensation shall not exceed [___INSERT WRITTEN DOLLAR AMOUNT___] ($[___INSERT NUMERICAL DOLLAR AMOUNT___]) without written approval of Commission's Executive Director (“Total Compensation”). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.14.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Commission. 3.14.4 Extra Work. At any time during the term of this Agreement, Commission may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by Commission to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, 8 17336.00000\8752982.2 232 nor be compensated for, Extra Work without written authorization from Commission's Executive Director. 3.15 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of Commission during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Upon termination, Consultant shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.16.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Consultant to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.16.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Commission may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.17 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: 9 17336.00000\8752982.2 233 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, 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. 10 17336.00000\8752982.2 234 The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 3.18.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.18.4 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 11 17336.00000\8752982.2 235 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, 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. 12 17336.00000\8752982.2 236 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 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 13 17336.00000\8752982.2 237 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 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 14 17336.00000\8752982.2 238 trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant. 3.32 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 3.33 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day 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 15 17336.00000\8752982.2 239 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. 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\8752982.2 240 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR SECURITY GUARD 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 * A corporation requires the signatures of two corporate officers. One signature shall be that of the chairman of board, the president or any vice president and the second signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or any assistant treasurer of such corporation. If the above persons are not the intended signators, evidence of signature authority shall be provided to the Commission. 17 17336.00000\8752982.2 241 EXHIBIT "A" - SCOPE OF SERVICES [TO BE INSERTED] EXHIBIT "B" - SCHEDULE OF SERVICES [TO BE INSERTED] EXHIBIT "C" - COMPENSATION [TO BE INSERTED] EXHIBIT -1 17336.00000\8752982.2 242 AGENDA ITEM 16 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: August 22, 2016 TO: Western Riverside County Programs and Projects Committee FROM: Jillian Guizado, Senior Management Analyst Brian Cunanan, Commuter and Motorist Assistance Manager THROUGH: Robert Yates, Multimodal Services Director SUBJECT: Agreements for Freeway Service Patrol Tow Truck Services STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement No. 16-45-082-00 to Pepe’s Towing for Freeway Service Patrol (FSP) tow truck services on State Route 91 Beat No. 4 for a three-year term, and one two-year option to extend the agreement, in an amount not to exceed $1,330,000; 2) Award Agreement No. 16-45-083-00 to Pepe’s Towing for FSP tow truck services on SR-60 Beat No. 7 for a three-year term, and one two-year option to extend the agreement, in an amount not to exceed $1,330,000; 3) Award Agreement No. 16-45-103-00 to Steve’s Towing for FSP tow truck services on the Riverside 91 Express Lanes Beat No. 91-T for a three-year term, and one two-year option to extend the agreement, in an amount not to exceed $1,205,000; 4) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, including option years, on behalf of the Commission; and 5) Forward to the Commission for final action. BACKGROUND INFORMATION: In 1986, the Commission established itself as the Riverside County Service Authority for Freeway Emergencies (RC SAFE) after the enactment of SB 1199 in 1985. The purpose of the formation of SAFEs in California was to provide call box services and, with excess funds, provide additional motorist aid services. Funding for RC SAFE is derived from a one dollar per vehicle registration fee on vehicles registered in Riverside County. Initially, these funds were used only for the call box program. As additional motorist aid services were developed, SAFE funds were also used to provide FSP and the Inland Empire 511 traveler information services as part of a comprehensive motorist aid system in Riverside County. In 1990, Proposition C was passed to fund transportation improvements and to help reduce traffic congestion in California. From this, the FSP program was created by Caltrans, which developed the corresponding local funding allocation plan to distribute funds to participating jurisdictions. In addition to funding received from Caltrans, agencies are required to contribute Agenda Item 16 243 a 25 percent local match. For the Commission, SAFE revenues are used to meet this match requirement. The Commission, acting in its capacity as the SAFE, is the principal agency in Riverside County, in partnership with Caltrans and the California Highway Patrol (CHP), managing the FSP program. The purpose of the FSP program is to provide a continuously roving tow services patrol along designated freeway segments (referred to as beats) to relieve freeway congestion and facilitate the rapid removal of disabled vehicles and those involved in minor accidents on local freeways. Contracts to provide FSP tow service are competitively bid as needed for each beat. Currently, the Commission contracts with four tow truck operators to provide service on a total of nine beats Monday through Friday during the peak commute hours, 5:30 a.m. to 8:30 a.m. and 2:30 p.m. (12:30 p.m. on Fridays) to 6:30 p.m. In FY 2015/16, FSP performed over 42,000 assists, including extra service provided in construction areas. In early 2017, the Commission’s Riverside 91 Express Lanes are expected to open, and dedicated FSP tow service will be provided. This will be a new beat and is expected to have a minimum level of service as follows: Ramp-Up Toll FSP (first three months of toll operations) Monday through Friday 5:00 a.m. to 1:00 p.m. operating 1 truck 1:00 p.m. to 7:00 p.m. operating 2 trucks 7:00 p.m. to 9:00 p.m. operating 1 truck Saturday and Sunday 7:00 a.m. to 11:00 a.m. operating 1 truck (no a.m. service 3rd Sunday of every month for first three months due to maintenance) 1:00 p.m. to 7:00 p.m. operating 1 truck Standard Toll FSP Monday through Friday 5:00 a.m. to 10:00 a.m. operating 1 truck 1:00 p.m. to 8:00 p.m. operating 1 truck Saturday and Sunday 1:00 p.m. to 7:00 p.m. operating 1 truck DISCUSSION: Staff utilized a competitive procurement to award tow service contracts to qualified firms for Beat Nos. 4, 7, and 91-T. Beat No. 4 operates on SR-91 from Magnolia Avenue in the city of Riverside (Riverside) to the 60/91/215 interchange in Riverside. Beat No. 7 operates on SR-60 from Milliken Street in Eastvale to Main Street in Riverside. These two beats each require the use of two tow trucks during normal service hours. Agenda Item 16 244 Beat No. 91-T, the Commission’s newest beat, operates within the entire Riverside County portion of the Riverside 91 Express Lanes, from the Orange County line to McKinley Street and through the Interstate 15 flyover connection to Ontario Avenue in the city of Corona (Corona). This beat requires the use of one tow truck during regular service hours and up to two tow trucks during ramp-up service hours. Procurement Process Staff determined the weighted factor method of source selection to be the most appropriate for these procurements, as it allows the Commission to identify the most advantageous proposal with price and other factors considered. Non-price elements of the evaluation criteria included experience, the relative qualifications of the firms, proposed work plan, and the proposer’s ability to respond to the requirements set forth under the terms of the Request for Proposals (RFP) Nos. 16-45-082-00 for Beats No. 4 and 7, and 16-45-103-00 for Beat No. 91-T. Prior to RFP Nos. 16-45-082-00 and 16-45-103-00 for FSP services being released by staff on June 16, 2016, the Commission’s FSP consultant, Bernard Arroyo, made contact with 17 CHP rotation tow companies in Corona and Riverside to talk to and educate the owners about the FSP program in an effort to garner interest. 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 16 firms, six of which are located in Riverside County. Additionally, the Commission had unique flyers made and sent them out in bright orange envelopes to 122 firms that have previously expressed interest in tow services and/or are on the current CHP rotational tow lists. Of the 122 firms, 35 are located in Riverside County. Through the PlanetBids site, 10 firms downloaded the RFP No. 16-45-082-00, three of which are located in Riverside County; 12 firms downloaded the RFP No. 16-45-103-00, three of which are located in Riverside County. A pre-bid conference was held on June 30 and attended by 10 firms. Staff responded to all questions submitted by potential proposers prior to the clarification deadline date of July 7. Prior to the proposal submittal deadline on July 21 at 2:00 p.m., two responsive and responsible firms – Pepe’s Towing (Colton) and Bill & Wag’s, Inc. (Ontario) – submitted proposals in response to the RFP for services on Beat No. 4; three responsive and responsible firms – Bill & Wag’s, Inc. (Ontario), Bob’s Towing (Baldwin Park), and Pepe’s Towing (Colton) – submitted proposals in response to the RFP for services on Beat No. 7; and two responsive and responsible firms – Bill & Wag’s, Inc. (Ontario) and Steve’s Towing (Riverside) – submitted proposals in response to the RFP for services on Beat No. 91-T. An evaluation committee comprised of representatives from the CHP Inland Division, San Bernardino Associated Governments, and Commission staff evaluated each proposal in accordance with the evaluation criteria set forth in the RFPs. On August 4, the evaluation committee interviewed two of the proposing firms – Pepe’s Towing and Steve’s Towing. It was Agenda Item 16 245 determined that site visits were not necessary as the shortlisted firms currently provide FSP services for the Commission. After the interviews with the above-referenced firms were conducted, the evaluation committee invited Pepe’s to a best and final offer phase to achieve the most competitive pricing. Accordingly, the evaluation committee provided final scoring based on a comprehensive evaluation of each firm’s written proposal and interview. Beat No. 4 Proposals submitted in response to Beat No. 4 were scored by the evaluation committee based upon the criteria set forth in the RFP. The two firms submitted hourly rates for tow services for the initial three-year term that ranged from a low of $66.50 per hour to a high of $74.73 per hour. The all-inclusive hourly service rate for this beat includes all direct costs (e.g., fuel, labor, equipment), indirect costs (e.g., fringe benefits, overhead), and profit to provide the subject services. The overall rankings, inclusive of pricing, listed from highest to lowest total evaluation score for Beat No. 4 are as follows: Firm Hourly Rate Overall Ranking Pepe’s Towing $66.50 1 Bill & Wag’s, Inc. $74.73 2 As a result of the completion of the evaluation process, the evaluation committee recommends contract award to Pepe’s Towing for Beat No. 4 for a three-year term at a fixed hourly rate of $66.50, with one two-year option to extend the agreement at a fixed hourly rate of $66.50, as this firm earned the highest total evaluation score. Beat No. 7 Proposals submitted in response to Beat No. 7 were scored by the evaluation committee based upon the criteria set forth in the RFP. The three firms submitted hourly rates for tow services for the initial three-year term that ranged from a low of $60.00 per hour to a high of $74.73 per hour. The all-inclusive hourly service rate for this beat includes all direct costs (e.g., fuel, labor, equipment), indirect costs (e.g., fringe benefits, overhead), and profit to provide the subject services. The overall rankings, inclusive of pricing, listed from highest to lowest total evaluation score for Beat No. 7 are as follows: Agenda Item 16 246 Firm Hourly Rate Overall Ranking Pepe’s Towing $66.50 1 Bill & Wag’s, Inc. $74.73 2 Bob’s Towing $60.00 3 As a result of the completion of the evaluation process, the evaluation committee recommends contract award to Pepe’s Towing for Beat No. 7 for a three-year term at a fixed hourly rate of $66.50, with one two-year option to extend the agreement at a fixed hourly rate of $66.50, as this firm earned the highest total evaluation score. It should be noted that FSP procurements are not low-bid but rather best value in which four scoring categories carry equal weight, including price. Factors such as distance to the beat, proposed key personnel, and the firm’s work plan affected the overall score of the firm with the lowest hourly rate. Beat No. 91-T Proposals submitted in response to Beat No. 91-T were scored by the evaluation committee based upon the criteria set forth in the RFP. The two firms submitted hourly rates for tow services for the initial three-year term that ranged from a low of $56.25 per hour to a high of $74.73 per hour. The all-inclusive hourly service rate for this beat includes all direct costs (e.g., fuel, labor, equipment), indirect costs (e.g., fringe benefits, overhead), and profit to provide the subject services. The overall rankings, inclusive of pricing, listed from highest to lowest total evaluation score for Beat No. 91-T are as follows: Firm Hourly Rate Overall Ranking Steve’s Towing $56.25 1 Bill & Wag’s, Inc. $74.73 2 As a result of the completion of the evaluation process, the evaluation committee recommends contract award to Steve’s Towing for Beat No. 91-T for a three-year term at a fixed hourly rate of $56.25, with one two-year option to extend the agreement at a fixed hourly rate of $56.25, as this firm earned the highest total evaluation score. CONCLUSION: Based on the evaluation process discussed, staff recommends the award of Agreement Nos. 16-45-082-00 and 16-45-083-00 to Pepe’s Towing in the amounts not to exceed $1,330,000 each for FSP tow truck services on Beat Nos. 4 and 7. Staff also recommends the award of Agreement No. 16-45-103-00 to Steve’s Towing in the amount not to exceed $1,205,000 for FSP tow truck services on Beat No. 91-T. The proposed all-inclusive hourly rates are considered fair and reasonable based upon adequate price competition under the RFP process. The Agenda Item 16 247 Commission’s standard form FSP services agreement will be entered into for each beat subject to any changes pursuant to legal counsel review. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18+ Amount: $ 370,000 $ 3,495,000 Source of Funds: State of California, SAFE Contribution from Department of Motor Vehicle Fees, Toll Revenues Budget Adjustment: No N/A GL/Project Accounting No.: 002173 81014 00000 0000 201 45 81002 009199 81014 00000 0000 591 31 81002 Fiscal Procedures Approved: Date: 08/11/2016 Attachment: Draft Agreement No. 16-45-082-00 Agenda Item 16 248 MODEL CONTRACT FORM Agreement No. 16-45-082-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION, ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES, FOR FREEWAY SERVICE PATROL FOR BEAT # X WITHIN RIVERSIDE COUNTY WITH [___CONTRACTOR___] 1. PARTIES AND DATE. 1.1 This Agreement is made and entered into as of _____day of _________, 2016, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“COMMISSION”) acting as the RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES (“SAFE”) and [NAME OF FIRM], a [LEGAL STATUS OF CONTRACTOR e.g., CORPORATION] (referred to herein as “CONTRACTOR”). SAFE and CONTRACTOR are sometimes individually referred to herein as “Party” and collectively as “Parties”. 1.2 The California Highway Patrol herein referred to as “CHP” and California Department of Transportation, herein referred to as “Caltrans” are hereby expressly designated as third-party beneficiaries of CONTRACTOR’s performance under this Agreement. 2. RECITALS. 2.1 WHEREAS, COMMISSION is a California County Transportation Commission existing under the authority of Section 130050 et seq. of the California Public Utilities Code; 2.2 WHEREAS, COMMISSION is authorized, pursuant to Section 2550 et seq. of the California Streets and Highways Code, to act as SAFE for purposes of providing a motorist aid system, including provision of freeway service patrols; 2.3 WHEREAS, SAFE requires the services of a CONTRACTOR to provide the freeway service patrol professional services as described in the Scope of Services; 2.4 WHEREAS, SAFE has determined that CONTRACTOR is best qualified to perform the required services; 2.5 WHEREAS, the CONTRACTOR is able and willing to perform the required services under the terms and conditions of this Contract; APPENDIX B - 1 249 2.6 WHEREAS, COMMISSION is the short range transportation planning agency for Riverside County, and programs federal, state, and local funds. COMMISSION has entered into a Memorandum of Understanding with Caltrans and CHP to fund peak period freeway service patrols on selected freeway segments in Riverside County; and 2.7 WHEREAS, Section 21718 (a) of the California Vehicle Code specifically authorized CHP to be responsible for freeway service patrols stopping on freeways for the purpose of rapid removal of impediments to traffic. Article 3, Section 91, of the Streets and Highways Code, states that Caltrans has responsibility to improve and maintain the state highways. Caltrans also has the responsibility for traffic management and removing impediments from the highways. NOW, THEREFORE, for the consideration hereinafter stated, SAFE and CONTRACTOR agree as follows: 3. TERMS. 3.1 General Scope of Services. The purpose of the Freeway Service Patrol (“FSP”) program is to provide for the rapid removal of disabled vehicles and vehicles involved in minor accidents from the freeway. Contractor promises and agrees to furnish to SAFE all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide the FSP services ("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, and the SOP manual (as defined below). 3.1.1. Contract Oversight. Caltrans and CHP will jointly oversee the Services. Both agencies will have responsibility for overseeing Service performance and ensuring that the CONTRACTOR abides by the terms of this Contract. CHP is responsible for dispatch services to incident locations within the CONTRACTOR’s patrol limits. The dispatching will be done in accordance with this Contract. A Standard Operating Procedures (“SOP”) manual will be given to the CONTRACTOR explaining the types of incidents to which his/her operators may be dispatched. 3.1.2 Beat Descriptions. The FSP will operate on selected freeway segments referred to herein as “beats”. Each beat has specific turnaround locations and designated drop locations identified by the CHP. Exhibit “A” shows the specific limits, number of tow trucks, number of back-up trucks and hours of operation, and holidays for the CONTRACTOR’s specific beat. SAFE reserves the right to add or delete holidays to the work schedule, provided that SAFE provides CONTRACTOR seven (7) days advanced notice of such addition or deletion. Travel time to and from the beat will be at the expense of the CONTRACTOR. APPENDIX B - 2 250 3.1.3 Change Orders. At any time during the term of this Contract, SAFE reserves the right to adjust beat specifications to better accommodate demand for the Services, at no cost to SAFE. SAFE may direct such adjustments during the course of this Contract through written change orders, signed by SAFE, setting forth any changes to Exhibit “A”. Changes may include a change of the specified beat(s) to other beats that SAFE determines better serve the needs of SAFE, as well as changes to schedules and hours for the beats set forth in Exhibit “A”. If warranted, as determined in SAFE’s sole discretion, and during the hours of operation of the Services, the CONTRACTOR may be requested to temporarily reassign his/her FSP operators/trucks to locations outside the assigned beat. Such reassignments shall be at no cost to SAFE. 3.1.4. The SOP Manual. To promote a safe work environment and for the maintenance of professionalism, the most current version of the SOP manual shall, at all times, be followed by the CONTRACTOR and its vehicle operators. The SOP manual, as such manual may from time to time be amended, is incorporated into this Contract by reference. CONTRACTOR shall be notified and provided with a copy of any changes to the SOP manual. Drivers found not to be in compliance with FSP procedures, as set forth in the SOP manual or this Contract, may be suspended or terminated from the FSP program and the CONTRACTOR may be fined three (3) times the hourly Contract rate in one (1) minute increments until a replacement vehicle is provided (Driver and Truck must return to beat compliant with all FSP requirements), or fined for the entire shift at three (3) times the hourly rate at the discretion of the FSP Field Supervisors. 3.2 Equipment Requirements. CONTRACTOR shall comply with all equipment requirements outlined in the attached Exhibit “A”. 3.3 Commencement of Services. The CONTRACTOR shall commence work upon receipt of a written Notice to Proceed from SAFE. 3.4 Term. The term of this Contract shall be from January 1, 2017 (“Effective Date”) through December 31, 2019 unless earlier terminated as provided herein. SAFE, at its sole discretion, may renew this Contract for a total of one (1) separate two-year term, based on the option-year rate. SAFE shall also have the right to renew this Contract from one month up to a one year term after the initial term by providing notice as provided below. SAFE must provide written notice to CONTRACTOR no less than ninety (90) days prior to the end of the applicable term, indicating its renewal of the Contract. CONTRACTOR shall complete the Services within the term of this Contract, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Contract shall remain in effect following the termination of this Contract. If SAFE, at its sole discretion, renews this Contract for one or both of the additional separate one year terms as provided, the option-year rates shall be as follows: APPENDIX B - 3 251 SCHEDULE OF HOURLY RATES Classification Option Years Hourly Rate Contract $_X per hour 3.5 SAFE's Representative. SAFE hereby designates the SAFE Executive Director or his or her designee, to act as its Representative for the performance of this Contract ("SAFE’s Representative"). SAFE’s Representative shall have the authority to act on behalf of SAFE for all purposes under this Contract. SAFE's Representative shall also review and give approval, as needed, to the details of CONTRACTOR's work as it progresses. CONTRACTOR shall not accept direction or orders from any person other than the SAFE’s Representative or his or her designee. 3.6 CONTRACTOR’S Representative. CONTRACTOR hereby designates [INSERT NAME, TITLE], to act as its representative for the performance of this Contract ("CONTRACTOR’s Representative"). CONTRACTOR’s Representative shall have full authority to act on behalf of CONTRACTOR for all purposes under this Contract. The CONTRACTOR’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Contract. CONTRACTOR shall work closely and cooperate fully with SAFE's Representative and any other agencies which may have jurisdiction over or an interest in the Services. CONTRACTOR's Representative shall be available to the SAFE staff at all reasonable times. Any substitution in CONTRACTOR's Representative shall be approved in writing by SAFE's Representative. 3.7 Substitution of Key Personnel. CONTRACTOR has represented to SAFE that certain key personnel will perform and coordinate the Services under this Contract. Should one or more of such personnel become unavailable, CONTRACTOR may substitute other personnel of at least equal competence upon written approval by SAFE’s Representative. In the event that SAFE’s Representative and CONTRACTOR cannot agree as to the substitution of the key personnel, SAFE shall be entitled to terminate this Contract for cause, pursuant to the provisions of Section 3.15. The key personnel for performance of this Contract are: [LIST NAMES AND TITLES]. 3.7.1 Availability of FSP Manager. Except in the case of unpreventable circumstances, the FSP Manager must be available at the CONTRACTOR’s office for at least 50% of each Work Day to address time sensitive issues related to this Contract or the Services, including, but not limited to, FSP administrative responsibilities; SAFE, CHP, and Caltrans requests; driver matters; and truck maintenance issues. CONTRACTOR shall, within 24 hours, notify SAFE of each circumstance causing the FSP Manager not to be available as required herein. As used in this section, the term “Work Day” shall mean and refer to any day that FSP service is provided, during those hours of operation for Construction FSP as identified on the attached Exhibit “A-1”. APPENDIX B - 4 252 3.8 Review of Work and Deliverables. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Contract may be required to be submitted to SAFE's Representative in draft form, and SAFE’s Representative may require revisions of such drafts prior to formal submission and approval. In the event that SAFE's Representative, in his or her sole discretion, determines the formally submitted work product to be inadequate, SAFE's Representative may require CONTRACTOR to revise and resubmit the work at no cost to SAFE. Upon determination by SAFE that CONTRACTOR has satisfactorily completed the Services required under this Contract and within the term set forth in Section 3.4, SAFE shall give CONTRACTOR a written Notice of Final Completion. Upon receipt of such notice, CONTRACTOR shall incur no further costs hereunder, unless otherwise specified in the Notice of Completion. CONTRACTOR may request issuance of a Notice of Final Completion when, in its opinion, it has satisfactorily completed all Services required under the provisions of this Contract. 3.9 Appearance at Hearings. If and when required by SAFE, CONTRACTOR shall render assistance at public hearings or other meetings related to the performance of the Services. 3.10 Standard of Care: Licenses. CONTRACTOR represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Contract. CONTRACTOR shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. CONTRACTOR warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. CONTRACTOR further represents and warrants to SAFE that its employees and subcontractors have all licenses, permits, qualifications (including medical certification) and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Contract. CONTRACTOR shall perform, at its own cost and expense and without reimbursement from SAFE, any services necessary to correct errors or omissions which are caused by the CONTRACTOR’s failure to comply with the standard of care provided for herein, and shall be fully responsible to SAFE for all damages and other liabilities provided for in the indemnification provisions of this Contract arising from the CONTRACTOR’s errors and omissions. Any employee of CONTRACTOR or its subcontractors who is determined by SAFE to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to SAFE, shall be promptly removed from performing the Services by the CONTRACTOR and shall not be re-employed to perform any of the Services. 3.11 Opportunity to Cure. SAFE may provide CONTRACTOR an opportunity to cure, at CONTRACTOR's expense, all errors and omissions which may be disclosed during performance of the Services. Should CONTRACTOR fail to make such correction in a timely manner, such correction may be made by SAFE, and the cost thereof charged to CONTRACTOR. APPENDIX B - 5 253 3.12 Inspection of Work. CONTRACTOR shall allow SAFE's Representative to inspect or review CONTRACTOR's performance of Services in progress at any time. SAFE/Caltrans/CHP also reserves the right to audit all paperwork demonstrating that CONTRACTOR participates in an employee alcohol/drug-testing program and the DMV Pull Notice Program. 3.13 Laws and Regulations. CONTRACTOR shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Services, including all Cal/OSHA requirements, and shall give all notices required by law. CONTRACTOR shall be solely liable for all violations of such laws and regulations in connection with Services. If the CONTRACTOR performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to SAFE, CONTRACTOR shall be solely responsible for all costs arising therefrom. CONTRACTOR shall defend, indemnify and hold SAFE, their officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.14 Damage Complaints. Upon receiving a damage complaint from a motorist assisted by the CONTRACTOR, that the CONTRACTOR damaged their vehicle while lending assistance, the CONTRACTOR shall notify CHP immediately regarding the nature of the damage complaint and its disposition. The CONTRACTOR shall reply to the motorist by telephone within twenty-four (24) hours of receiving the damage complaint notification. If necessary, the CONTRACTOR shall send either his or her authorized representative or his or her insurance company representative to inspect the vehicle and complete an incident report within forty-eight (48) hours after receiving the damage complaint. If the investigation shows that damage to the vehicle could have been caused by the CONTRACTOR, the CONTRACTOR shall negotiate in good faith to try and resolve the issue and shall report to the CHP the result of the negotiations. All complaints shall be resolved within a reasonable period of time after being received. 3.14.1 Complaint Review Committee. The FSP Technical Advisory Committee (“FSP TAC”) is composed of voting members from CHP, SAFE and Caltrans. Voting members of the FSP TAC are hereby designated as the members of the Damage Complaint Review Committee (“DCRC”). If the DCRC finds that justifiable complaints are not resolved within a reasonable time frame, it can recommend that payment to the CONTRACTOR in the amount of the damage claim may be deducted from the CONTRACTOR’s monthly invoice. 3.15 Termination. 3.15.1 Notice; Reason. SAFE may, by written notice to CONTRACTOR, terminate this Contract, in whole or in part, including, without limitation, the geographical territory covered by this Contract, at any time by giving written notice to CONTRACTOR of such termination, and specifying the effective date thereof (“Notice of Termination”). Such APPENDIX B - 6 254 termination may be for SAFE’s convenience or because of CONTRACTOR's failure to perform its duties and obligations under this Contract, including, but not limited to, the failure of CONTRACTOR to timely perform Services pursuant to the Scope of Services described in Section 3, entitled “Terms,” as well as Section 7 of the RFP. CONTRACTOR may not terminate this Contract except for cause. 3.15.2 Discontinuance of Services. Upon receipt of the written Notice of Termination, CONTRACTOR shall discontinue all affected Services as directed in the Notice of Termination, and deliver to SAFE all Documents and Data, as defined in this Contract, as may have been prepared or accumulated by CONTRACTOR in performance of the Services, whether completed or in progress. 3.15.3 Effect of Termination For Convenience. If the termination is to be for the convenience of SAFE, SAFE shall compensate CONTRACTOR for Services fully and adequately provided through the effective date of termination as provided in the Notice of Termination. Such payment shall include a pro-rated amount of profit, if applicable, up through such effective date, but no amount shall be paid for anticipated profit on unperformed Services past such effective date. CONTRACTOR shall provide documentation deemed adequate by SAFE's Representative to show the Services actually completed by CONTRACTOR prior to the effective date of termination. This Contract shall terminate on the effective date of the Notice of Termination. 3.15.4 Effect of Termination for Cause. If the termination is for cause, CONTRACTOR shall be compensated for those Services which have been fully and adequately completed and accepted by SAFE as of the effective date of termination as provided in the Notice of Termination. In such case, SAFE may take over the work and prosecute the same to completion by contract or otherwise. Further, CONTRACTOR shall be liable to SAFE for any reasonable additional costs or damages incurred to revise work for which SAFE has compensated CONTRACTOR under this Contract, but which SAFE has determined in its sole discretion needs to be revised, in part or whole. Termination of this Contract for cause may be considered by SAFE in determining whether to enter into future contracts with CONTRACTOR. 3.15.5 Cumulative Remedies. The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Contract. 3.15.6 Procurement of Similar Services. In the event this Contract is terminated, in whole or in part, as provided by this Section, SAFE may procure, upon such terms and in such manner as it deems appropriate, services similar to those terminated. 3.15.7 Waivers. CONTRACTOR, in executing this Contract, shall be deemed to have waived any and all claims for damages which may otherwise arise from SAFE's termination of this Contract, for convenience or cause, as provided in this Section. APPENDIX B - 7 255 3.15.8 Authorization to Terminate. The Executive Director of SAFE shall have the full authority and discretion to exercise SAFE’s rights under this Section 3.15, entitled “Termination”. 3.16 Trend Meetings. CONTRACTOR shall attend, or send a designated management-level representative, to all trend meetings (i.e. required FSP TAC meeting which meets every other month). These trend meetings will encompass focused and informal discussions concerning, but not limited to: scope, Services, schedule, current progress of Services, relevant cost issues, and future objectives. CONTRACTOR shall be responsible for having a representative attend all meetings (i.e. FSP TAC meetings) that has the ability to make management-level decisions on the behalf of the CONTRACTOR. If the CONTRACTOR cannot have a management-level representative at a meeting, CONTRACTOR shall notify SAFE and CHP prior to the meeting. Management-level attendance at these meetings shall be considered part of the CONTRACTOR’s contractual responsibility. Meetings are scheduled, and CONTRACTOR will be notified of such schedule, no later than three (3) working days prior to the meeting. 3.17 Fees and Payment. 3.17.1 Amount to be Paid. Subject to the provisions set forth below for Services satisfactorily performed hereunder, SAFE shall pay the CONTRACTOR on a Time and Materials basis a ceiling price NOT TO EXCEED _______________ DOLLARS ($__________). 3.17.2 Maximum Payment is the Ceiling Price. SAFE shall not be obligated to pay costs which exceed the ceiling price set forth above, except as provided in Sections 3.15 and 3.17.10. CONTRACTOR agrees to use its best efforts to perform the services and all obligations under this Contract within such ceiling price. 3.17.3 Hourly Rate. For its performance of the Services, the CONTRACTOR shall be paid for labor expended directly in the performance of the Services at the rates specified below. The CONTRACTOR shall not be entitled to reimbursements for any expenses unless approved in advance in writing. SCHEDULE OF HOURLY RATES Classification Hourly Rate Contract – tow truck operators $ Hourly rates may be adjusted as set forth in Chapter 9, Violations/Penalties, of the FSP Standard Operating Procedures (SOP). 3.17.4 Payment Coverage. The compensation herein above specified will cover and include all applicable labor surcharges such as taxes, insurance and fringe benefits, as well as indirect costs, overhead, general and administrative expense, and profit. APPENDIX B - 8 256 3.17.5 Cost Principles. A) CONTRACTOR agrees to comply with 2 CFR, Part 225, Cost Principles for State and Local Government, and 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. B) CONTRACTOR agrees that 1) Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allowability of individual cost items, and 2) CONTRACTOR shall comply with Federal administrative procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. C) Any costs for which CONTRACTOR has received payment or credit that are determined by subsequent audit to be unallowable under 2 CFR, Part 225, 48 CFR, Chapter 1, Part 31 or 49 CFR, Part 18, are subject to repayment by CONTRACTOR to SAFE. Should CONTRACTOR fail to reimburse moneys due SAFE within 30 days of demand, or within such other period as may be agreed in writing between the Parties hereto, SAFE is authorized to intercept and withhold future payments due CONTRACTOR from SAFE or any third-party source, including, but not limited to, the State Treasurer, the State Controller, and the California Transportation Commission. 3.17.6 Fines. Fines for starting late; leaving early; taking more than 15-minutes worth of breaks per 3-hour shift; or being ordered out of service by a CHP or Caltrans supervisor for Contract infractions shall be deducted from the CONTRACTOR’s monthly invoice at three (3) times the hourly rate. Fines may be further described in the attached Exhibit “B”. 3.17.7 Accounting System. CONTRACTOR and its subcontractors shall establish and maintain an accounting system and records that properly accumulate and segregate expenditures by line item for the Services. The accounting system of CONTRACTOR and its subcontractors shall conform to Generally Accepted Accounting Principles (GAAP), enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices. 3.17.8 Invoices. Invoices for CONTRACTOR’s Services shall be submitted monthly on forms approved by SAFE. Invoices will be routinely verified by CHP. To ensure prompt payment, most billing disputes may be resolved within ten (10) working days of written notice of dispute. However, at SAFE’s discretion, reconciliation of disputed fines that sum to less than 2% of the months’ Invoice may be corrected on the next month’s Invoice to ensure prompt payment of the major portion of the invoice. Each Invoice shall include a cover sheet bearing a certification as to the accuracy of the statement signed by the CONTRACTOR’s authorized officer. APPENDIX B - 9 257 3.17.8.1 Monthly Progress Reports. As part of its Invoice, CONTRACTOR shall submit a Monthly Progress Report, in a form determined by SAFE, which will cover the Invoice period and include spreadsheets showing hours expended for each day of the month per vehicle per beat, and the total for the term of the Contract to date. Submission of such Monthly Progress Report by CONTRACTOR shall be a condition precedent to receipt of payment from SAFE for each monthly Invoice submitted. 3.17.8.2 Payment Schedule. Invoice periods shall be based upon a calendar month, beginning with the first day of the month. SAFE shall reimburse CONTRACTOR for Services adequately provided under this Contract within thirty (30) days of receiving the current period invoice with no errors. If the Invoice is completed incorrectly by the CONTRACTOR it will delay payment. If SAFE fails to pay any amount owed to CONTRACTOR under this Contract within thirty (30) days after receipt of the invoice, CONTRACTOR may give SAFE a notice of failure to pay which shall set forth the invoice(s) and amount(s) which CONTRACTOR believes are thirty (30) days overdue. SAFE shall pay any undisputed invoice(s) and amount(s) within thirty (30) days of receipt of a notice of failure to pay. 3.17.9 Right to Audit. For the purpose of determining compliance with this Contract and other matters connected with the performance of CONTRACTOR’s contracts with third parties, CONTRACTOR and its subcontractors shall each maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, the costs of administering those various contracts. All of the above referenced parties shall make such materials available at their respective offices at all reasonable times for three years from the date of final payment of Funds to CONTRACTOR. SAFE, the State of California acting through the Department of Transportation or its duly authorized representative, the California State Auditor, or the United States Department of Transportation shall each have access to any books, records, and documents that are pertinent for audits, examinations, excerpts, and transactions, and CONTRACTOR shall furnish copies thereof if requested. 3.17.10 Taxes. CONTRACTOR shall pay any sales, use, or other taxes, if any, attributable to the provision of the Services. 3.17.11 Travel and Subsistence. Payments to CONTRACTOR for travel and subsistence expenses claimed for reimbursement or applied as local match credit shall not exceed rates authorized to be paid exempt non-represented State employees under current State Department of Personnel Administration (DPA) rules. If the rates invoiced are in excess of those authorized DPA rates, then CONTRACTOR is responsible for the cost difference and any overpayments shall be reimbursed to SAFE on demand. 3.17.12 Employment Adverse to the SAFE. CONTRACTOR shall notify SAFE, and shall obtain SAFE’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against SAFE during the term of this Contract. APPENDIX B - 10 258 3.17.13 Extra Work. At any time during the term of this Contract, SAFE may request CONTRACTOR to perform Extra Work. “Extra Work” shall mean any work which is determined by SAFE to be necessary for proper completion of the Services, but which the Parties did not reasonably anticipate would be necessary at the time of the execution of this Contract and was not included in the Scope of Services. Extra Work, if any, shall be reimbursed at the same hourly rate as identified in Section 3.17.3. CONTRACTOR shall not perform, nor be compensated for Extra Work without obtaining authorization in the form of a written Extra Work Order issued by SAFE’s Representative. For instance, Construction FSP services as it relates to construction activity can be considered Extra Work. In the event an Extra Work Order is not issued and signed by SAFE’s Representative, CONTRACTOR shall not provide such Extra Work. However, no compensation or reimbursement for Extra Work shall be paid if it is not authorized by SAFE and if the cumulative total of such Extra Work under the Contract exceeds $25,000. All Extra Work in a cumulative total in excess of $25,000 must be approved in advance by amendment to this Contract. 3.17.13.1 Extra Work Cancellation Policy. If a tow operator is scheduled for Extra Work and they are notified of a cancellation with LESS than a 24 hour notice – then the tow operator will be reimbursed for three (3) hours of the agreed upon contract hourly rate. Note: The minimum of the three (3) hours should cover eight hours of the drivers’ hourly wage. Starting with “Less than a 24 hour cancellation notice” up to the time the tow operator is on the assigned Extra Work Beat, the “three contract hour cancellation rate” remains the same. Once the tow operator is on the Extra Work Beat, the cancellation policy changes. If a tow operator begins the Extra Work (the truck is on the Beat) and is then notified that Extra Work has been cancelled, the FSP operator will be paid for the entire shift period up to a maximum of eight (8) hours. A shift period for this policy is defined as: the time period of the actual Extra Work shift assigned or for a maximum of eight (8) contract hours, whichever is less. The supervising FSP CHP Officer for the Extra Work shift will make the final determination as to whether or not the tow operator will continue to work the Extra Work shift. Regardless, the tow operator will be reimbursed for the original shift period or a maximum or eight (8) hours, whichever is less. 3.17.14 Most Favored Customer. CONTRACTOR agrees that, throughout the term of this Contract, it shall not enter into any FSP services agreement with any government agency with whom it has either existing contractual relationship or has no contractual relationship that predates this Contract, pursuant to which CONTRACTOR agrees to charge FSP services fees less than those as indicated in this Contract for substantially the same level of FSP services contemplated by this Contract. Should SAFE establish that such lower fees have been agreed to by CONTRACTOR with another government agency, CONTRACTOR agrees to renegotiate the fees or to refund SAFE an amount equal to the difference between the fees indicated in this Contract and the fees charged to other government agency customer. APPENDIX B - 11 259 3.18 Delay in Performance. 3.18.1 Excusable Delays. Neither Party shall be considered in default in the performance of its obligations to the extent that the performance of any such obligation is prevented or delayed by an Excusable Delay. Should CONTRACTOR be delayed or prevented from the timely performance of any act or Services required by the terms of the Contract by an Excusable Delay, Contractor’s schedule for completion of tasks affected by such delay may be extended as set forth in Section 3.18.2. But in every case, CONTRACTOR’s failure to perform must be reasonably beyond the control, and without the fault or negligence of the CONTRACTOR. Excusable Delays are acts of God or of the public enemy, acts or omissions of SAFE or other governmental agencies in either their sovereign or contractual capacities, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather. 3.18.2 Written Notice. If CONTRACTOR believes it is entitled to an extension of time due to conditions set forth in subsection 3.18.1, CONTRACTOR shall provide written notice to the SAFE within seven (7) working days from the time CONTRACTOR knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of CONTRACTOR to provide such timely notice shall constitute a waiver by CONTRACTOR of any right to an excusable delay in time of performance. 3.18.3 Mutual Contract. Performance of any Services under this Contract may be delayed upon mutual agreement of the Parties. Upon such agreement, CONTRACTOR's Schedule of Services (as defined in their Proposal) shall be extended as necessary by SAFE. CONTRACTOR shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 3.19 Status of CONTRACTOR/Subcontractors. 3.19.1 Independent Contractor. The Services shall be performed by CONTRACTOR or under its supervision. CONTRACTOR will determine the means, methods and details of performing the Services subject to the requirements of this Contract. SAFE retains CONTRACTOR on an independent contractor basis and not as an employee, agent or representative of the SAFE. CONTRACTOR retains the right to perform similar or different services for others during the term of this Contract. Any additional personnel performing the Services under this Contract on behalf of CONTRACTOR shall at all times be under CONTRACTOR's exclusive direction and control. CONTRACTOR shall pay all wages, salaries and other amounts due such personnel in connection with their performance of Services and as required by law. CONTRACTOR shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, disability insurance, and workers' compensation insurance. 3.19.2 Assignment or Transfer. CONTRACTOR shall not assign, hypothecate, or transfer, either directly or by operation of law, this Contract or any interest APPENDIX B - 12 260 herein, without the prior written consent of SAFE. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. Notwithstanding the foregoing, SAFE may transfer or assign any and all of its rights and obligations under this Contract, including, without limitation the rights to terminate this Contract, as assigned, pursuant to Section 3.15 hereof. 3.19.3 Subcontracting. CONTRACTOR shall not subcontract any portion of the work or Services required by this Contract, except as expressly stated herein, including the Scope of Services, without prior written approval of the SAFE. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Contract. SAFE shall have no liability to any subconsultant(s) for payment for services under this Contract or other work performed for CONTRACTOR, and any subcontract entered into by CONTRACTOR pursuant to the conduct of services under this Contract shall duly note that the responsibility for payment for the technical services or any other work performed shall be the sole responsibility of CONTRACTOR. 3.20 CONTRACTOR will maintain an inventory of all non-expendable equipment, defined as having a useful life of at least two years and an acquisition cost of $500 or more, paid for with funds provided pursuant to this Contract. 3.21 Ownership of Materials and Confidentiality. 3.21.1 Documents & Data; Licensing of Intellectual Property. All plans, specifications, studies, drawings, estimates, materials, data, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, spreadsheets, or data magnetically or otherwise recorded on computer diskettes, prepared by or on behalf of CONTRACTOR under this Contract (“Documents and Data”), shall be made available to SAFE at all times during this Contract and shall become the property of SAFE upon the completion of the term of this Contract, except that CONTRACTOR shall have the right to retain copies of all such Documents and Data for its records. Should CONTRACTOR, either during or following termination of this Contract, desire to use any Documents and Data, it shall first obtain the written approval of SAFE. This Contract creates a no-cost, nonexclusive, and perpetual license for SAFE to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in the Documents and Data which are prepared or caused to be prepared by CONTRACTOR under this Contract (“Intellectual Property”). CONTRACTOR shall require all subcontractors to agree in writing that SAFE is granted a no-cost, nonexclusive, and perpetual license for any Intellectual Property the subcontractor prepares under this Contract. CONTRACTOR represents and warrants that CONTRACTOR has the legal right to license any and all Intellectual Property prepared or caused to be prepared by CONTRACTOR under this Contract. SAFE shall not be limited in any way in its use of the Intellectual Property at any time, provided that any such use not within the purposes intended by this Contract shall be at SAFE's sole risk. APPENDIX B - 13 261 3.21.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to CONTRACTOR in connection with the performance of this Contract shall be held confidential by CONTRACTOR to the extent permitted by law, including, without limitation, the California Public Records Act, Government Code section 6250 et seq. Such materials shall not, without the prior written consent of SAFE, be used by CONTRACTOR for any purposes other than the performance of the Services as provided herein. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services, except as provided herein. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is generally known, or becomes known, to the related industry shall be deemed confidential. CONTRACTOR shall not use SAFE's name or insignia, photographs, or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production, or other similar medium without the prior written consent of SAFE. 3.22 Indemnification. CONTRACTOR shall indemnify and hold SAFE, COMMISSION, CHP, Caltrans and their directors, officials, officers, agents, contractors, consultants, employees, and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of, or incident to, any acts, omissions, or willful misconduct of the CONTRACTOR, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services or this Contract, including without limitation, the payment of all consequential damages and other related costs and expenses. CONTRACTOR shall defend, at CONTRACTOR’s own cost, expense and risk, any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, agents, contractors, consultants, employees, and volunteers. CONTRACTOR shall pay and satisfy any judgment, award, or decree that may be rendered against SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, agents, consultants, employees, and volunteers, in any such suit, action, or other legal proceeding. CONTRACTOR shall reimburse SAFE, COMMISSION, CHP, Caltrans and their directors, officials, officers, agents, consultants, employees, and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. CONTRACTOR’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the CONTRACTOR, SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, agents, consultants, employees, and volunteers. 3.23 Insurance. 3.23.1 Time for Compliance. CONTRACTOR shall not commence work under this Agreement until it has provided evidence satisfactory to SAFE that it has secured all insurance required under this section, in a form and with insurance companies acceptable to SAFE. In addition, CONTRACTOR shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. APPENDIX B - 14 262 3.23.2 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: (i) General Liability: Per occurrence: $2,000,000 Project Specific Aggregate: $4,000,000 Products/Completed Operations: $1,000,000 Personal Injury Limit: $1,000,000 (ii) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (iii) 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. 3.23.3 On-Hook Insurance. CONTRACTOR shall maintain a policy of On-Hook Towing Insurance to include the care, custody or control exposure present while vehicles are being serviced roadside, on-hook, or in a storage yard for not less than one hundred thousand dollars ($100,000). 3.23.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or CONTRACTOR shall provide endorsements on forms approved by SAFE 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) APPENDIX B - 15 263 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 SAFE, COMMISSION, CHP, Caltrans and their 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 SAFE, COMMISSION, CHP, or Caltrans 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) SAFE, COMMISSION, CHP, Caltrans and their 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 SAFE, COMMISSION, CHP, Caltrans and their 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 SAFE, COMMISSION, CHP, Caltrans or their 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. (ii) The insurer shall agree to waive all rights of subrogation against SAFE, 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 APPENDIX B - 16 264 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 SAFE, 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 SAFE, COMMISSION, CHP, and Caltrans (if agreed to in a written contract or agreement) before SAFE, COMMISSION, CHP or Caltrans 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 SAFE 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 SAFE 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 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 SAFE, 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 APPENDIX B - 17 265 canceled and not replaced, SAFE has the right but not the duty to obtain the insurance it deems necessary and any premium paid by SAFE will be promptly reimbursed by CONTRACTOR or SAFE will withhold amounts sufficient to pay premium from CONTRACTOR payments. In the alternative, SAFE may cancel this Agreement. SAFE may require the CONTRACTOR to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither SAFE, COMMISSION, CHP, Caltrans nor any of their 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: 3.23.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by SAFE. If SAFE does not approve the deductibles or self-insured retentions as presented, CONTRACTOR shall guarantee that, at the option of SAFE, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects SAFE, 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. 3.23.6 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 SAFE. 3.23.7 Verification of Coverage. CONTRACTOR shall furnish SAFE with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to SAFE. 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 SAFE before work commences. SAFE reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.23.8 Subcontractor Insurance Requirements. CONTRACTOR shall not allow any subcontractors to commence work on any subcontract until they have provided evidence satisfactory to SAFE 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 SAFE, COMMISSION, CHP and Caltrans as additional insureds using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by CONTRACTOR, SAFE may approve different scopes or minimum limits of insurance for particular subcontractors or subcontractors. 3.23.9 Review of Coverage. SAFE retains the right at any time to review the coverage, form and amount of insurance required herein and may require CONTRACTOR APPENDIX B - 18 266 to obtain additional insurance reasonably sufficient in coverage, form, amount to provide adequate protection against the kind and extent of risk which exists at the time of change in insurance required. 3.23.10 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. 3.24 Prohibited Interests. 3.24.1 Solicitation. CONTRACTOR maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for CONTRACTOR, to solicit or secure this Contract. Further, CONTRACTOR warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for CONTRACTOR, any fee, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, SAFE shall have the right to rescind this Contract without liability. 3.24.2 Conflict of Interest. For the term of this Contract, no member, officer or employee of SAFE, during the term of his or her service with SAFE, shall have any direct interest in this Contract, or obtain any present or anticipated material benefit arising therefrom. 3.24.3 Conflict of Employment. Employment by the CONTRACTOR of personnel currently on the payroll of SAFE shall not be permitted in the performance of this Contract, even though such employment may occur outside of the employee's regular working hours or on weekends, holidays, or vacation time. Further, the employment by the CONTRACTOR of personnel who have been on SAFE payroll within one year prior to the date of execution of this Contract, where this employment is caused by, and or dependent upon, the CONTRACTOR securing this or related Contracts with SAFE, is prohibited. 3.25 Equal Opportunity Employment. CONTRACTOR 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, age, disability (including HIV and AIDS), mental disability, medical condition (cancer), marital status, denial of family and medical care leave, or denial of pregnancy disability leave. Such APPENDIX B - 19 267 non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. Employment and Housing Act (Gov. Code Section 12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Admin. Code, Tit. 2, Section 7285.0 et seq.): The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this Contract by reference and made a part hereof as if set forth in full. CONTRACTOR shall include the provisions of this Section in all of CONTRACTOR’s subcontracts with respect to work under this Agreement, unless exempted by the Regulations. CONTRACTOR shall also comply with all relevant provisions of SAFE's Minority Business Enterprise program, Affirmative Action Plan, or other related SAFE programs or guidelines currently in effect or hereinafter enacted. 3.26 Right to Employ Other CONTRACTORs. SAFE reserves the right to employ other CONTRACTORs in connection with the Services. 3.27 Governing Law. The validity of this Contract and of any of its terms or provisions, as well as the rights and duties of the parties hereunder, shall be governed by and construed with the laws of the State of California. 3.28 Venue. The Parties acknowledge and agree that this Contract was entered into and intended to be performed in Riverside County, California. The Parties agree that the venue for any action or claim brought by any Party will be the Central District of Riverside County. Each Party hereby waives any law or rule of court which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party, the Parties agree to use their best efforts to obtain a change of venue to the Central District of Riverside County. 3.29 Time of Essence. Time is of the essence for each and every provision of this Contract. 3.30 Headings. Article and section headings, paragraph captions, or marginal headings contained in this Contract are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.31 Notices. All notices hereunder and communications regarding interpretation of the terms of this Contract or changes thereto shall be given to the respective Parties at the following addresses, or at such other addresses as the respective Parties may provide in writing for this purpose: APPENDIX B - 20 268 CONTRACTOR: Name Title Address City, State Zip Attn: ________________ SAFE: Riverside County Service Authority for Freeway Emergencies FSP Program P.O. Box 12008 Riverside, CA 92502-2208 Attn: Brian Cunanan Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.33 Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.34 Entire Contract. This Agreement contains the entire Agreement of the Parties relating to the subject matter hereof and supersedes all prior negotiations, contracts or understandings. 3.35 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.36 No Waiver. Failure of CONTRACTOR to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 3.37 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 SAFE 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 CONTRACTOR or the Services are not subject to the Eight-Hour Law. APPENDIX B - 21 269 3.38 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 SAFE. CONTRACTOR shall not respond to any such subpoena or court order until notice to the SAFE is provided as required herein, and shall cooperate with the SAFE in responding to the subpoena or court order. 3.39 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. 3.40 Counterparts. This Agreement may be signed in one or more counterparts, any one of which shall be effective as an original document. 3.41 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.42 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. 3.43 Attorneys' Fees and Costs. If any legal action is instituted to enforce or declare any Party's rights hereunder, each Party, including the prevailing Party, must bear its own costs and attorneys' fees. This paragraph shall not apply to those costs and attorneys' fees directly arising from any third party legal action against a Party hereto and payable under Section 3.21, Indemnification. 3.44 Consent. Whenever consent or approval of any Party is required under this Contract, that Party shall not unreasonably withhold nor delay such consent or approval. 3.45 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. [Signatures on following page] APPENDIX B - 22 270 SIGNATURE PAGE TO AGREEMENT 16-45-082-00 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first herein written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION [LEGAL STATUS OF CONTRACTOR] ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES By: ____________________________ By: _____________________________ Scott Matas, Chair _____________________________ Name _____________________________ Title APPROVED AS TO FORM: Attest: By: ____________________________ By: ____________________________ Best Best & Krieger LLP, Counsel to the Riverside County Its: Secretary Service Authority for Freeway Emergencies APPENDIX B - 23 271 EXHIBIT “A” Scope of Services APPENDIX B - 24 272 EXHIBIT “B” Compensation and Payment [INSERT FINAL PRICE PROPOSALS FROM CONTRACTOR’S PROPOSAL] APPENDIX B - 25 273