HomeMy Public PortalAbout10 October 24, 2016 Western Riverside County Programs and ProjectsComments are welcomed by the Committee. If you wish to provide comments to the Committee,
please complete and submit a Speaker Card to the Clerk of the Board.
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE
MEETING AGENDA
TIME: 1:30 p.m.
DATE: Monday, October 24, 2016
LOCATION: BOARD ROOM
County of Riverside Administrative Center
4080 Lemon Street, First Floor, Riverside
COMMITTEE MEMBERS
Ben Benoit, Chair / Timothy Walker, City of Wildomar
Deborah Franklin, Vice Chair / Art Welch, City of Banning
Karen Spiegel / 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.
COMM-WRC-00034
Riverskie County Tronspodation Commission
TO: Riverside County Transportation Commission
FROM: Jennifer Harmon, Clerk of the Board
DATE: October 19, 2016
SUBJECT: Possible Conflicts of Interest Issues — Western Riverside County Programs and
Projects Committee Agenda of October 24, 2016
The October 24 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. 6 — Amendment to the 91 Express Lanes Operator Agreement
Consultant(s): Cofiroute USA, LLC
Jan Mittermeier, Chief Operating Officer
20 Pacifica, Suite 420
Irvine, CA 92618
Agenda Item No. 8 — Agreement for Final Design and Right of Way Acquisition for the
Construction of the Interstate 215/Placentia Avenue Interchanae Improvement Project
Consultant(s): T.Y. Lin International
F. Clark Fernon, Vice President
3633 East Inland Empire Blvd., Suite 900
Ontario, CA 91764
Alexandra Rackerby
From:
Sent:
To:
Cc:
Subject:
Attachments:
Alexandra Rackerby
Thursday, October 20, 2016 8:05 AM
Alexandra Rackerby
Anne Mayer; STANDIFO; Jennifer Harmon
RCTC Western Riverside County Programs and Projects Committee
Conflict of Interest Form.pdf; Conflict of Interest Memo.pdf
Good Morning Commissioners,
The Western Riverside County Programs and Projects Committee agenda for Monday, October 24, 2016 is posted on
our website at http://www.rctc.org/uploads/media items/western-riverside-county-programs-and-proiects-committee-
october-24-2016.original.pdf Also, attached is the Conflict of Interest Memo and Form for your information.
Let me know if you have any questions or concerns.
Thank you.
Respectfully,
ANie Rackerby
Records Technician
Riverside County Transportation Commission
PO Box 12008, Riverside, CA 92502.2208
4080 Leman Street, 3ro Floor, Riverside, CA92501
(951) 787-7141 I rctcorg
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RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE
www.rctc.org
AGENDA*
*Actions may be taken on any item listed on the agenda
1:30 p.m.
Monday, October 24, 2016
BOARD ROOM
County Administrative Center
4080 Lemon Street, First Floor
Riverside, California
In compliance with the Brown Act and Government Code Section 54957.5, agenda materials distributed 72
hours prior to the meeting, which are public records relating to open session agenda items, will be available for
inspection by members of the public prior to the meeting at the Commission office, 4080 Lemon Street, Third
Floor, Riverside, CA, and on the Commission’s website, www.rctc.org.
In compliance with the Americans with Disabilities Act, Government Code Section 54954.2, and the Federal
Transit Administration Title VI, please contact the Clerk of the Board at (951) 787-7141 if special assistance is
needed to participate in a Commission meeting, including accessibility and translation services. Assistance is
provided free of charge. Notification of at least 48 hours prior to the meeting time will assist staff in assuring
reasonable arrangements can be made to provide assistance at the meeting.
1. CALL TO ORDER / ROLL CALL
2. PLEDGE OF ALLEGIANCE
3. 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 distribute d 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.
4. APPROVAL OF MINUTES – SEPTEMBER 26, 2016
Western Riverside County Programs and Projects Committee
October 24, 2016
Page 2
5. 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.)
6. AMENDMENT TO THE 91 EXPRESS LANES OPERATOR AGREEMENT
Page 1
Overview
This item is for the Committee to:
1) Approve Agreement No. 13-31-105-01, Amendment No. 1 to Agreement No. 13-31-
105-01, the operator agreement (ORCOA) between the Orange County Transportation
Authority (OCTA), Riverside County Transportation Commission (Commission), and
Cofiroute USA, LLC (Cofiroute), for a net reduction in operations and maintenance
services for the 91 Express Lanes in an amount of $2,900,947, and a total amount not
to exceed $31,196,999;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement on behalf of the Commission; and
3) Forward to the Commission for final action.
7. TRANSPORTATION UNIFORM MITIGATION FEE REGIONAL ARTERIAL PROGRAM – PROJECT
DELIVERY UPDATE
Page 17
Overview
This item is for the Committee to:
1) Receive and file a status report on the Transportation Uniform Mitigation Fee (TUMF)
Regional Arterial program; and
2) Forward to the Commission for final action.
Western Riverside County Programs and Projects Committee
October 24, 2016
Page 3
8. AGREEMENT FOR FINAL DESIGN AND RIGHT OF WAY ACQUISITION FOR THE CONSTRUCTION
OF THE INTERSTATE 215/PLACENTIA AVENUE INTERCHANGE IMPROVEMENT PROJECT
Page 20
Overview
This item is for the Committee to:
1) Award Agreement No. 16-31-066-00 to T.Y. Lin International (T.Y. Lin) to perform final
engineering services and prepare plans, specifications, and cost estimate (PS&E) for
the construction of the Interstate 215 /Placentia Avenue interchange improvements
project (Project) in the amount of $3,412,700, plus a contingency amount of $341,300
for potential changes in scope, for a total amount not to exceed $3,754,000;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement on behalf of the Commission;
3) Authorize the Executive Director, or designee, to approve contingency work as may be
required for the Project;
4) Approve Agreement No. 17-31-039-00 with Caltrans for the final design and right of
way (ROW) acquisition of the Project;
5) Authorize the Executive Director, pursuant to legal counsel review, to execute the
agreement and future non-funding related amendments to this agreement;
6) Authorize the Executive Director, pursuant to legal counsel review, to execute utility
agreements required for the Project in an amount not to exceed $1.2 million;
7) Authorize the Executive Director, pursuant to legal counsel review, to acquire required
parcels and mitigation property for the Mid County Parkway (MCP) project in
accordance with the Commission’s ROW policies and procedures and subject to
available funding; and
8) Forward to the Commission for final action.
Western Riverside County Programs and Projects Committee
October 24, 2016
Page 4
9. MOBILE SOURCE AIR REDUCTION REVIEW COMMITTEE TRANSPORTATION CONTROL
MEASURE PARTNERSHIP PROGRAM
Page 61
Overview
This item is for the Committee to:
1) Approve Agreement No. 17-25-016-00 with the South Coast Air Quality Management
District (SCAQMD) for a grant from the Mobile Source Air Pollution Reduction Review
Committee (MSRC) Transportation Control Measure Partnership Program in the
amount of $1,909,241;
2) Approve Agreement No. 17-25-038-00 with the city of Riverside for the Rustin Avenue
Sidewalk Improvement and Bike Lane project in the amount not to exceed $600,000;
3) Approve an amendment in the amount of $1,909,241 to the FY 2016/17 Co mmuter
Rail Short Range Transit Plan (SRTP);
4) Approve an increase in revenues and expenditures of $1,909,241 in the FY 2016/17
budget related to the MSRC grant;
5) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreements on behalf of the Commission; and
6) Forward to the Commission for final action.
10. OCTA 2016 ANGELS EXPRESS AGREEMENT
Page 88
Overview
This item is for the Committee to:
1) Approve Agreement No. 17-25-014-00 with the Orange County Transportation
Authority (OCTA) for the cost sharing of the 2016 Angels Express Service for an initial
one-year term in an amount not to exceed $33,176, with additional option years for
the 2017 season and beyond upon mutual written agreement by both agencies in an
amount not to exceed an annual 5 percent increase;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement, including option years, on behalf of the Commission; and
3) Forward to the Commission for final action.
Western Riverside County Programs and Projects Committee
October 24, 2016
Page 5
11. TRANSIT TRANSFER AND LICENSE AGREEMENTS
Page 96
Overview
This item is for the Committee to:
1) Approve Agreement No. 17-25-015-00 with Omnitrans for reimbursement of transit transfers
effective January 1, 2017, for an indefinite term cancelable by either party with a 30-day notice
in an amount approximating $15,000 annually;
2) Approve Agreement No. 17-25-033-00 with Megabus Northeast LLC (Megabus) for use of the
Commission’s Riverside Downtown rail station for a three-year term, with two two-year
options to extend the agreement, in an estimated revenue amount of $117,245 for the full
term of all the options;
3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the
agreements, including option years, on behalf of the Commission; and
4) Forward to the Commission for final action.
12. COMMISSIONERS / STAFF REPORT
Overview
This item provides the opportunity for the Commissioners and staff to report on attended and
upcoming meeting/conferences and issues related to Commission activities.
13. ADJOURNMENT
The next Western Riverside County Programs and Projects Committee meeting is scheduled
to be held at 1:30 p.m., Monday, November 28, 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
October 24, 2016
Present Absent
County of Riverside, District I � O
County of Riverside, District V ,� 0
City of Banning ,� 0
City of Corona f 0
City of Eastvale O
City of Jurupa Valley � 0
City of Menifee o0.1� • / 0
City of Moreno Valley O
City of Norco ,� 0
City of Perris �' 0
City of San Jacinto 0
City of Wildomar )3 0
AGENDA ITEM 4
MINUTES
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE
Monday, September 26, 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 1:34 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 Deborah Franklin led the Western Riverside County
Programs and Projects Committee in a flag salute.
3. ROLL CALL
Members/Alternates Present Members Absent
Ben Benoit Marion Ashley
Daryl Busch Yxstian Gutierrez
John Denver Adam Rush
Deborah Franklin
Berwin Hanna
Kevin Jeffries
Frank Johnston
Andrew Kotyuk
Karen Spiegel
4. PUBLIC COMMENTS
There were no requests to speak from the public.
RCTC WRC Programs and Projects Committee Minutes
September 26, 2016
Page 2
5. APPROVAL OF MINUTES – AUGUST 22, 2016 – SPECIAL MEETING
M/S/C (Hanna/Franklin) to approve the minutes as submitted.
6. ADDITIONS/REVISIONS
There were no additions or revisions at this time.
7. AMENDMENT TO INTERSTATE 15 EXPRESS LANES PROJECT INVESTMENT GRADE
TRAFFIC AND REVENUE STUDY SERVICES AGREEMENT
Michael Blomquist, Toll Program Director, presented the scope of the amendment to
the Interstate 15 Express Lanes project investment grade traffic and revenue study
services agreement.
In response to Commissioner Karen Spiegel’s question regarding the Commission’s
current bond rating with Fitch Ratings, Michael Blomquist stated the current investment
grade indicative rating is BBB‐. The Commission was seeking the lowest investment
grade rating for TIFIA financing.
Anne Mayer, Executive Director, added the desired rating for toll financing are much
lower than the rating staff sought for the sales tax bond. It is not associated with the
agency’s sales tax bond rating.
M/S/C (Mann/Franklin) to:
1) Approve Agreement No. 15‐31‐048‐01, Amendment No. 1 to Agreement
No. 15‐31‐048‐00, with Stantec Consulting Services, Inc. (Stantec) for
investment grade traffic and revenue study services for the Interstate
15 Express Lanes project for an additional amount of $199,400 and a
total amount not to exceed $1,399,400;
2) Authorize the Chair or Executive Director, pursuant to legal counsel
review, to execute the agreement on behalf of the Commission; and
3) Forward to the Commission for final action.
8. RCTC 91 EXPRESS LANES OPENING DAY TOLL RATES
Michael Blomquist presented the RCTC 91 Express Lanes opening day toll rates.
In response to Commissioner Franklin’s question regarding transponders,
Michael Blomquist stated customers can purchase a transponder at any time regardless
of the toll rates.
RCTC WRC Programs and Projects Committee Minutes
September 26, 2016
Page 3
At Commissioners Franklin and Spiegel’s request, Michael Blomquist clarified the details
of the rate changes during the ramp‐up period.
M/S/C (Busch/Franklin) to:
1) Receive and file the schedule of opening day toll rates for the RCTC 91
Express Lanes; and
2) Forward to the Commission for final action.
9. AMENDMENT TO 91 EXPRESS LANES RCTC‐OCTA FACILITY AGREEMENT
Eric DeHate, Senior Management Analyst, presented the scope of the amendment to
the 91 Express Lanes RCTC‐OCTA facility agreement.
M/S/C (Franklin/Spiegel) to:
1) Approve Agreement No. 16‐31‐025‐01, Amendment No. 1 to the 91
Express Lanes RCTC‐OCTA Facility Agreement No. 16‐31‐025‐00, with
the Orange County Transportation Authority (OCTA) for the Corona
Customer Service Center (CSC) in the additional amounts of $50,000 for
tenant improvements, $78,316 for rent, plus a contingency amount of
$6,416, for a total additional amount not to exceed $134,732;
2) Authorize 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; and
4) Forward to the Commission for final action.
10. 91 EXPRESS LANES TRAFFIC OPERATIONS CENTER VIDEO SYSTEMS MAINTENANCE
AGREEMENT
Reinland Jones, Toll Technology Manager, presented the scope of the 91 Express Lanes
traffic operations center video systems maintenance agreement.
In response to Commissioner Franklin’s question regarding remote viewing
Reinland Jones stated the original contract does not allow for remote viewing of the toll
road cameras. However, Cofiroute will try to make accommodations for staff to
remotely access the cameras.
M/S/C (Hanna/Spiegel) to:
1) Award Agreement No. 17‐31‐020‐00 to Parsons Transportation Group
(Parsons) for maintenance and repair of the video systems for the 91
Express Lanes Traffic Operations Center (TOC) for a one‐year term, and
RCTC WRC Programs and Projects Committee Minutes
September 26, 2016
Page 4
two one‐year options plus two two‐year options to extend the
agreement, and authorize in an amount not to exceed $850,934;
2) Authorize the Chair or Executive Director, subject to legal counsel
review, to execute the agreement, including option years, on behalf of
the Commission; and
3) Forward to the Commission for final action.
11. CALTRANS MAINTENANCE AGREEMENT FOR RCTC 91 EXPRESS LANES
Reinland Jones presented the scope of the Caltrans maintenance agreement for RCTC 91
Express Lanes.
In response to Commissioner Daryl Busch’s question regarding an emergency response
system for the 91 Express Lanes, Reinland Jones stated Caltrans must to respond within
a specified amount of time depending on the type of emergency.
At Commissioner Spiegel’s request, Michael Blomquist explained the major pavement
rehabilitation schedule.
At Chair Benoit’s request, Reinland Jones provided clarification regarding regular
scheduled maintenance, noting it will be the same as OCTA’s schedule.
M/S/C (Franklin/Johnston) to:
1) Approve Agreement No. 17‐31‐021‐00 with the California Department
of Transportation (Caltrans) for roadway maintenance of the RCTC 91
Express Lanes for a 50‐year term in an amount not to exceed $245,104
for the initial 18‐month period;
2) Authorize the Chair or Executive Director, pursuant to legal counsel
review, to execute the agreement on behalf of the Commission;
3) Authorize the Executive Director to execute amendments to the
agreement related to the cost for each annual work plan following the
initial period for an additional amount not to exceed an annual increase
of 3 percent; and
4) Forward to the Commission for final action.
12. AGREEMENT WITH MOBILE RELAY ASSOCIATES, LLC FOR FREEWAY SERVICE PATROL
DIGITAL RADIO SYSTEM, EQUIPMENT, AND SERVICES
Brian Cunanan, Commuter and Motorist Assistance Manager, presented the scope of
the agreement with Mobile Relay Associates, LLC for freeway service patrol digital radio
system, equipment, and services.
RCTC WRC Programs and Projects Committee Minutes
September 26, 2016
Page 5
M/S/C (Jeffries/Mann) to:
1) Award Agreement No. 17‐45‐022‐00 to Mobile Relay Associates, LLC
(MRA) for a Freeway Service Patrol (FSP) digital radio system,
equipment, and services for a three‐year term and two one‐year
options to extend the agreement, in an amount not to exceed $150,000;
2) Authorize the Chair or Executive Director, pursuant to legal counsel
review, to execute the agreements, including option years, on behalf of
the Commission; and
3) Forward to the Commission for final action.
13. COMMISSIONERS / STAFF REPORT
13A. Anne Mayer announced:
The Commission will become a toll operator in 2017;
The Commission’s 40th Anniversary open house reception is scheduled for
September 29 at the Commission’s office; and
Staff is looking to possibly reschedule the October Commission meeting
in observance of Yom Kippur.
14. ADJOURNMENT
There being no further business for consideration by the Western Riverside County
Programs and Projects Committee, the meeting was adjourned at 2:17 p.m.
Respectfully submitted,
Jennifer Harmon
Clerk of the Board
AGENDA ITEM 6
Agenda Item 6
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: October 24, 2016
TO: Western Riverside County Programs and Projects Committee
FROM: Jennifer Crosson, Toll Operations Manager
THROUGH: Michael Blomquist, Toll Program Director
SUBJECT: Amendment to the 91 Express Lanes Operator Agreement
STAFF RECOMMENDATION:
This item is for the Committee to:
1)Approve Agreement No. 13‐31‐105‐01, Amendment No. 1 to Agreement
No. 13‐31‐105‐01, the operator agreement (ORCOA) between the Orange County
Transportation Authority (OCTA), the Commission, and Cofiroute USA, LLC (Cofiroute),
for a net reduction in operations and maintenance services for the 91 Express Lanes in
an amount of $2,900,947, and a total amount not to exceed $31,196,999;
2)Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement on behalf of the Commission; and
3)Forward to the Commission for final action.
BACKGROUND INFORMATION:
In May 2013 the Commission approved the ORCOA to facilitate the joint operation of the 91
Express Lanes between the Commission and OCTA (Parties) through the use of the existing
contractor, Cofiroute. The scope of work included in the ORCOA identifies the Parties’
responsibilities that are shared and those that are unique to each agency. It also establishes
the Parties’ financial obligation for their respective responsibilities.
As the Commission moves toward the opening of the 91 Express Lanes and the scope of work is
more defined, certain elements of the agreement need to be amended. While certain items
were identified in the agreement to be addressed before opening, others were unanticipated
operational changes that require a modification to the scope of work.
The ORCOA included a negotiated annual 3 percent escalation increase to the annual lump sum
price. However, based on a review of the consumer price index over the past three years, staff
has determined a 2 percent annual increase through July 2021 to be more reasonable. This
change results in a $922,314 reduction to the ORCOA.
The scope of work includes the provision of a customer assistance specialist (CAS). The CAS was
to be provided by Cofiroute for on‐road customer assistance. However, the Commission was
informed by the California Highway Patrol that the Commission is required to operate on‐road
customer assistance services through the Freeway Service Patrol (FSP) program as designated
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Agenda Item 6
customer assistance services through the Freeway Service Patrol (FSP) program as designated
by the Freeway Service Patrol Act. Subsequently, staff competitively procured dedicated on-
road customer assistance services for the 91 Express Lanes, and the Commission awarded a FSP
agreement to a firm in September. As a result of this change, an amendment is necessary to
remove the CAS from the scope of work and to reduce the Commission’s share of the
agreement by $2,235,128.
The scope of work requires Cofiroute to provide maintenance of the on -road equipment,
vehicles, and facilities. However, it does not address who is responsible for providing the
vehicles to be used and maintained by Cofiroute. OCTA has provided Cofiroute with service
vehicles for use on its portion of the 91 Express Lanes , and the Commission needs to provide
three maintenance trucks for use on the Commission’s extension of the 91 Express Lanes in
Riverside County. Cofiroute provided the Commission with three separate bids for the
maintenance trucks and will purchase the trucks from the lowest bidder. The estimated cost of
the trucks, equipment, uniforms, and equipment rental for the term of the contract is
$256,495.
The proposed changes to the ORCOA costs are as follows:
Original Agreement Amount $34,097,946
Escalation Reduction to 2 percent ($922,314)
CAS Reduction ($2,235,128)
Maintenance Vehicles $256,495
Revised Agreement Amount $31,196,999
Staff requests approval of an amendment to the ORCOA to change the annual escalation rate,
remove the CAS from the scope of work, and include the purchase of service vehicles and
related costs resulting in a net reduction of $2,900,947. The FY 2016/17 budget includes a
3 percent escalation, CAS costs, and cost for purchasing and maintaining the maintenance
trucks. The amount related to CAS costs has been transferred to the FSP expenses budget;
therefore, a budget adjustment is not required.
Financial Information
In Fiscal Year Budget: Yes
N/A Year: FY 2016/17
FY 2017/18+ Amount: ($218,544)
($2,682,403)
Source of Funds: Toll Bond Operations and Maintenance
Funds and Toll Revenues Budget Adjustment: No
N/A
GL/Project Accounting No.: 009199 73305 00000 0000 591 31 73302
Fiscal Procedures Approved: Date: 10/17/2016
Attachment: ORCOA Amendment No. 13-31-105-01
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17336.02100\29000227.4
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924805.1
AMENDMENT NO. 1
OCTA AGREEMENT NO. C-3-1529
RCTC AGREEMENT NO. 13-31-105-01
AMONG
ORANGE COUNTY TRANSPORTATION AUTHORITY,
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AND
COFIROUTE USA, LLC.
THIS AMENDMENT NO. 1 TO AGREEMENT is entered into this _______ day of
______________, 2016, (the “Entered Into Date”) by and among the Orange County
Transportation Authority, a public corporation of the state of California (the “AUTHORITY”);
the Riverside County Transportation Commission, a public agency (the “COMMISSION”); and
Cofiroute USA, LLC., a Delaware limited liability company (“CONTRACTOR”). The
AUTHORITY, the COMMISSION and CONTRACTOR are sometimes individually referred to
herein as a “Party” and collectively as the “Parties.” The AUTHORITY and the COMMISSION
are sometimes individually referred to herein as an “Agency” and collectively as the “Agencies.”
WITNESSETH:
WHEREAS, the Parties have entered into that certain three party operating agreement,
OCTA Agreement No. C-3-1529, RCTC Agreement No. 13-31-105-00, dated as of May 24, 2013
(the “Operating Agreement”), pursuant to which AUTHORITY and COMMISSION engaged
CONTRACTOR to provide management and operational services for the 91 Express Lanes, with
the mutual intent of the Agencies of operating said lanes as a single, seamless toll facility from
the customer’s perspective, as further detailed herein.
WHEREAS, the Parties desire to amend the terms of the Operating Agreement in order to
eliminate Customer Assistance Specialist (“CAS”) from the Joint Statement of Work, and move
these services to the AUTHORITY Statement of Work, as CONTRACTOR will not provide these
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17336.02100\29000227.4
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924805.1
services for COMMISSION.
WHEREAS, the COMMISSION desires to amend the COMMISSION Statement of
Work to remove the pre-operations costs related to CAS.
WHEREAS, the COMMISSION desires to amend the COMMISSION Statement of
Work to include terms regarding certain maintenance vehicles to be acquired by CONTRACTOR,
and to provide an allowance for equipment and vehicle rentals.
NOW, THEREFORE, for valuable and adequate consideration, receipt of which is
hereby acknowledged, it is mutually understood and agreed by the AUTHORITY, the
COMMISSION and CONTRACTOR as follows:
1. Capitalized terms not otherwise defined in this Amendment No. 1 shall have the
meanings ascribed to such terms in the Operating Agreement.
2. The Joint Statement of Work contained in Exhibit “A” of the Operating Agreement is
hereby amended to revise or remove the provisions related to CAS, as set forth in Exhibit “A”
attached to this Amendment No. 1.
3. The AUTHORITY Statement of Work contained in Exhibit “B” of the Operating
Agreement is hereby amended to add the provisions related to CAS, as set forth in Exhibit “B”
attached to this Amendment No. 1.
4. The COMMISSION Statement of Work contained in Exhibit “C” of the Operating
Agreement is hereby amended to add the provisions related to maintenance vehicles, remove the
pre-operations costs related to CAS, and to make other changes as set forth in Exhibit “C”
attached to this Amendment No. 1.
5. Article 7(F) shall be amended, in its entirety, to read as follows:
The Monthly Lump Sum Price and the additional payments
described in Articles 7(B)(2)(a) and 7(C)(2)(b), except as may be
expressly set forth in the COMMISSION Statement of Work or the
AUTHORITY Statement of Work, shall be subject to an automatic annual
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increase in accordance with this Article 7(F). For the period commencing
July 1, 2016 through June 30, 2021, the automatic annual increase shall be
two percent (2%) per year.
6. Article 7(J)(1) shall be amended, in its entirety, to read as follows:
(1) AUTHORITY's and COMMISSION's respective maximum
cumulative payment obligation, hereunder, for the Joint Statement of
Work, for the period commencing on the Effective Date through June
30, 2021, shall not exceed Twenty Six Million, Four Hundred Fifty
Nine, Thousand, Three Hundred Twelve dollars ($26,459,312 ),
(excluding from the maximum cumulative payment obligation, an
amount equal to: (1) the Temporary Supplement Amount; (2) the
difference between the New Monthly Lump Sum Payment and the
Monthly Lump Sum Price, or (3) any Resumption Costs, as each may
be applicable) which shall include all amounts payable to
CONTRACTOR for its performance of the Joint Statement of Work,
and for all subcont racts, leases, materials and costs arising from, or due
to termination of, this Agreement.
7. Article 7(J)(2) shall be amended, in its entirety, to read as follows:
AUTHORITY's maximum cumulative payment obligation, hereunder, for
the AUTHORITY Statement of Work, for the period commencing on the
Effective Date through June 30, 2021, shall not exceed Four Million, One
Hundred Thirty Five Thousand, Two Hundred Four Dollars ($4,135,204),
which shall include all amounts payable to CONTRACTOR for its
performance of the AUTHORITY Statement of Work, and for all
subcontracts, leases, materials and costs arising from, or due to
termination of, this Agreement.
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8. Article 7(J)(3) shall be amended, in its entirety, to read as follows:
COMMISSION’s maximum cumulative payment obligation, hereunder,
for the COMMISSION Statement of Work, for the period commencing on
the Effective Date through June 30, 2021, shall not exceed One Million,
Six Hundred Thirty-Seven Thousand, Eight Hundred Seventy Four
Dollars ($1,637,874), which shall include all amounts payable to
CONTRACTOR for its performance of the COMMISSION Statement of
Work, and for all subcontracts, leases, materials and costs arising from, or
due to termination of, this Agreement.
9. Article 7, Payment, subsection K is amended in its entirety to read as follows:
K. The amount of the Monthly Lump Sum Price payable by
AUTHORITY and COMMISSION, respectively, during the annual periods
following the Actual Opening Date shall be determined by adjusting the
baseline sums set forth below in accordance with Article 7(F) from the
Entered Into Date. The baseline sum for purposes of calculating the amount
of the Monthly Lump Sum Price for the first six (6) months following the
Actual Opening Date shall be Four Hundred Thirty-Seven Thousand, Fifty
Dollars and Thirty-Four Cents ($437,050). The baseline sum for purposes
of calculating the Monthly Lump Sum Price for the period commencing six
(6) months following the Actual Opening Date through June 30, 2021 shall
be Four Hundred Eighteen Thousand, Five Hundred Eighty-Four Dollars
and Nine Cents ($418,584.09).
10. COUNTERPARTS
This instrument may be executed in two or more counterparts, each of which shall be
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deemed an original, but all of which together shall constitute one and the same instrument.
11. GOVERNING LAW; VENUE
This Amendment No. 1 shall be governed by and construed in accordance with the laws of
the State of California without regard to conflict of law principles. The parties agree that
exclusive original jurisdiction and venue for any legal action or proceeding, at law or in equity,
that is permitted to be brought by a party in court arising out of this Agreement shall be in the
Superior Court for the County of Riverside, California or the Superior Court for the County or
Orange, California.
12. CONTINUING EFFECT.
Except as amended by this Amendment No. 1, all provisions of the Operating 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 No. 1.
[Signatures on following page]
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SIGNATURE PAGE TO
AMENDMENT NO. 1 TO
OCTA AGREEMENT NO. C-3-1529
RCTC AGREEMENT NO. 13-31-105-01
AMONG
ORANGE COUNTY TRANSPORTATION AUTHORITY,
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AND
COFIROUTE USA, LLC.
RIVERSIDE COUNTY ORANGE COUNTY
TRANSPORTATION COMMISSION TRANSPORTATION
AUTHORITY
By: By: _______________________
Its: ________________________ Its: _______________________
APPROVED AS TO FORM: APPROVED AS TO FORM:
BEST BEST & KRIEGER LLP
By: ____________________________ By: _______________________
Counsel to the Riverside General Counsel to Orange
County Transportation Commission County Transportation
Authority
COFIROUTE USA, LLC
By:
Gary L. Hausdorfer
Chairman and Chief Executive Officer
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EXHIBIT A
AMENDMENTS TO JOINT STATEMENT OF WORK
Exhibit A of the Operating Agreement shall be amended as described herein.
1. Delete Section 1-4 OPERATIONS REQUIREMENTS, subsection C-5:
C-5 Customer Assistance Specialist (CAS)
o Uniforms
o Transportation and Vehicles
2. Section A-2, GENERAL BUSINESS ADMINISTRATION, subsection A-2.3 Policies and
Procedures, shall be amended to remove Customer Assistance Specialist from the list of
functional areas for which policies and procedures are identified.
3. Section C-1, STAFFING, subsection C-1.2 Required Key Personnel, shall be amended
to provide CAS manager for the OCTA Portion only, and to provide coordination with
COMMISSION provided Freeway Services Patrol (FSP) for the RCTC Portion. As revised,
subsection C-1.2 shall read as follows:
An Operations Manager — responsible for maintenance of on-road equipment and
cameras, maintenance of generators and UPS, and management of 24/7 TOC for
both portions of the 91 Express Lanes facility, CAS for OCTA Portion only, and
coordination with COMMISSION FSP for RCTC Portion. Responsibilities include
managing and scheduling Caltrans maintenance and CHP patrols and other
contracted road repair and maintenance work as may be necessary from time to
time for each AGENCY.
4. Section C-3, ROUTINE OPERATIONS AND MAINTENANCE, subsection C-3.5
Accident/Incident Reporting, shall be amended to provide CAS manager for the OCTA Portion
only, and to provide coordination with COMMISSION provided Freeway Services Patrol (FSP)
for the RCTC Portion. As revised, subsection C-3.5 shall read as follows:
The CONTRACTOR shall report to the AGENCIES all incidents involving fire, robber,
accidents, or similar events in a timely manner per SOP and documented by an
Accident/Incident (A/I) report as necessary.
Reports from customers and other sources concerning accidents and/or incidents shall be
verified and reported as required by the SOP to allow for rapid and efficient dispatch as
required. The CONTRACTOR shall maintain a complete record and log of all accidents
and incidents and shall notify the AGENCIES in accordance with the approved SOP. The
CONTRACTOR shall also maintain a record of motorist assists (number, type of assist,
and time of day) which shall be summarized and included in the operating reports to the
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AGENCIES. FSP shall provide the CONTRACTOR the record of motorist assist
identified above for RCTC portion only.
5. Add the following to Section C-3 ROUTINE OPERATION AND MAINTENANCE
OVERVIEW, subsection C-3.8 Uniforms
C-3.8 Uniforms-ETTM employees
The CONTRACTOR shall provide uniforms to all CONTRACTOR employees who, as a
regular part of their job, come in contact with the AGENCIES' customers or the general
public. ETTM personnel wear uniforms when working on the road; other contract staff
must dress in a professional manner. The CONTRACTOR shall provide an adequate
number of uniforms, along with a professional cleaning service, to assure that each
CONTRACTOR employee has a clean uniform. Uniforms shall be conformed to identify
both OCTA and RCTC 91 Express Lanes operations.
6. Delete the following portion of Section C-4 TRAFFIC OPERATIONS, subsection C-4.1,
Emergency Services Coordination, related to the operation of CAS:
A CAS will be operated by the CONTRACTOR as directed by the AGENCIES.
7. Delete Section C-5 CUSTOMER ASSISTANCE SPECIALIST (CAS):
C-5.1 Uniforms-
The CONTRACTOR shall provide uniforms to all personnel who, as a regular part
of their job, come in contact with the AGENCIES' customers or the general public.
Presently, Customer Assistance Specialist (CAS) members and ETTM personnel
wear uniforms when working on the road; other contract staff dresses in a
professional manner. The CONTRACTOR shall provide an adequate number of
uniforms, along with a professional cleaning service, to assure that each employee
has a clean uniform. Uniforms shall be conformed to identify both OCTA and
RCTC 91 Express Lanes operations.
C-5.2 Transportation and Vehicles,
The CONTRACTOR shall operate a customer service patrol/motorist service
program which is provided to promote safety and rapid travel through the Express
Lanes. This service utilizes uniformed attendants who are dispatched from the toll
plaza to patrol the lanes for disabled vehicles, road hazards, accidents, and other
incidents which affect the safety and efficiency of the toll lanes. Attendants may
tow vehicles, change tires, provide small quantities of gasoline, remove debris and
help support in lane activities by the CHP and/or Caltrans when requested. The
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service currently operates with 5 to 6 patrol attendant positions during the
following hours:
Monday-Friday — 5:00 a.m. to 9:00 p.m.
Saturday — 8:00 a.m. to 7 p.m.
Sunday — 8:00 a.m. to 9:00 p.m.
The CAS responds to the following events on a regular basis.
Assist with a traffic incident
Assist with a traffic break
Assist with vehicle battery failures
Assist with clearing of channelizers or buffer debris
Flat tire assistance (change or inflate)
Gasoline/Diesel fuel assistance
Assist California Highway Patrol
Provide information
Assist with vehicle mechanical failure
Assist with overheated vehicle
8. Section C-5.2 Transportation and Vehicles, shall be amended in its entirety to read as follows:
The CONTRACTOR shall operate all AGENCY provided vehicles necessary to perform the
Work in conformance with the Agreement. The AGENCIES will provide vehicles to support
maintenance services. A procedure shall be implemented to allow for operation of the vehicles in
a clean and safe manner. The CONTRACTOR shall be responsible for the maintenance of the
vehicles. The CONTRACTOR shall utilize AGENCY provided vehicles as necessary to carry out
all aspects of the work.
9. Amend ORCOA Exhibit A, Attachment 1, to remove the performance requirements related to
CAS. As amended, Attachment 1 shall read as follows:
ORCOA Exhibit A
Attachment 1 — Performance Measures
PERFORMANCE & MEASUREMENTS FOR TRAFFIC OPERATIONS
1. Initial & Secondary Review Performance
This performance standard affects Traffic Operations Center (TOC) employees.
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A. Measure=All initial & secondary reviews that are forwarded by RAMS to the TOC/Roadside
Operations departments will be comple ted and to the processing
department within 15 days of receipt by the TOC/Roadside Operations. Measurement Source:
Productivity Report from CONTRACTOR Intranet
B. Initial and Secondary Review Errors
This measurement refers to the percentage of plate misread e rrors that occur.
Measure= the monthly performance standard for plate misread errors is established at
misreads = or less than .4% of the number of plates read in a given month.
Measurement Source: Plate Misread Error Report from CONTRACTOR Intranet
Measurement Notes: The plate read error rate performance standard will be waived if either one or both
of the following occur:
If the back office system (RAMS) or the in-lane system fails to perform as expected, creating a
backlog of images for CONTRACTOR staff to review, the performance measure will be waived
for the period of time it reasonably takes CONTRACTOR staff to review the backlog.
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EXHIBIT B
AUTHORITY STATEMENT OF WORK
Exhibit B of the Operating Agreement shall be amended to add the following Customer
Assistance Specialist (CAS) related provisions to the AUTHORITY Statement of Work.
1. OPERATIONS REQUIREMENTS:
CONTRACTOR shall perform and provide as applicable:
Customer Assistance Specialist (CAS)
o Uniforms
o Transportation and Vehicles
2. GENERAL BUSINESS ADMINISTRATION, Policies and Procedures shall be provided for
Customer Assistance Specialist.
3. TRAFFIC OPERATIONS, Emergency Services Coordination: A CAS will be operated by
the CONTRACTOR as directed by the AGENCY.
4. CUSTOMER ASSISTANCE SPECIALIST (CAS)
a. Uniforms.
The CONTRACTOR shall provide uniforms to all Customer Assistance Specialist (CAS)
members. The CONTRACTOR shall provide an adequate number of uniforms, along with a
professional cleaning service, to assure that each CAS employee has a clean uniform. Uniforms
shall be conformed to identify AUTHORITY 91 Express Lanes operations.
b. Transportation and Vehicles.
The CONTRACTOR shall operate all AGENCY provided vehicles necessary to perform the
Work in conformance with the Agreement. The AGENCY will provide vehicles to support
motorist/roadside service. A procedure shall be implemented to allow for operation of the
vehicles in a clean and safe manner. The CONTRACTOR shall be responsible for the
maintenance of the vehicles. The CONTRACTOR shall utilize AGENCY provided vehicles as
necessary to carry out all aspects of the work.
The CONTRACTOR shall operate a customer service patrol/motorist service program which is
provided to promote safety and rapid travel through the Express Lanes. This service utilizes
uniformed attendants who are dispatched from the toll plaza to patrol the lanes for disabled
vehicles, road hazards, accidents, and other incidents which affect the safety and efficiency of the
toll lanes. Attendants may tow vehicles, change tires, provide small quantities of gasoline, remove
debris and help support in lane activities by the CHP and/or Caltrans when requested. The service
currently operates with 5 to 6 patrol attendant positions during the following hours:
Monday-Friday — 5:00 a.m. to 9:00 p.m.
Saturday — 8:00 a.m. to 7 p.m.
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Sunday — 8:00 a.m. to 9:00 p.m.
The CAS responds to the following events on a regular basis.
Assist with a traffic incident
Assist with a traffic break
Assist with vehicle battery failures
Assist with clearing of channelizers or buffer debris
Flat tire assistance (change or inflate)
Gasoline/Diesel fuel assistance
Assist California Highway Patrol
Provide information
Assist with vehicle mechanical failure
Assist with overheated vehicle
5. PERFORMANCE & MEASUREMENTS FOR CAS
Performance response time refers to the time it takes CAS Tow Truck drivers to respond to incidents on the
91 Express Lanes ("Lanes") after notification by TOC and/or California Highway Patrol (CHP). Response
times are dependent upon prompt notification to the CAS Tow Truck Driver of the incident by CHP and/or
TOC and severity of traffic congestion at the time of the incident.
Measure= The average monthly performance standard for response time by CAS Tow Truck drivers to
incidents on the Lanes is established at 20 minutes per call. Measurement Source: Response Time Report
from CONTRACTOR Intranet
6. The CAS Services under this AUTHORITY Statement of Work shall be provided for the
following Monthly Lump Sum Price: Thirty-Three Thousand, Seven Hundred Sixty-Six Dollars
and Twenty-Six Cents ($33,766.26) and subject to Article 7(F), which was amended in this
amendment.
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EXHIBIT C
COMMISSION STATEMENT OF WORK
1. TERMS REGARDING MAINTENANCE VEHICLES
a. CONTRACTOR shall purchase three (3) maintenance trucks (the “Vehicles”), to be
equipped with accessories to be used by CONTRACTOR in connection with performance of the
Services under this Agreement, at a price agreed upon in advance by the COMMISSION.
CONTRACTOR shall provide the COMMISSION with a bill of materials to be installed on the
Vehicles as accessories to maintain safe operations of the Vehicles, subject to approval by the
COMMISSION. Accessories and installation of such accessories shall be CONTRACTOR’s
responsibility. CONTRACTOR shall obtain three (3) quotes for accessories and installation.
CONTRACTOR’s labor may be reimbursed at an Operations Manager level not to exceed 24
hours. CONTRACTOR shall be reimbursed for the total amount of the invoiced costs for the
purchase of the Vehicles and for the accessories and installation thereof, provided such costs are
in accordance with the price/cost agreed upon in advance by the COMMISSION, and provided
that such costs do not exceed the amount identified in the table below, without written approval of
the COMMISSION’s Executive Director.
b. Following purchase of the Vehicles, CONTRACTOR shall provide a written notice to
COMMISSION identifying the make, model and year of each of the Vehicles. Said notice shall
be incorporated into this Agreement by reference. Title to the Vehicles shall be held by
CONTRACTOR during the term of this Agreement, except as otherwise provided below, and will
be used by CONTRACTOR for maintenance purposes in accordance with the terms of this
Agreement. The CONTRACTOR shall maintain the Vehicles in accordance with this Agreement
and shall provide the COMMISSION the maintenance logs upon request.
c. The COMMISSION has determined that it is in its best interests and the best use of funds
to have CONTRACTOR purchase the Vehicles as specified herein. In addition, the
COMMISSION has determined that it is in its best interest of COMMISSION for
CONTRACTOR to hold title to the Vehicles in the name of CONTRACTOR in order to reduce
the cost that could result from operation, maintenance and repair of the Vehicles, as well as the
cost of Vehicle registration and insurance.
d. Title in the Vehicles shall be conveyed by the CONTRACTOR to the COMMISSION
upon expiration or termination of this Agreement pursuant to the terms and conditions of this
Agreement. In addition, the COMMISSION shall have the right to demand that title in the
Vehicles be conveyed to the COMMISSION at any time prior to expiration or termination of this
Agreement. Conveyance of title in the Vehicles to the COMMISSION pursuant to this
Exhibit “C” shall be for consideration in the total amount of One Dollar ($1.00). The parties
agree to cooperate with each other in the execution of any documentation required to convey title
in the Vehicles to the COMMISSION.
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2. EQUIPMENT AND VEHICLE RENTAL. CONTRACTOR shall be entitled to
rent equipment and vehicles, on an as needed basis, subject to COMMISSION prior approval, for
a not to exceed total annual sum of Twenty Thousand Dollars ($20,000), which annual sum shall
be subject to escalation pursuant to Article 7(F) of the Operating Agreement, as amended herein .
Reimbursement for equipment and vehicle rental at actual rental cost may be made pursuant to
this Exhibit “C”. Leased vehicles shall be used in accordance with the terms of the Agreement,
and this Exhibit “C”.
3. AMENDMENT TO EXHIBIT “C” OF OPERATING AGREEMENT. Exhibit
“C” of the Operating Agreement shall be amended to remove the following items from the Work
Description chart:
Item 7, Training for a full-time Customer Assistance Specialist (CAS)
Item 8, Training for four (4) full-time CAS Drivers
4. AMENDMENT TO PRE-OPERATIONS SERVICES COSTS. The total
compensation for Pre-Operations Services, as set forth in Exhibit “C” of the Operating
Agreement, shall be increased by One Hundred Forty-Five Thousand, Eight Hundred Nineteen
Dollars and Ninety-Six Cents ($145,819.96). The new total compensation amount for Pre-
Operations Services shall not exceed One Million, Two Hundred Twenty-Four Thousand, Four
Hundred Thirty-Six Dollars ($1,224,436).
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AGENDA ITEM 7
Agenda Item 7
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: October 24, 2016
TO: Western Riverside County Programs and Projects Committee
FROM: Shirley Medina, Planning and Programming Director
THROUGH: John Standiford, Deputy Executive Director
SUBJECT: Transportation Uniform Mitigation Fee Regional Arterial Program – Project
Delivery Update
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Receive and file a status report on the Transportation Uniform Mitigation Fee (TUMF)
Regional Arterial program; and
2) Forward to the Commission for final action.
BACKGROUND INFORMATION:
Per the 2008 TUMF restated Memorandum of Understanding (MOU) between the Commission
and the Western Riverside Council of Governments (WRCOG) and the WRCOG Administrative
Plan, the Commission receives 46.39 percent of TUMF revenues. Of the Commission’s share, 50
percent is allocated to the TUMF Regional Arterial program with the remaining 50 percent
allocated to projects designated under the Community and Environmental Transportation
Acceptability Program (CETAP) corridors. These corridors include Riverside-Orange County,
Riverside-San Bernardino County, North-South, and East-West corridors.
In 2004, the Commission approved a total of 24 projects for Western Riverside County TUMF
Regional Arterial program in addition to funding allocated to the Commission’s State Route 79
realignment project for a total of 25 projects. Of the 24 local agency regional arterial projects,
two were substituted, and four projects were suspended. As a result, 20 local agency projects
remain in the program.
Total TUMF revenues and expenditures since inception reported by the Commission through
June 30, 2016, are as follows:
17
Agenda Item 7
CETAP Regional Arterials Total
Revenues, including interest $ 166,951,517 $ 166,705,596 $ 333,657,113
Expenditures (127,503,132) (135,537,300) (263,040,432)
Balance 39,448,385 31,168,296 70,616,681
Outstanding Commitments (39,448,385) (16,361,821) (55,810,206)
Uncommitted Balance $ 0 $ 14,806,475 $ 14,806,475
The majority of the regional arterial projects are under agreement. These projects have also
either completed construction or are under construction, attached. The Commission approved
one developer credit reimbursement agreement with the city of Corona in the amount of
$3,051,636. The Commission approved an annual 10 percent set aside of budgeted Regional
Arterial funds for this developer credit reimbursement and to date the developer has been
reimbursed $2.5 million.
There are three projects remaining to be programmed for the construction phase as follows:
Interstate 15/Railroad Canyon Interchange
Interstate 15/Limonite Avenue Interchange
Van Buren Boulevard, Washington Street to Wood Road
Preliminary project estimates for the above projects would require $80 million or more to fully
fund construction. FY 2016/17 TUMF revenue projections total $18.5 million, with $9.25 million
for regional arterials and $9.25 million for CETAP. Based on current revenue estimates, it could
take several years to accrue enough funds to complete funding for the above three projects.
Therefore, staff does not anticipate including additional projects into the Regional Arterial
program until such time these projects are fully funded.
Attachment: TUMF Project Delivery Status
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TUMF Regional Arterial Program - Current Project Delivery Status (Including Original 24 Projects Approved Sept 2004)
1 Corona Green River, Dominguez Ranch Rd - SR 91 Funding Complete X Funded phase.
2 Corona Foothill Parkway Extension Funding Complete X
3 Corona I-15/El Cerrito Rd Funding Complete X
4 Riverside Co.I-15/Limonite IC *Needs Cons Funds X
Substituted project that replaced I-15/Schleisman IC in
2012.
Riverside Co.I-15/Schleisman IC Substituted Environmental issues. Replaced with Limonite IC.
Riverside Co.I-15/Clinton Keith Rd Funding Complete X
Project funded & completed with non TUMF funding
sources.
-Riverside Co.New IC at Eastern Bypass Suspended X
In 2009, Commission approved suspension of the project
and transferred funding balance to SR79.
5 Riverside Co.Bundy/Scott Road improvements Funding Complete X PA&ED funded phase.
6 Riverside Co.SR79 - widen Thompson-Domenigoni Funding Complete X
7 Riverside Co.Van Buren Bridge, Clay - SAR Funding Complete X
8 Riverside Co.Van Buren, Washington -Wood Needs R/W, Cons X
-Riverside Co.Eastern Bypass, Auld - I-15 Suspended
In 2009, Commission approved suspension of project and
transferred funding balance to SR 79.
-Riverside Co.Potrero Blvd, San Tim-Oak Valley-SR79 Suspended No agreement for project. Postponed.
9 Riverside SR91/Van Buren IC Funding Complete X
10 Riverside Van Buren, Andrew - Garfield Funding Complete X
11 Riverside Van Buren, SAR - Jackson Funding Complete X
12 San Jacinto Ramona Expwy - Sanderson - WCL Funding Complete X
-San Jacinto Ramona Expwy - Seventh - Cedar Substituted Environmental issues. Replaced with Sanderson-Eagle
13 San Jacinto Ramona Expwy Ext., Sanderson - Eagle *Funding Complete X In 2012, Commission approved as substitution.
14 Temecula I-15/French Valley Pkwy Funding Complete X Project phased. STIP funds programmed for Cons.
15 Temecula I-15/SR79 IC Funding Complete X
16 Temecula Western Bypass Study Funding Complete X Study complete.
17 Moreno Valley Perris Blvd, PVSD Lateral B - Cactus Funding Complete X
18 Moreno Valley Perris Blvd, Ironwood - Manzanita Funding Complete X
19 Lake Elsinore I-15 Railroad Canyon IC Needs Cons funds X Project currently finishing PA&ED
20 Perris Perris Blvd, Ramona Expwy - PVSD Lat. B Funding Complete X
Bolded projects require future construction programming.
*Substitution Projects
Project Status
Agency Project CommentNo. #Programming Status
Under
Cons
Cons Comp/
Invoicing
Cons Complete/
Closed OutPre-Cons
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AGENDA ITEM 8
Agenda Item 8
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: October 24, 2016
TO: Western Riverside County Programs and Projects Committee
FROM: Alex Menor, Capital Projects Manager
THROUGH: Marlin Feenstra, Capital Delivery Director
SUBJECT: Agreement for Final Design and Right of Way Acquisition for the Construction
of the Interstate 215/Placentia Avenue Interchange Improvement Project
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Award Agreement No. 16-31-066-00 to T.Y. Lin International (T.Y. Lin) to perform final
engineering services and prepare plans, specifications, and cost estimate (PS&E) for the
construction of the Interstate 215 /Placentia Avenue interchange improvements project
(Project) in the amount of $3,412,700, plus a contingency amount of $341,300 for
potential changes in scope, for a total amount not to exceed $3,754,000;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement on behalf of the Commission;
3) Authorize the Executive Director or designee to approve contingency work as may be
required for the Project;
4) Approve Agreement No. 17-31-039-00 with Caltrans for the final design and right of way
(ROW) acquisition of the Project;
5) Authorize the Executive Director, pursuant to legal counsel review, to execute the
agreement and future non-funding related amendments to this agreement;
6) Authorize the Executive Director, pursuant to legal counsel review, to execute utility
agreements required for the Project in an amount not to exceed $1.2 million;
7) Authorize the Executive Director, pursuant to legal counsel review, to acquire required
parcels and mitigation property for the Mid County Parkway (MCP) project in accordance
with the Commission’s ROW policies and procedures and subject to available funding; and
8) Forward to the Commission for final action.
BACKGROUND INFORMATION:
The Commission has studied opportunities to improve mobility in Western Riverside County since
1998. The Community and Environmental Transportation Acceptability Process (CETAP) is one of
the elements of the Riverside County Integrated Project (RCIP), initiated by Riverside County
(County) in 1998. The other two elements of the RCIP are the Riverside County General Plan and
the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP). The primary
20
Agenda Item 8
purpose of CETAP was to determine where to locate possible major new transportation facilities
to serve the current and future transportation needs of Western Riverside County whil e
preserving critical habitat. CETAP represented a balanced approach to the provision of important
transportation improvements, while limiting the impacts on communities and the environment.
Major transportation facilities invariably have impacts, but th e benefits of new transportation
facilities to Western Riverside County are substantial and the actions are critical to sustaining
mobility for the County’s future. The CETAP corridors are part of the overall system of
transportation improvements and the corridors do not stand alone, however these corridors are
an integral part of the County’s general plan and the MSHCP. As part of the CETAP process, the
Commission approved moving forward with project level environmental studies for the MCP
project on December 13, 2003.
At its April 2015 meeting, the Commission as the lead agency under the California Environmental
Quality Act (CEQA) certified the final environmental impact report, adopted findings pursuant to
CEQA, adopted a mitigation monitoring and reporting program, adopted a statement of
overriding considerations, and approved the MCP project. As the lead agency under the National
Environmental Policy Act, the Federal Highway Administration approved the final environmental
impact statement on April 15, 2015, and issued a record of decision for the MCP project in August
2015.
At its January 2016 meeting, the Commission authorized staff to proceed with design and ROW
acquisition for the Project as the first construction contract for the MCP project notwithstanding
the current legal challenges to the MCP project.
At its March 2016 meeting, the Commission approved an agreement with Overland, Pacific and
Cutler, Inc. (OPC) to provide ROW support services for the MCP project.
DISCUSSION:
The first project related to the MCP is the construction of a new interchange at I -215 and
Placentia Avenue in the city of Perris.
Procurement Process for Final Design
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 necessary
for the satisfactory performance of the services required. Therefore, staff used the qualification
method of selection for the procurement of PS&E services for the Project. Evaluation criteria
included elements such as qualifications of firm, staffing and project organization, project
understanding and approach, and the ability to respond to the requirements set forth under the
terms of a request for qualifications (RFQ).
21
Agenda Item 8
RFQ No. 16-31-066-00 for preparation of plans, specifications, and estimates for the Project was
released by staff on June 30, 2016. A public notice was advertised in the Press Enterprise, and
the RFQ was posted on the Commission’s Planet Bids website, which is accessible through the
Commission’s website. Through Planet Bids, 92 firms downloaded the RFQ; 23 of these firms are
located in Riverside County. A pre-submittal meeting was held on July 14 and attended by
17 firms. Staff responded to all questions submitted by potential proposers prior to the July 28
clarification deadline date. Six firms – AECOM; Jacobs Engineering Group, Inc. (Jacobs); Michael
Baker International, Inc. (Michael Baker); Moffatt & Nichol; Parsons Transportation Group, Inc.;
and T.Y. Lin; – submitted responsive and responsible statements of qualifications prior to the
2:00 p.m. submittal deadline on August 4. Based on the evaluation criteria set forth in the RFQ,
the firms were evaluated and scored by an evaluation com mittee comprised of Commission,
Bechtel, city of Perris, 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 shortlisted and invited four firms (AECOM, Jacobs,
Michael Baker, and T.Y. Lin) to the interview phase of the evaluation and selection process.
Interviews were conducted on August 24.
The evaluation committee conducted a subsequent evaluation of each firm, based on both
written and interview components presented to the evaluation committe e by each proposer.
Accordingly, the evaluation committee recommends contract award to T.Y. Lin to provide PS&E
services for the Project, as it earned the highest total evaluation score.
Subsequently, staff negotiated the scope of work (including the appropriate level of effort, labor
categories/mix, etc.), cost, and schedule proposal received from T.Y. Lin for the Project services
and established a fair and reasonable price. The proposed cost, including contingency, is
$3,754,000. Staff anticipates advertising for the construction contract by early 2019.
Other Agreements
A cooperative agreement with Caltrans will be needed to identify the Commission and Caltrans
responsibilities for acquisition of right of way and for final design, or preparation of plans,
specifications, and estimate for the Project.
In addition, the Project will require separate agreements with impacted utility companies, i.e.
gas, water, sewer, telephone, cable, and electric at an estimated cost of $1.2 million.
It is anticipated approximately 438 assessor parcels will be impacted by the MCP project,
including the first segment related to the Project. The properties are comprised of residential,
commercial, industrial, and agricultural uses and are almost twice as many as the SR-91 Corridor
Improvement Project. Current estimated right of way acquisition costs for the MCP are
$237 million; costs for the Project represent approximately 3.3 percent of the total cost. OPC will
provide right of way support services for the MCP project. Based on Commission feedback
related to approval processes for previous Commission projects requiring significant right of way
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Agenda Item 8
acquisition, staff has considered a proper balance of timing and legal requirements. Therefore,
staff recommends authorization for the Executive Director, pursuant to legal counsel review, to
acquire required parcels and mitigation property for the MCP project in accordance with the
Commission’s right of way policies and procedures and subject to available funding.
Recommendation
Staff recommends award of Agreement No. 16-31-066-00 to T.Y. Lin to perform PS&E services
for the Project, based on the final negotiated project scope and cost of $3,412,700, plus the
contingency amount of $341,300, for a total amount not to exceed $3,754,000. Staff also
recommends approval of Agreement No. 17-31-039-00 with Caltrans to define each agency’s
responsibilities for the acquisition of right of way and preparation of PS&E. Additionally, staff
recommends authorization for the Executive Director to approve utility agreements for the
Project and to acquire required parcels and mitigation property for the MCP project.
There are sufficient funds in the FY 2016/17 budget for the PS&E services, utility relocations, and
right of way acquisitions, and a budget amendment is not required. Subsequent years’ final
design, utility relocation, and right of way acquisition costs will be budgeted, subject to available
funding.
Financial Information
In Fiscal Year Budget: Yes
N/A Year: FY 2016/17
FY 2017/18+ Amount: $ 7,250,000
$234,704,000
Source of Funds: 2009 Measure A Western County New
Corridors Budget Adjustment: No
N/A
GL/Project
Accounting No.:
612302 81102 00000 0000 261 31 81102 $3,754,000 (final design)
612302 81402 00000 0000 261 31 81401 $1,200,000 (utilities relocation)
612302 81401 00000 0000 261 31 81401 $237,000,000 (ROW acquisition)
Fiscal Procedures
Approved: Date: 10/18/2016
Attachments:
1) Agreement No. 16-31-066-00 with T.Y. Lin
2) Cooperative Agreement No. 17-31-039-00 with Caltrans
23
AGREEMENT NO. 16-31-066-00
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT FOR PREPARATION OF PLANS, SPECIFICATIONS AND
ESTIMATES (PS&E)
WITH T.Y. LIN INTERNATIONAL
1. PARTIES AND DATE.
This Agreement is made and entered into this day of , 2016,
by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co-
mmission") and T.Y. LIN ("Consultant"), a [___LEGAL STATUS OF CONSULTANT e.g.,
CORPORATION___].
2. RECITALS.
2.1 Consultant desires to perform and assume responsibility for the
provision of certain professional consulting services required by Commission on the terms
and conditions set forth in this Agreement. Consultant represents that it is a professional
consultant, experienced in providing the preparation of plans, specifications, and
estimates to public clients, is licensed in the State of California, and is familiar with the
plans of Commission.
2.2 Commission desires to engage Consultant to render certain
consulting services for the Interstate 215/Placentia Avenue Interchange Improvements
Project ("Project") as set forth herein.
3. TERMS.
3.1 General Scope of Services. Consultant promises and agrees to
furnish to Commission all labor materials, tools, equipment, services, and incidental and
customary work necessary to fully and adequately provide professional consulting
services and advice on various issues affecting the decisions of Commission regarding
the Project and on other programs and matters affecting Commission, hereinafter referred
to as "Services". The Services are more particularly described in Exhibit "A" attached
hereto and incorporated herein by reference. All Services shall be subject to, and
performed in accordance with, this Agreement, the exhibits attached hereto and
incorporated herein by reference, and all applicable local, state, and federal laws, rules
and regulations.
3.2 Term. The term of this Agreement shall be from the date first
specified above to ________________, unless earlier terminated as provided herein.
ATTACHMENT 1
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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 under this Agreement.
Consultant shall not accept direction from any person other than Commission's
Representative or his or her designee.
25
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.
26
3.12 Insurance.
3.12.1 Time for Compliance. Consultant shall not commence work
under this Agreement until it has provided evidence satisfactory to the Commission that
it has secured all insurance required under this section, in a form and with insurance
companies acceptable to the Commission. In addition, Consultant shall not allow any
subcontractor to commence work on any subcontract until it has secured all insurance
required under this section.
3.12.2 Minimum Requirements. Consultant shall, at its expense,
procure and maintain for the duration of the Agreement insurance against claims for
injuries to persons or damages to property which may arise from or in connection with the
performance of the Agreement by the Consultant, its agents, representatives, employees
or subcontractors. Consultant shall also require all of its subcontractors to procure and
maintain the same insurance for the duration of the Agreement. Such insurance shall
meet at least the following minimum levels of coverage:
(A) Minimum Scope of Insurance. Coverage shall be at
least as broad as the latest version of the following: (1) General Liability: Insurance
Services Office Commercial General Liability coverage (occurrence form CG 0001 or
exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto
Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’
Compensation and Employer’s Liability: Workers’ Compensation insurance as required
by the State of California and Employer’s Liability Insurance.
(B) Minimum Limits of Insurance. Consultant shall
maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily
injury, personal injury and property damage. If Commercial General Liability Insurance
or other form with general aggregate limit is used, either the general aggregate limit shall
apply separately to this Agreement/location or the general aggregate limit shall be twice
the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily
injury and property damage; and (3) if Consultant has an employees, Workers’
Compensation and Employer’s Liability: Workers’ Compensation limits as required by the
Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000
per accident.
3.12.3 Professional Liability. 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.
27
3.12.4 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.
3.12.5 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.
(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.
28
(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.
29
(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:
3.12.6 Deductibles and Self-Insurance Retentions. Any deductibles
or self-insured retentions must be declared to and approved by the Commission. If the
Commission does not approve the deductibles or self-insured retentions as presented,
Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer
shall reduce or eliminate such deductibles or self-insured retentions as respects the
Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant
shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expenses.
3.12.7 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.
3.12.8 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
30
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.
3.12.9 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.
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
Three Million Four Hundred Twelve Thousand Seven Hundred Dollars ($3,412,700)
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.
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3.14.4 Extra Work. At any time during the term of this Agreement,
Commission may request that Consultant perform Extra Work. As used herein, "Extra
Work" means any work which is determined by Commission to be necessary for the
proper completion of the Project, but which the parties did not reasonably anticipate would
be necessary at the execution of this Agreement. Consultant shall not perform, nor be
compensated for, Extra Work without written authorization from Commission's Executive
Director.
3.15 Accounting Records. Consultant shall maintain complete and
accurate records with respect to all costs and expenses incurred and fees charged under
this Agreement. All such records shall be clearly identifiable. Consultant shall allow a
representative of Commission during normal business hours to examine, audit, and make
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:
32
CONSULTANT: COMMISSION:
T.Y. Lin International Riverside County
3633 East Inland Empire Blvd. Transportation Commission
Suite 900 4080 Lemon Street, 3rd Floor
Ontario, CA 91764 Riverside, CA 92501
Attn: Karen Chapman 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.
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
33
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 of
the use on the Project by Commission of the Documents & Data, including any method,
process, product, or concept specified or depicted.
34
3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be
necessary, appropriate or convenient to attain the purposes of this Agreement.
3.20 Attorney's Fees. If either party commences an action against the
other party, either legal, administrative or otherwise, arising out of or in connection with
this Agreement, the prevailing party in such litigation shall be entitled to have and recover
from the losing party reasonable attorney's fees and costs of such actions.
3.21 Indemnification. Consultant shall defend, indemnify and hold the
Commission, its directors, officials, officers, agents, consultants, employees and
volunteers free and harmless from any and all claims, demands, causes of action, costs,
expenses, liabilities, losses, damages or injuries, in law or in equity, to property or
persons, including wrongful death, in any manner arising out of or incident to any alleged
negligent acts, omissions or willful misconduct of the Consultant, its officials, officers,
employees, agents, consultants, and contractors arising out of or in connection with the
performance of the Services, the Project or this Agreement, including without limitation,
the payment of all consequential damages, attorneys fees and other related costs and
expenses. Consultant shall defend, at Consultant’s own cost, expense and risk, any and
all such aforesaid suits, actions or other legal proceedings of every kind that may be
brought or instituted against the Commission, its directors, officials, officers, agents,
consultants, employees and volunteers. Consultant shall pay and satisfy any judgment,
award or decree that may be rendered against the Commission or its directors, officials,
officers, agents, consultants, employees and volunteers, in any such suit, action or other
legal proceeding. Consultant shall reimburse the Commission and its directors, officials,
officers, agents, consultants, employees and volunteers, for any and all legal expenses
and costs, including reasonable attorney’s fees, incurred by each of them in connection
therewith or in enforcing the indemnity herein provided. Consultant’s obligation to
indemnity shall not be restricted to insurance proceeds, if any, received by the
Commission or its directors, officials, officers, agents, consultants, employees and
volunteers. Notwithstanding the foregoing, to the extent Consultant's Services are
subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent
required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to
the negligence, recklessness, or willful misconduct of the Consultant. This Section 3.21
shall survive any expiration or termination of this Agreement.
3.22 Entire Agreement. This Agreement contains the entire Agreement
of the parties with respect to the subject matter hereof, and supersedes all prior
negotiations, understandings or agreements. This Agreement may only be
supplemented, amended, or modified by a writing signed by both parties.
3.23 Governing Law. This Agreement shall be governed by the laws of
the State of California. Venue shall be in Riverside County.
3.24 Time of Essence. Time is of the essence for each and every
provision of this Agreement.
35
3.25 Commission's Right to Employ Other Consultants. The Commission
reserves the right to employ other consultants in connection with this Project.
3.26 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties, and shall not be assigned by Consultant without
the prior written consent of Commission.
3.27 Prohibited Interests and Conflicts.
3.27.1 Solicitation. Consultant maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working
solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants
that it has not paid nor has it agreed to pay any company or person, other than a bona
fide employee working solely for Consultant, any fee, commission, percentage, brokerage
fee, gift or other consideration contingent upon or resulting from the award or making of
this Agreement. For breach or violation of this warranty, Commission shall have the right
to rescind this Agreement without liability.
3.27.2 Conflict of Interest. For the term of this Agreement, no
member, officer or employee of Commission, during the term of his or her service with
Commission, shall have any direct interest in this Agreement, or obtain any present or
anticipated material benefit arising therefrom.
3.27.3 Conflict of Employment. Employment by the Consultant of
personnel currently on the payroll of the Commission shall not be permitted in the
performance of this Agreement, even though such employment may occur outside of the
employee’s regular working hours or on weekends, holidays or vacation time. Further,
the employment by the Consultant of personnel who have been on the Commission
payroll within one year prior to the date of execution of this Agreement, where this
employment is caused by and or dependent upon the Consultant securing this or related
Agreements with the Commission, is prohibited.
3.27.4 Employment Adverse to the Commission. Consultant shall
notify the Commission, and shall obtain the Commission’s written consent, prior to
accepting work to assist with or participate in a third-party lawsuit or other legal or
administrative proceeding against the Commission during the term of this Agreement.
3.28 Equal Opportunity Employment. Consultant represents that it is an
equal opportunity employer and it shall not discriminate against any employee or
applicant for employment because of race, religion, color, national origin, ancestry, sex
or age. Such non-discrimination shall include, but not be limited to, all activities related
to initial employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff or termination. Consultant shall also comply with all relevant provisions
of Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or
other related Commission programs or guidelines currently in effect or hereinafter
enacted.
36
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
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
37
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 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.
38
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]
39
SIGNATURE PAGE
TO
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT FOR PREPARATION OF PLANS, SPECIFICATIONS AND
ESTIMATES (PS&E)
WITH T.Y. LIN INTERNATIONAL
IN WITNESS WHEREOF, this Agreement was executed on the date first written
above.
RIVERSIDE COUNTY T.Y. LIN
TRANSPORTATION COMMISSION INTERNATIONAL
By: _________________________ By: ____________________________
[INSERT NAME] Signature
Chair
__________________________
Name
[NOT NEEDED IF APPROVED BY COMMISSION]
__________________________
Title
By: ____________________________
Anne Mayer
Executive Director
Approved as to Form: Attest:
By: ____________________________ By: ________________________
Best Best & Krieger LLP Its: Secretary
General Counsel
1. Exhibit "A"- Scope of Services
2. Exhibit "B" - Schedule of Services
3. Exhibit "C" - Compensation
[ATTACHED BEHIND THIS PAGE]
40
41
AGREEMENT 08-1603
Project No. 0817000014
EA 0F321
08-RIV-215-29.06/30.01
PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 1 of 16
COOPERATIVE AGREEMENT
State Independent Quality Assurance
This AGREEMENT, effective on _______________________________, is between the State of
California, acting through its Department of Transportation, referred to as CALTRANS, and:
Riverside County Transportation Commission, a public corporation/entity, referred to
hereinafter as RCTC.
RECITALS
1.PARTNERS are authorized to enter into a cooperative agreement for improvements to the state
highway system (SHS) per the California Streets and Highways Code sections 114 and 130.
2.For the purpose of this AGREEMENT, construct new Placentia Avenue interchange in the
City of Perris on Interstate 215 will be referred to hereinafter as PROJECT. The project scope
of work is defined in the PROJECT initiation and approval documents (e.g. Project Study
Report, Permit Engineering Evaluation Report, or Project Report).
3.All responsibilities assigned in this AGREEMENT to complete the following PROJECT
COMPONENTS will be referred to hereinafter as OBLIGATIONS:
Plans, Specifications, and Estimate (PS&E)
Right of Way Support (R/W SUPPORT)
Right of Way Capital (R/W CAPITAL)
4.This AGREEMENT is separate from and does not modify or replace any other cooperative
agreement or memorandum of understanding between PARTNERS regarding the PROJECT.
5.The following work associated with this PROJECT has been completed or is in progress:
CALTRANS approved the Environmental Impact Report on April 16, 2015, under EA
0F320.
CALTRANS approved the Environmental Impact Statement on April 16, 2015 , under EA
0F320.
6.In this AGREEMENT capitalized words represent defined terms, initialisms, or acronyms.
Commented [HLE1]: Is this true
ATTACHMENT 2
42
AGREEMENT 08-1603
Project No. 0817000014
PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 2 of 16
7. PARTNERS hereby set forth the terms, covenants, and conditions of this AGREEMENT,
under which they will accomplish OBLIGATIONS.
RESPONSIBILITIES
Sponsorship
8. RCTC is the SPONSOR for the PROJECT COMPONENTS in this AGREEMENT.
Funding
9. Funding sources, funding amounts, and invoicing/payment details are documented in the
FUNDING SUMMARY. The FUNDING SUMMARY is incorporated and made an express
part of this AGREEMENT.
PARTNERS will execute a new FUNDING SUMMARY each time the funding details change.
The FUNDING SUMMARY will be executed by a legally authorized representative of the
respective PARTNERS. The most current fully executed FUNDING SUMMARY supersedes
any previous FUNDING SUMMARY created for this AGREEMENT.
Replacement of the FUNDING SUMMARY will not require an amendment to the body of this
AGREEMENT unless the funding changes require it.
10. Each PARTNER is responsible for the costs they incur in performing the OBLIGATIONS of
this AGREEMENT unless otherwise stated in this AGREEMENT.
Implementing Agency
11. RCTC is the IMPLEMENTING AGENCY for PS&E.
12. RCTC is the IMPLEMENTING AGENCY for RIGHT OF WAY.
13. The IMPLEMENTING AGENCY for a PROJECT COMPONENT will provide a Quality
Management Plan (QMP) for that component as part of the PROJECT MANAGEMENT
PLAN. The Quality Management Plan describes the IMPLEMENTING AGENCY’s quality
policy and how it will be used. The Quality Management Plan is subject to CALTRANS
review and approval.
14. Any PARTNER responsible for completing WORK shall make its personnel and consultants
that prepare WORK available to help resolve WORK-related problems and changes for the
entire duration of the PROJECT including PROJECT COMPONENT work that may occur
under separate agreements.
43
AGREEMENT 08-1603
Project No. 0817000014
PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 3 of 16
Independent Quality Assurance
15. CALTRANS will provide Independent Quality Assurance for the portions of WORK within
the existing and proposed SHS right-of-way.
CALTRANS’ Independent Quality Assurance efforts are to ensure that RCTC ’'s quality
assurance activities result in WORK being developed in accordance with the applicable
standards and within an established Quality Management Plan. Independent Quality
Assurance does not include any efforts necessary to develop or deliver WORK or any
validation by verifying or rechecking work performed by another party.
When CALTRANS performs Independent Quality Assurance it does so for its own benefit. No
one can assign liability to CALTRANS due to its Independent Quality Assurance.
CEQA/NEPA Lead Agency
16. CALTRANS is the CEQA Lead Agency for the PROJECT.
17. CALTRANS is the NEPA Lead Agency for the PROJECT.
Environmental Permits, Approvals and Agreements
18. PARTNERS will comply with the commitments and conditions set forth in the environmental
documentation, environmental permits, approvals, and applicable agreements as those
commitments and conditions apply to each PARTNER’s responsibilities in this
AGREEMENT.
19. Unless otherwise assigned in this AGREEMENT, the IMPLEMENTING AGENCY for a
PROJECT COMPONENT is responsible for all PROJECT COMPONENT WORK associated
with coordinating, obtaining, implementing, renewing, and amending the PROJECT per mits,
agreements, and approvals whether they are identified in the planned project scope of work or
become necessary in the course of completing the PROJECT.
20. The PROJECT requires the following environmental requirement s/approvals:
ENVIRONMENTAL PERMITS/REQUIREMENTS
401, Regional Water Quality Control Board
National Pollutant Discharge Elimination System (NPDES), State Water Resources Control
Board
44
AGREEMENT 08-1603
Project No. 0817000014
PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 4 of 16
Plans, Specifications, and Estimate (PS&E)
21. As IMPLEMENTING AGENCY for PS&E, RCTC is responsible for all PS&E WORK except
those PS&E activities and responsibilities that are assigned to another PARTNER in this
AGREEMENT and those activities that may be specifically excluded.
22. CALTRANS will be responsible for completing the following PS&E activities:
CALTRANS Work Breakdown Structure Identifier (If Applicable)
Independent Quality Assurance
255.15 Environmental Re-evaluation
23. RCTC will prepare Utility Conflict Maps identifying the accommodation, protection,
relocation, or removal of any existing utility facilities that conflict with construction of the
PROJECT or that violate CALTRANS’ encroachment policy.
RCTC will provide CALTRANS a copy of Utility Conflict Maps for CALTRANS'
concurrence prior to issuing the Notices to Owner and executing the Utility Agreement. All
utility conflicts will be addressed in the PROJECT plans, specifications, and estimate.
Right of Way (R/W)
24. As IMPLEMENTING AGENCY for R/W, RCTC is responsible for all R/W SUPPORT
WORK except those R/W SUPPORT activities and responsibilities that are assigned to another
PARTNER in this AGREEMENT and those activities that may be specifically excluded.
25. CALTRANS will be responsible for completing the following R/W SUPPORT activities:
CALTRANS Work Breakdown Structure Identifier (If Applicable)
Independent Quality Assurance
26. The selection of R/W personnel and WORK within the completed PROJECT’s SHS right -of-
way will be performed in accordance with federal and California laws and regulations, and
CALTRANS’ policies, procedures, standards, practices, and applicable agreements.
Commented [HLE2]: Is this true
45
AGREEMENT 08-1603
Project No. 0817000014
PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 5 of 16
27. RCTC will make all necessary arrangements with utility owners for the timely
accommodation, protection, relocation, or removal of any existing utility facilities that conflict
with construction of the PROJECT or that violate CALTRANS’ encroachment policy.
28. RCTC will provide CALTRANS a copy of conflict maps, Relocation Plans, proposed Notices
to Owner, Reports of Investigation, and Utility Agreements (if applicable) for CALTRANS'
concurrence prior to issuing the Notices to Owner and executing the Utility Agreement. All
utility conflicts will be fully addressed prior to Right of Way Certification and all arrangements
for the protection, relocation, or removal of all conflicting facilities will be completed prior to
construction contract award and included in the PROJECT plans, specifications, and estimate.
29. RCTC will determine the cost to positively identify and locate, protect, relocate, or remove any
utility facilities whether inside or outside SHS right-of-way in accordance with federal and
California laws and regulations, and CALTRANS’ policies, procedures, standards, practices,
and applicable agreements including but not limited to Freeway Master Contracts.
30. RCTC will provide a land surveyor licensed in the State of California to be responsible for
surveying and right-of-way engineering. All survey and right-of-way engineering documents
will bear the professional seal, certificate number, registration classification, expiration date of
certificate, and signature of the responsible surveyor.
31. RCTC will utilize a public agency currently qualified by CALTRANS or a properly licensed
consultant for all right-of-way activities. A qualified right-of-way agent will administer all
right-of-way consultant contracts.
RCTC will submit a draft Right of Way Certification document to CALTRANS six (6) weeks
prior to the scheduled Right of Way Certification milestone date for review.
RCTC will submit a final Right of Way certification document to CALTRANS for approval
prior to the PROJECT advertisement.
32. Physical and legal possession of right-of-way must be completed prior to construction
advertisement, unless PARTNERS mutually agree to other arrangements in writing. Right of
way conveyances must be completed prior to OBLIGATION COMPLETION, unless
PARTNERS mutually agree to other arrangements in writing.
33. CALTRANS’ acceptance of right-of-way title is subject to review of an Updated Preliminary
Title Report provided by RCTC verifying that the title is free of all encumbrances and liens.
Upon acceptance, RCTC will provide CALTRANS with a Policy o f Title Insurance in
CALTRANS’ name.
34. The California Transportation Commission is responsible for hearing and adopting Resolutions
of Necessity.
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AGREEMENT 08-1603
Project No. 0817000014
PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 6 of 16
Schedule
35. PARTNERS will manage the schedule for OBLIGATIONS through the work plan included in
the PROJECT MANAGEMENT PLAN.
Additional Provisions
36. PARTNERS will perform all OBLIGATIONS in accordance with federal and California laws,
regulations, and standards; FHWA STANDARDS; and CALTRANS STANDARDS.
37. CALTRANS retains the right to reject noncompliant WORK, protect public safety, preserve
property rights, and ensure that all WORK is in the best interest of the SHS.
38. Each PARTNER will ensure that personnel participating in OBLIGATIONS are appropriately
qualified or licensed to perform the tasks assigned to them.
39. PARTNERS will invite each other to participate in the selection of any consultants who
participate in OBLIGATIONS.
40. CALTRANS will issue, upon proper application, the encroachment permits required for
WORK within SHS right-of-way. Contractors and/or agents, and utility owners will not work
within the SHS right-of-way without an encroachment permit issued in their name.
CALTRANS will provide encroachment permits to PARTNERS, their contractors, consultants
and agents, and utility owners at no cost. If the encroachment permit and this AGREEMENT
conflict, the requirements of this AGREEMENT shall prevail.
41. The IMPLEMENTING AGENCY for a PROJECT COMPONENT will coordinate, prepare,
obtain, implement, renew, and amend any encroachmen t permits needed to complete the
PROJECT COMPONENT WORK.
42. If any PARTNER discovers unanticipated cultural, archaeological, paleontological, or other
protected resources during WORK, all WORK in that area will st op and that PARTNER will
notify all PARTNERS within twenty-four (24) hours of discovery. WORK may only resume
after a qualified professional has evaluated the nature and significance of the discovery and a
plan is approved for its removal or protection.
43. PARTNERS will hold all administrative drafts and administrative final reports, studies,
materials, and documentation relied upon, produced, created, or utilized for the PROJECT in
confidence to the extent permitted by law and where applicable, the provisions of California
Government Code section 6254.5(e) shall protect the confidentiality of such documents in the
event that said documents are shared between PARTNERS.
47
AGREEMENT 08-1603
Project No. 0817000014
PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 7 of 16
PARTNERS will not distribute, release, or share sa id documents with anyone other than
employees, agents, and consultants who require access to complete the PROJECT without the
written consent of the PARTNER authorized to release them, unless required or authorized to
do so by law.
44. If a PARTNER receives a public records request pertaining to OBLIGATIONS, that
PARTNER will notify PARTNERS within five (5) working days of receipt and make
PARTNERS aware of any disclosed public documents. PARTNERS will consult with each
other prior to the release of any public documents related to the PROJECT.
45. If HM-1 or HM-2 is found during a PROJECT COMPONENT, the IMPLEMENTING
AGENCY for that PROJECT COMPONENT will immediately notify PARTNERS.
46. CALTRANS, independent of the PROJECT, is responsible for any HM-1 found within the
existing SHS right-of-way. CALTRANS will undertake, or cause to be undertaken, HM
MANAGEMENT ACTIVITIES related to HM-1 with minimum impact to the PROJECT
schedule.
CALTRANS, independent of the PROJECT will pay, or cause to be paid, the cost of HM
MANAGEMENT ACTIVITIES related to HM-1 found within the existing SHS right-of-way.
47. If HM-1 is found within the PROJECT limits and outside the existing SHS right-of-way,
responsibility for such HM-1 rests with the owner(s) of the parcel(s) on which the HM -1 is
found. RCTC, in concert with the local agency having land use jurisdiction over the parcel(s),
will ensure that HM MANAGEMENT ACTIVITIES related to HM-1 are undertaken with
minimum impact to PROJECT schedule.
The costs for HM MANAGEMENT ACTIVITIES related to HM-1 found within the
PROJECT limits and outside the existing SHS right-of-way will be the responsibility of the
owner(s) of the parcel(s) where the HM -1 is located.
48. If HM-2 is found within the PROJECT limits, the public agency responsible for the
advertisement, award, and administration (AAA) of the PROJECT construction contract will
be responsible for HM MANAGEMENT ACTIVITIES related to HM -2.
49. CALTRANS’ acquisition or acceptance of title to any property on which any HM -1 or HM-2
is found will proceed in accordance with CALTRANS’ policy on such acquisition.
50. RCTC will accept, reject, compromise, settle, or litigate claims of any non -AGREEMENT
parties hired to complete OBLIGATIONS.
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51. PARTNERS will confer on any claim that may affect OBLIGATIONS or PARTNERS’
liability or responsibility under this AGREEMENT in order to retain resolution possibilities for
potential future claims. No PARTNER will prejudice the rights of another PARTNER until
after PARTNERS confer on the claim.
52. If the PROJECT expends state or federal funds, each PARTNER will comply with the federal
Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal
Awards of 2 CFR, Part 200. PARTNERS will ensure that any for -profit party hired to
participate in the OBLIGATIONS will comply with the requirements in 48 CFR, Chapter 1,
Part 31. When state or federal funds are expended on the PROJECT these principles and
requirements apply to all funding types included in this AGREEMENT.
53. If the PROJECT expends state or federal funds, each PARTNER will undergo an annual audit
in accordance with the Single Audit Act and the federal Office of Management and Budget
(OMB) Circular A-133.
54. If the PROJECT expends federal funds, any PARTNER that hires an A&E consultant to
perform WORK on any part of the PROJECT will ensure that the procurement of the
consultant and the consultant overhead costs are in accordance with Chapter 10 of the Local
Assistance Procedures Manual.
55. If WORK stops for any reason, IMPLEMENTING AGENCY will p lace the PROJECT right-
of-way in a safe and operable condition acceptable to CALTRANS.
56. If WORK stops for any reason, each PAR TNER will continue to implement all of its
applicable commitments and conditions included in the PROJECT environmental
documentation, permits, agreements, or approvals that are in effect at the time that WORK
stops, as they apply to each PARTNER’s responsi bilities in this AGREEMENT, in order to
keep the PROJECT in environmental compliance until WORK resumes.
57. Fines, interest, or penalties levied against a PARTNER will be paid by the PARTNER whose
action or lack of action caused the levy.
58. If there are insufficient funds available in this AGREEMENT to place PROJECT right -of-way
in a safe and operable condition, the appropriate IMPLEMENTING AGENCY will fund these
activities until such time as PARTNERS amend this AGREEMENT.
That IMPLEMENTING AGENCY may request reimbursement for these costs during the
amendment process.
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59. RCTC will furnish CALTRANS with the Project History Files related to the PROJECT
facilities on SHS within sixty (60) days following the completion o f each PROJECT
COMPONENT. RCTC will prepare the Project History File in accordance with the Project
Development Procedures Manual, Chapter 7. All material will be submitted neatly in a three -
ring binder and on a CD ROM in PDF format.
GENERAL CONDITIONS
60. PARTNERS understand that this AGREEMENT is in accordance with and governed by the
Constitution and laws of the State of California. This AGREEMENT will be enforceable in the
State of California. Any PARTNER initiating legal action arising from this AGREEMENT
will file and maintain that legal action in the Superior Court of the county in which the
CALTRANS district office that is signatory to this AGREEMENT resides, or in the Superior
Court of the county in which the PROJECT is physically located.
61. All CALTRANS’ OBLIGATIONS under this AGREEMENT are subject to the appropriation
of resources by the Legislature, the State Budget Act authority, and the allocation of funds by
the California Transportation Commission.
62. Neither RCTC nor any officer or employee thereof is responsible for any injury, damage or
liability occurring by reason of anything done or omitted to be done by CALTRANS, its
contractors, sub-contractors, and/or its agents under or in connection with any work, authority,
or jurisdiction conferred upon CALTRANS under this AGREEMENT. It is understood and
agreed that CALTRANS, to the extent permitted by law, will defend, indemnify, and save
harmless RCTC and all of its officers and employees from all claims, suits, or actions of every
name, kind, and description brought forth under, but not limited to, tortious, contractual,
inverse condemnation, or other theories and assertions of liability occurring by reason of
anything done or omitted to be done by CALTRANS, its contractors, sub-contractors, and/or
its agents under this AGREEMENT.
63. Neither CALTRANS nor any officer or employee thereof is responsible for any injury,
damage, or liability occurring by reason of anything done or omitted to be done by RCTC, its
contractors, sub-contractors, and/or its agents under or in connection with any work, authority,
or jurisdiction conferred upon RCTC under this AGREEMENT. It is understood and agreed
that RCTC, to the extent permitted by law, will defend, indemnify, and save harmless
CALTRANS and all of its officers and employees from all claims, suits, or actions of every
name, kind, and description brought forth under, but not limited to, tortious, contractual,
inverse condemnation, or other theories and assertions of liability occurring by reason of
anything done or omitted to be done by RCTC, its contractors, sub -contractors, and/or its
agents under this AGREEMENT.
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64. PARTNERS do not intend this AGREEMENT to create a third party beneficiary or define
duties, obligations, or rights in parties not signatory to this AGREEMENT. PARTNERS do not
intend this AGREEMENT to affect their legal liability by imposing any standard of care for
fulfilling OBLIGATIONS different from the standards imposed by law.
65. PARTNERS will not assign or attempt to assign OBLIGATIONS to parties not signatory to
this AGREEMENT without an amendment to this AGREEMENT.
66. RCTC will not interpret any ambiguity contained in this AGREEMENT against CALTRANS.
RCTC waives the provisions of California Civil Code section 1654.
A waiver of a PARTNER’s performance under this AGREEMENT will not constitute a
continuous waiver of any other provision.
67. A delay or omission to exercise a right or power due to a default does not negate the use of that
right or power in the future when deemed necessary.
68. If any PARTNER defaults in its OBLIGATIONS, a non -defaulting PARTNER will request in
writing that the default be remedied within thirty (30) calendar days. If the defaulting
PARTNER fails to do so, the non-defaulting PARTNER may initiate dispute resolution.
69. PARTNERS will first attempt to resolve AGREEMENT disputes at the PROJECT team level.
If they cannot resolve the dispute themselves, the CALTRANS district director and the
executive officer of RCTC will attempt to negotiate a resolution. If PARTNERS do not reach a
resolution, PARTNERS’ legal counsel will initiate mediation. PARTNERS agree to participate
in mediation in good faith and will share equally in its costs.
Neither the dispute nor the mediation process relieves PARTNERS from full and timely
performance of OBLIGATIONS in accordance with the terms of this AGREEMENT.
However, if any PARTNER stops fulfilling OBLIGATIONS, any other PARTNER may seek
equitable relief to ensure that OBLIGATIONS continue.
Except for equitable relief, no PARTNER may file a civil complaint until after mediation, or
forty-five (45) calendar days after filing the written mediation request, whichever occurs first.
PARTNERS will file any civil complaints in the Superior Court of the county in which the
CALTRANS district office signatory to this AGREEMENT resides or in the Superior Court of
the county in which the PROJECT is physically located.
70. PARTNERS maintain the ability to pursue alternative or additional dispute remedies if a
previously selected remedy does not achieve resolution.
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71. If any provisions in this AGREEMENT are found by a court of competent jurisdiction to be, or
are in fact, illegal, inoperative, or unenforceable, those provisions do not render any or all other
AGREEMENT provisions invalid, inoperative, or unenforceable, a nd those provisions will be
automatically severed from this AGREEMENT.
72. If during performance of WORK additional activities or environmental documentation is
necessary to keep the PROJECT in environmental compliance, PARTNERS will amend this
AGREEMENT to include completion of those additional tasks.
73. Except as otherwise provided in the AGREEMENT, PARTNERS will execute a formal written
amendment if there are any changes to OBLIGATIONS.
74. When WORK performed on the PROJECT is done under contract and falls within the Labor
Code section 1720(a)(1) definition of "public works" in that it is construction, alteration,
demolition, installation, or repair; or maintenance work under Labor Code section 1771,
PARTNERS shall conform to the provisions of Labor Code sections 1720 through 1815, and
all applicable provisions of California Code of Regulations found in Title 8, Division 1,
Chapter 8, Subchapter 3, Articles 1-7. PARTNERS shall include prevailing wage
requirements in contracts for public work and require contractors to includ e the same
prevailing wage requirements in all subcontracts. Work performed by a PARTNER’s own
employees is exempt from the Labor Code's Prevailing Wage requirements.
75. If WORK is paid for, in whole or part, with federal funds and is of the type of work subject to
federal prevailing wage requirements, PARTNERS shall conform to the provisions of the
Davis-Bacon and Related Acts, 40 U.S.C. § 276(a).
When applicable, PARTNERS shall include federal prevailing wage requirements in contracts
for public work. WORK performed by a PARTNER’s employees is exempt from federal
prevailing wage requirements.
76. PARTNERS agree to sign a CLOSURE STATEMENT to terminate this AGREEMENT.
However, all indemnification, document retention, audit, claims, environmental commitment,
legal challenge, maintenance and ownership articles will remain in effect until terminated or
modified in writing by mutual agreement or expire by the statute of limitations.
77. PARTNERS intend this AGREEMENT to be their final expression that supersedes any oral
understanding or writings pertaining to the OBLIGATIONS. The requirements of this
AGREEMENT shall preside over any conflicting requirements in any documents that are made
an express part of this AGREEMENT.
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PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 12 of 16
DEFINITIONS
AGREEMENT – This agreement including any attachments, exhibits, and amendments.
CALTRANS STANDARDS – CALTRANS policies and procedures, including, but not limited to,
the guidance provided in the Project Development Procedures Manual (PDPM) and the
CALTRANS Workplan Standards Guide for the Delivery of Capital Projects (WSG) [which
contains the CALTRANS Work Breakdown Structure (WBS) and was previously known as the
WBS Guide] and is available at http://www.dot.ca.gov/hq/projmgmt/guidance.htm.
CEQA (California Environmental Quality Act) – The act (California Public Resources Code,
sections 21000 et seq.) that requires state and local agencies to identify the significant
environmental impacts of their actions and to avoid or mitigate those significant impacts, if
feasible.
CFR (Code of Federal Regulations) – The general and permanent rules published in the Federal
Register by the executive departments and agencies of the federal government.
CLOSURE STATEMENT – A document signed by PARTNERS that verifies the completion of all
OBLIGATIONS included in this AGREEMENT and in all amendments to this AGREEMENT.
FHWA – Federal Highway Administration.
FHWA STANDARDS – FHWA regulations, policies and procedures, including, but not limited to,
the guidance provided at www.fhwa.dot.gov/topics.htm.
FUNDING PARTNER – A PARTNER that commits funds in this AGREEMENT to fulfill
OBLIGATIONS. A FUNDING PARTNER accepts the responsibility to provide the funds it
commits in this Agreement.
FUNDING SUMMARY – An executed document that includes a FUNDING TABLE and invoicing
and payment methods.
FUNDING TABLE – The table that designates funding sources, types of funds, and the PROJECT
COMPONENT in which the funds are to be spent. Funds listed on the FUNDING TABLE are
“not-to-exceed” amounts for each FUNDING PARTNER.
GAAP (Generally Accepted Accounting Principles) – Uniform minimum standards and guidelines
for financial accounting and reporting issued by the Federal Accounting Standards Advisory
Board that serve to achieve some level of standardization. See
http://www.fasab.gov/accepted.html.
HM-1 – Hazardous material (including, but not limited to, hazardous waste) that may require
removal and disposal pursuant to federal or state law whether it is disturbed by the PROJECT
or not.
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HM-2 – Hazardous material (including, but not limited to, hazardous waste) that may require
removal and disposal pursuant to federal or state law only if disturbed by the PROJECT.
HM MANAGEMENT ACTIVITIES – Management activities related to either HM-1 or HM-2
including, without limitation, any necessary manifest requirements and disposal facility
designations.
IMPLEMENTING AGENCY – The PARTNER responsible for managing the scope, cost, and
schedule of a PROJECT COMPONENT to ensure the completion of that component.
IQA (Independent Quality Assurance) – CALTRANS’ efforts to ensure that another PARTNER’s
quality assurance activities are in accordance with the applicable standards and the
PROJECT’s Quality Management Plan (QMP). When CALTRANS performs Independent
Quality Assurance it does not develop, produce, validate, verify, re-check, or quality control
another PARTNER’s work products.
NEPA (National Environmental Policy Act of 1969) – This federal act establishes a national policy
for the environment and a process to disclose the adverse impacts of projects with a federal
nexus.
OBLIGATIONS – All WORK responsibilities and their associated costs.
OBLIGATION COMPLETION – PARTNERS have fulfilled all OBLIGATIONS included in this
AGREEMENT and have signed a CLOSURE STATEMENT.
PARTNER – Any individual signatory party to this AGREEMENT.
PARTNERS – The term that collectively references all of the signatory agencies to this
AGREEMENT. This term only describes the relationship between these agencies to work
together to achieve a mutually beneficial goal. It is not used in the traditional legal sense in
which one PARTNER’s individual actions legally bind the other PARTNER.
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PROJECT COMPONENT – A distinct portion of the planning and project development process of a
capital project as outlined in California Government Code, section 14529(b).
PID (Project Initiation Document) – The work required to deliver the project initiation
document for the PROJECT in accordance with CALTRANS STANDARDS.
PA&ED (Project Approval and Environmental Document) – The work required to deliver
the project approval and environmental documentation for the PROJECT in accordance
with CALTRANS STANDARDS.
PS&E (Plans, Specifications, and Estimate) – The work required to deliver the plans,
specifications, and estimate for the PROJECT in accordance with CALTRANS
STANDARDS.
R/W (Right of Way) –The project components for the purpose of acquiring real property
interests for the PROJECT in accordance with CALTRANS STANDARDS.
R/W (Right of Way) SUPPORT –The work required to obtain all property interests for
the PROJECT.
R/W (Right of Way) CAPITAL – The funds for acquisition of property rights for the
PROJECT.
CONSTRUCTION – The project components for the purpose of completing the
construction of the PROJECT in accordance with CALTRANS STANDARDS.
CONSTRUCTION SUPPORT – The work required for the administration, acceptance,
and final documentation of the construction contract for the PROJECT.
CONSTRUCTION CAPITAL – The funds for the construction contract.
PROJECT MANAGEMENT PLAN – A group of documents used to guide the PROJECT’s
execution and control throughout that project’s lifecycle.
PS&E (Plans, Specifications, and Estimate) – See PROJECT COMPONENT.
QMP (Quality Management Plan) – An integral part of the PROJECT MANAGEMENT PLAN that
describes IMPLEMENTING AGENCY’s quality policy and how it will be used.
R/W (Right of Way) CAPITAL – See PROJECT COMPONENT.
R/W (Right of Way) SUPPORT – See PROJECT COMPONENT.
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SHS (State Highway System) – All highways, right-of-way, and related facilities acquired, laid out,
constructed, improved, or maintained as a state highway pursuant to constitutional or
legislative authorization.
SPONSOR – Any PARTNER that accepts the responsibility to establish scope of the PROJECT and
the obligation to secure financial resources to fund the PROJECT COMPONENTS in this
AGREEMENT. A SPONSOR is responsible for adjusting the PROJECT scope to match
committed funds or securing additional funds to fully fund the PROJECT COMPONENTS in
this AGREEMENT. If this AGREEMENT has more than one SPONSOR, funding
adjustments will be made by percentage (as outlined in Responsibilities). Scope adjustments
must be developed through the project development process and must be approved by
CALTRANS as the owner/operator of the SHS.
WORK – All efforts to complete the OBLIGATIONS included in this AGREEMENT as described
by the activities in the CALTRANS Workplan Standards Guide for the Delivery of Capital
Projects (WSG).
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SIGNATURES
PARTNERS are empowered by California Streets and Highways Code section 114 and 130 to
enter into this AGREEMENT and have delegated to the undersigned the authority to execute
this AGREEMENT on behalf of the respective agencies and covenants to have followed all the
necessary legal requirements to validly execute this AGREEMENT.
Signatories may execute this AGREEMENT through individual signature pages provided that
each signature is an original. This AGREEMENT is not fully executed until all original
signatures are attached.
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
John Bulinski
District Director
Certified as to funds:
Lisa Pacheco
District Budget Manager
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
Anne Mayer
Executive Director
Approved as to form and procedure:
Best, Best aAnd Krieger
Legal Counsel
57
AGREEMENT 08 - 1603
Project No. 0817000014
EA 0F321
08-RIV-215-29.06/30.01
PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 1 of 2
FUNDING SUMMARY NO. 01
FUNDING TABLE
v. 12
IMPLEMENTING AGENCY RCTC RCTC
Source
FUNDING
PARTNER Fund Type PS&E R/W
SUPPORT
R/W
CAPITAL Totals
Local RCTC Measure 4,600,000 5,000,000 20,900,000 30,500,000
Totals 4,600,000 5,000,000 20,900,000 30,500,000
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FUNDING SUMMARY No. 01 AGREEMENT 08 - 1603
Project No. 0817000014
PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 2 of 3
Invoicing and Payment
Plans, Specifications, and Estimate (PS&E)
1. No invoicing or reimbursement will occur for the PS&E PROJECT COMPONENT.
Right of Way Support (R/W SUPPORT)
2. No invoicing or reimbursement will occur for the R/W SUPPORT PROJECT
COMPONENT.
Right of Way Capital (R/W CAPITAL)
3. No invoicing or reimbursement will occur for the R/W CAPITAL PROJECT
COMPONENT.
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FUNDING SUMMARY No. 01 AGREEMENT 08 - 1603
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PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 3 of 3
Signatures
PARTNERS are empowered by California Streets and Highways Code sections 114 and
130 to enter into this AGREEMENT and have delegated to the undersigned the authority to
execute this FUNDING SUMMARY on behalf of the respective agencies and covenants to
have followed all the necessary legal requirements to validly execute this FUNDING
SUMMARY.
Signatories may execute this FUNDING SUMMARY through individual signature pages
provided that each signature is an original. This FUNDING SUMMARY is not fully
executed until all original signatures are attached.
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
John Bulinski
District Director
Date
District Budget Manager
HQ Accounting
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
Anne Mayer
Executive Director
Date
60
AGENDA ITEM 9
Agenda Item 9
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: October 24, 2016
TO: Western Riverside County Programs and Projects Committee
FROM: Brenda Ramirez, Management Analyst
Sheldon Peterson, Rail Manager
THROUGH: Robert Yates, Multimodal Services Director
SUBJECT: Mobile Source Air Reduction Review Committee Transportation Control
Measure Partnership Program
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve Agreement No. 17-25-016-00 with the South Coast Air Quality Management
District (SCAQMD) for a grant from the Mobile Source Air Pollution Reduction Review
Committee (MSRC) Transportation Control Measure Partnership Program in the amount
of $1,909,241;
2) Approve Agreement No. 17-25-038-00 with the city of Riverside for the Rustin Avenue
Sidewalk Improvement and Bike Lane project in the amount not to exceed $600,000;
3) Approve an amendment in the amount of $1,909,241 to the FY 2016/17 Commuter Rail
Short Range Transit Plan (SRTP);
4) Approve an increase in revenues and expenditures of $1,909,241 in the FY 2016/17
budget related to the MSRC grant;
5) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreements on behalf of the Commission; and
6) Forward to the Commission for final action.
BACKGROUND INFORMATION:
On April 1, 2016, the Commission was awarded a MSRC Transportation Control Measure
Partnership Program grant by the SCAQMD to address first mile/last mile mobility associated
with Metrolink stations in Riverside County. The grant awarded the Commission $1,909,241 to
implement strategies that are essential to improving mobility and making the commuter rail
system expansion more successful in reducing emissions. The Commission will also use $690,759
of available Proposition 1B Public Transportation Modernization, Improvement , and Service
Enhancement Account program funds as a local match to the MSRC grant.
After the grant award, Commission staff began working with Parsons Brinkerhoff, one of three
on-call rail consultants, to compile a work plan that will identify recommendations for improving
mobility. The consultant will identify projects that will significantly improve the active
61
Agenda Item 9
transportation connection and access to all Metrolink stations by pedestrians and bicyclists. To
address these mobility challenges, the project will review safe and effective bike storage, clear
access paths at the stations, and nearby pedestrian and bicycle access at each Metrolink station.
The work plan will incorporate all of the Commission’s nine Metrolink stations and provide
recommendations and guidance to implement those projects with the remaining MSRC grant
funds.
During the development of the Riverside-Hunter Park/UCR Station, staff identified additional
pedestrian improvements are needed on the adjacent street of Rustin Avenue to link the station
to high density residential neighborhoods and create a safe bike path to UC Riverside. City of
Riverside (Riverside) staff is supportive of this effort and agreed to enter into a cooperative
agreement for the city to complete the work on its right of way in an amount not to exceed
$600,000. This project was included in the grant application and supported by the MSRC.
In addition, Riverside has a separate grant for a bike storage structure and bike sharing at the
Riverside-Downtown Station, and Commission staff has commenced discussions with the city
regarding implementation of this project at the station with the intent to enter into another
cooperative agreement for these bike projects. For additional community projects, staff will be
reaching out to other jurisdictions to ensure their approved pedestrian and bicycle path plans are
incorporated into the Commission’s work plan and identify additional active transportation
improvements.
The grant award of $1,909,241 will be paid to the Commission as work is performed. An
amendment to the FY 2016/17 Commuter Rail SRTP Table 4 in the amount of $1,909,241 is
required as well as adjustments to the FY 2016/17 budget of $1,909,241 to increase revenues for
the MSRC grant and expenditures.
Financial Information
In Fiscal Year Budget: No Year: FY 2016/17 Amount:
$1,909,241 revenues
($1,909,241) expenditures
$0 net impact
Source of Funds: MSRC grant Budget Adjustment: Yes
GL/Project
Accounting No.:
004019 415 41510 103 25 41501 $1,909,241 (revenues)
004019 81301 00000 0102 103 25 81301 $1,909,241 (expenditures)
Fiscal Procedures Approved: Date: 10/15/2016
Attachments:
1) Draft MSRC Grant Agreement No. 17-25-016-00
2) Draft City of Riverside Cooperative Agreement No. 17-25-038-00
62
ATTACHMENT 1
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65
66
67
68
69
70
71
72
73
74
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17336.00600\29281559.3
Agreement No. 17-25-038-00
RIVERSIDE COUNTY TRANSPORTATION COMMISSION MSRC FUNDING
COOPERATIVE AGREEMENT WITH THE CITY OF RIVERSIDE FOR RIVERSIDE
HUNTER PARK/UCR METROLINK STATION IMPROVEMENTS
1.Parties and Date. This Agreement is made and entered into this ____ day of
______________, 201_, by and between the Riverside County Transportation
Commission, hereinafter referred to as "RCTC," and the City of Riverside, hereinafter
referred to as "Agency”.
2.Recitals.
2.1 Pursuant to Health & Safety Code Section 44225 (AB 2766), a fee is levied
on motor vehicles to be used for reduction of air pollution from such vehicles in order to
implement the California Clean Air Act. The fee is managed by the South Coast Air
Quality Management District (“SCAQMD”).
2.2 Under AB 2766, thirty percent (30%) of the vehicle registration fees
collected are held by SCAQMD in a separate account for the purpose of implementing
and monitoring programs to reduce air pollution from motor vehicles. The Mobile Source
Air Pollution Reduction Review Committee (MSRC) developed a work program to fund
projects from this account.
2.3 RCTC entered into that certain AB 2766/MSRC Transportation Control
Measure Partnership Program Contract (Contract No. MS16094) with SCAQMD,
pursuant to which SCAQMD agreed to provide MSRC grant funding to RCTC for
implementation of certain projects designed to promote “first mile/last mile” access to
commuter rail, increase rail ridership and reduce emissions associated with vehicle cold
starts, in cooperation with RCTC member entities, including the Agency (the “MSRC
Contract”).
2.4 RCTC had the need for a pedestrian access project and Agency prepared
a project proposal for the project described in Exhibit “A” in accordance with RCTC’s
request.
2.5 The proposal submitted by Agency describes a priority project which RCTC
has determined merits funding, and Agency is eligible to receive MSRC grant funds.
Agency’s proposal is referred to herein as the “Project”.
2.6 SCAQMD has approved the Project, and has included the Project in the
MSRC Contract as a project to be funded thereunder.
2.7 On November 9, 2016, RCTC’s Board of Directors approved the
programming by RCTC of up to _____________ ($______) in MSRC grant funds to be
matched with __________ ($_________) in Agency funds for the Project.
ATTACHMENT 2
76
2
17336.00600\29281559.3
RCTC shall disburse MSRC grant funds received from SCAQMD to Agency for the
Project in accordance with the terms of this Agreement.
2.8 The parties acknowledge and agree that federal Con gestion Mitigation Air
Quality (CMAQ) funding previously allocated to Agency will be reduced in an amount
equal to the amount of MSRC grant funds allocated to Agency hereunder.
3. Terms.
3.1 Definition; Term of Agreement.
A. Definitions.
1. Days - As used in this Agreement, “days” shall be calendar
days.
2. Effective Date – Refers to the date first specified above.
3. Funding Plan – The plan included as part of the attached
Exhibit “B” specifying the funding amounts and funding sources for the Project.
4. MSRC Funds – The MSRC grant funds provided by SCAQMD
pursuant to the MSRC Contract for the Project, which RCTC shall provide to Agency as
a subrecipient of RCTC under this Agreement.
5. Project – The project proposed by Agency, as described in
Exhibit "A", which has been reviewed and approved by RCTC.
B. Term. The term of this Agreement shall commence on the Effective
Date, and shall continue in effect for forty-two (42) months from the effective date of the
MSRC Contract, unless otherwise extended pursuant to an amendment to this
Agreement, or terminated as provided herein.
3.2 Grant Terms; Agency Responsibilities.
A. Scope of Grant; Cost Overruns. Agency shall use the MSRC Funds
described hereunder exclusively to implement the Project. Agency shall be solely
responsible for implementing the Project in the manner described herein. The MSRC
Funds described in Exhibit “B” of this Agreement are specifically for the Project and make
up the entire amount which RCTC has authorized for the Project. Any subsequent
amendments to the Project scope or description or additional services to be provided are
not covered by this Agreement, and the funding for any such amendments or additional
services shall be the sole responsibility of Agency, unless such amendments or additional
services are approved in writing by RCTC prior to the provision of such amendments or
additional services.
B. Incorporation of MSRC Contract. The MSRC Contract is on file at
the offices of the parties hereto, and is incorporated herein by reference. All ap plicable
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provisions of the MSRC Contract binding on RCTC, as the “Contractor” thereunder, shall
apply to Agency. By signing below, Agency represents and warrants that it has read and
is familiar with the terms of the MSRC Contract, and agrees to comply th erewith. In
addition, Agency shall be responsible for including any relevant provisions of the MSRC
Contract in its contracts for the Project. RCTC shall have the right to enforce the terms
of the MSRC Contract as such terms apply to Agency. In the case of a conflict between
the MSRC Contract and this Agreement, the terms of this Agreement shall govern.
C. Approval by RCTC; Responsibility of Recipient for Project
Compliance with MSRC Contract. Any use of MSRC Funds provided pursuant to this
Agreement shall be subject to the review and approval of RCTC. Notwithstanding any
approval by RCTC of the Project or the use of MSRC Funds, Agency shall be solely
responsible and liable for compliance with all rules and regulations applicable to the
MSRC Funds. Approval by RCTC of the Project does not evidence any opinion of or
representation by RCTC of the Project’s compliance with applicable rules and regulations
regarding use of the MSRC Funds, or with the MSRC Contract. If SCAQMD determines
that any MSRC Funds were not spent in accordance with rules and regulations applicable
to the MSRC Funds, or with the MSRC Contract, Agency shall be solely responsible for
reimbursement of all such improperly expended funds and shall make such
reimbursement in the manner specified in this Agreement.
D. Funding Reimbursement by Agency. If it is determined pursuant to
a Project audit that any MSRC Funds provided pursuant to this Agreement have been
improperly expended, Agency shall, at the direction of the agency performing the audit
(e.g. RCTC or SCAQMD), reimburse within thirty (30) days the full amount of such
improperly expended funds. The funds shall be reimbursed to the agency identified by
RCTC with a notice to RCTC that the reimbursement was accomplished. RCTC shall
also have the right to deduct any improperly expended MSRC Funds from future
reimbursements of MSRC Funds to Agency.
E. Cost Savings. In the event that bids for the Project are lower than
anticipated, or there are cost savings for any other reason, the Funding Plan s hall be
revised to apply such cost savings proportionately to each funding source listed in the
Funding Plan. Agency shall inform RCTC of any cost savings and the parties shall amend
this Agreement to reflect the revisions to the Funding Plan. RCTC’s Exe cutive Director
and the Agency Manager shall be authorized to execute any such amendment.
F. Failure of SCAQMD to Disburse Funds. RCTC shall have no
obligation to reimburse Agency for any Project costs unless and until SCAQMD has
provided the MSRC Funds to RCTC in accordance with the terms of the MSRC Contract.
RCTC shall not be liable to Agency for any delays or failure of SCAQMD to provide the
MSRC Funds obligated to Agency hereunder. Reimbursement of Project costs shall be
in accordance with the terms of this Agreement, and the MSRC Contract.
G. Stop Work Order. If SCAQMD issues a stop work order under the
MSRC Contract, RCTC shall notify Agency of such order, and all work subject to
reimbursement under this Agreement shall cease until the stop work order i s cancelled
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by SCAQMD. Work completed while the stop work order is in effect shall not be eligible
for reimbursement under this Agreement.
3.3 Additional Responsibilities of Agency
A. Indemnification. To the fullest extent permitted by law, Agency shall
defend, indemnify and hold RCTC, SCAQMD, and their directors, officials, officers,
employees, agents and/or volunteers free and harmless from any and all liability from
loss, damage, or injury to property or persons, including wrongful death, in any manner
arising out of or incident to any acts, omissions or willful misconduct of Agency or any of
its directors, officials, officers, employees, agents, volunteers, or service providers arising
out of or in connection with Agency's performance of this Agreement, or the Project,
including, without limitation, the payment of consequential damages and attorneys' fees.
Further, Agency shall defend, at its own expense, including the payment of attorneys'
fees, RCTC, SCAQMD, and their officials, officers, employees, agent s and/or volunteers
in any legal action based upon such acts, omissions or willful misconduct. Agency shall
reimburse RCTC, SCAQMD, and their directors, officials, officers, employees, agents
and/or volunteers, for any and all legal expenses and costs inc urred by each of them in
connection therewith or in enforcing the indemnity herein provided.
B. Standard of Care; Performance Standards.
1. Agency shall implement the Project in a skillful and competent
manner and in accordance with all applicable local, state, and federal laws, rules and
regulations. Agency shall be responsible to RCTC for any errors or omissions in its
execution of this Agreement or the implementation of the Project.
2. Agency shall meet or exceed the following performance
standards for the Project:
a. Adhere to the timeline set forth in this Agreement or as
subsequently approved by RCTC.
b. Expend the funding specified herein entirely on the
Project.
c. Implement the Project in a manner consistent with
Exhibit "A" and all provisions of this Agreement.
d. Provide Project reporting to RCTC in a manner
consistent with this Agreement.
e. Comply with all applicable requirements and
restrictions imposed by the MSRC Contract, and/or related to the MSRC Funds.
f. Comply with prevailing wage requirements (California
Labor Code Sections 1770 et seq.).
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C. Insurance. Agency shall obtain and require its subcontractors or
sub-consultants to obtain insurance of the types and in the amounts described below for
the entire term of this Agreement.
1. Commercial General Liability Insurance. Agency shall
maintain and require its consultants and contractors to maintain sufficient insurance to
cover the risks associated with the Project. Such insurance shall be in an amount of at
least $1,000,000 per occurrence, and $2,000,000 general aggregate.
2. Business Automobile Liability Insurance. Agency shall
maintain business automobile liability insurance or equivalent form with a combined single
limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage
for owned, hired and non-owned automobiles.
3. Workers' Compensation Insurance. Agency shall maintain
workers' compensation insurance with statutory limits and employer's liability insurance
with limits of not less than $1,000,000 per accident.
4. Endorsements. The commercial general and automobile
liability insurance policies described above shall:
a. Name RCTC, SCAQMD and their officials, officers,
employees, agents, and consultants, as insureds with respect to performance of this
Agreement. Such insured status shall contain no special limitations on the scope of its
protection to the above-listed insureds.
b. Be primary and noncontributory with respect to any
insurance or self-insurance programs covering RCTC, SCAQMD and their directors,
officials, officers, employees, agents, and consultants.
c. Contain standard separation of insureds provisions.
5. Certificates/Insurer Rating/Cancellation Notice. Agency shall,
prior to receiving any funding under this Agreement, furnish to RCTC properly executed
certificates of insurance, certified copies of endorsements, and policies, if requested by
RCTC which shall clearly evidence all insurance required in this Section. Agency shall
not allow such insurance to be canceled, allowed to expire or be materially reduced in
coverage except on thirty (30) days prior written notice to RCTC.
D. Obligation to Provide Match Funding. Agency shall provide funding
at least equal to the amounts shown in Exhibit “B”, attached hereto and incorporated by
reference, as a match to the MSRC Funds provided for the Project.
E. Public Outreach Plan. Agency shall prepare, and submit to RCTC
for approval, a public outreach plan in accordance with the requirements of the MSRC
Contract (“Public Outreach Plan”). Agency shall comply with and implement the approved
Public Outreach Plan. The Public Outreach Plan may be subject to review, comment and
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approval by SCAQMD. Agency shall revise the Public Outreach Plan as necessary to
obtain SCAQMD approval.
F. Invoices. Agency shall maintain and create the necessary Project
invoices, records, reports and financial accounts to permit disbursement of MSRC Funds
to Agency in accordance with the requirements of the MSRC Contract. Final invoices for
the Project shall be submitted to RCTC no later than sixty (60) days following the
termination date of this Agreement to ensure eligibility for reimbursement.
3.4 RCTC's Rights and Responsibilities.
A. Disbursement of Funds. RCTC shall coordinate with SCAQMD and
Agency in the authorization and the disbursement of MSRC Funds in an amount up to
that shown in Exhibit “B”, Funding Plan, for the Project. RCTC shall promptly disburse
MSRC Funds to Agency upon receipt thereof, for eligible Project costs, from SCAQMD.
B. Time Extensions. RCTC will consider requests for extensions of time
if the reason for delay is above and beyond the Agency’s control.
4. Accounting Records.
4.1 Retention of Records. Agency shall maintain complete and accurate
records with respect to costs incurred and other records generated under this Agreement.
All such records shall be clearly identifiable. Agency shall allow representatives of RCTC
and SCAQMD during normal business hours to examine, audit, and make transcripts or
copies of such records. Agency shall maintain all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the expiration
of this Agreement and shall allow inspection hereunder during such time.
4.2 Accounting of Funds. When requested by RCTC, Agency shall within fifteen
(15) days provide RCTC with a full reporting and accounting of all MSRC Funds received
pursuant to this Agreement during its term.
5. Project Reports - Quarterly Reporting: Agency shall prepare and submit to RCTC
quarterly milestone reports detailing the Project’s progress including a financial status
report and milestone progress report, and any other items specified in Exhibit “A”, in a
form approved by RCTC, and in accordance with all requirements of SCAQMD. Project
reports shall be subject to review, comment and approval by SCAQMD. Agency shall
revise Project reports as necessary to obtain SCAQMD approval.
6. Audit.
6.1 RCTC shall notify Agency in writing, by the end of the fiscal year, if Agency
is required to conduct an annual financial audit of records pertaining to the Project. If an
audit is required, it shall be completed and submitted to RCTC by December 31st of the
following fiscal year ("Audit Deadline"). In order to ensure compliance with the Audit
Deadline, Agency shall respond promptly to the auditor's requests for documentation and
records.
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6.2 RCTC may, in its sole and absolute discretion, grant an extension of the
Audit Deadline upon written request of the Agency, which request shall include an
explanation for the delay. No extension of the Audit Deadline shall exceed ninety (90)
days.
6.3 Agency shall promptly resolve all audit matters to the satisfaction of RCTC.
6.4 If Agency fails to complete the audit by the Audit Deadline or by the date of
any authorized extension, or if Agency fails to promptly resolve all audit matters to the
satisfaction of RCTC, RCTC shall have the right, in addition to any other rights or
remedies hereunder, to suspend performance under this Agreement.
6.5 Agency may be subject to an audit by SCAQMD or its authorized
representative to determine if the MSRC Funds were spent for the reduction of pollution
from motor vehicles pursuant to the Clean Air Act of 1988. Agency shall comply with any
and all audit requirements of SCAQMD.
7. General Provisions.
7.1 Relationship of Parties. Agency is solely responsible for the Project. This
Agreement does not create a joint venture or any partnership between Agency and
RCTC. Agency and any persons or entities retained by Agency or any contractor of
Agency shall be retained on an independent contractor basis and shall not be employees
or agents of RCTC.
7.2 Termination of Agreement.
A. RCTC may, by written notice to Agency terminate the whole or any
part of this Agreement at any time, with or without cause, by giving written notice to
Agency of such termination, and specifying the effective date th ereof. Agency may not
terminate this Agreement except for cause. Upon receipt of notice of termination, Agency
shall immediately cease expenditure of MSRC Funds conveyed pursuant to this
Agreement and promptly return all unexpended MSRC Funds to RCTC or a s RCTC may
direct.
B. In the event this Agreement is terminated in whole or in part as
provided in subsection A of this Section, RCTC may procure, upon such terms and in
such manner as it may determine appropriate, services similar to those terminated.
C. If this Agreement is terminated as provided in subsection A of this
Section, RCTC may require Agency, when implementing a Project, to provide to RCTC
all finished or unfinished documents, including but not exclusive to, data, studies,
drawings, and reports, prepared by Agency in connection with the performance of this
Agreement.
7.3 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:
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To RCTC: Riverside County Transportation
Commission
4080 Lemon Street, Third Floor
P. O. Box 12008
Riverside, California 92502-2208
Attn: Anne Mayer, Executive Director
To Agency: City of Riverside
Public W orks Department
3900 Main Street, 4th Floor
Riverside, CA 92522
Attn: _______
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. Notice may also be provided via
electronic mail and shall be deemed made the date sent, provided that any notice sent
via electronic mail shall also be sent by U.S. mail, per the requirements set forth in the
foregoing sentence, within twenty-four (24) hours of the notice via electronic mail. Notice
sent via electronic mail that is not followed by notice sent via U.S. mail, as required in this
paragraph, shall not be considered notice for purposes of this Agreement.
7.4 Attorneys' Fees. If any party commences an action against the other 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’s reasonable attorneys' fees and costs
of suits.
7.5 Entire Agreement. This Agreement contains the entire Agreement of the
parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified in writing, sign ed
by both parties.
7.6 Governing Law. This Agreement shall be governed by the laws of the State
of California. Venue shall be in Riverside County.
7.7 Time of Essence. Time is of the essence for each and every provision of
this Agreement.
7.8 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties, and shall not be assigned by Agency without the
prior written consent of RCTC.
7.9 Administration.
A. RCTC's Executive Director, or his or her designee, shall administer
this Agreement on behalf of RCTC.
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B. Agency hereby designates the [City Manager], or his or her
designee, to act as its representative to administer this Agreement on behalf of Agency
("Agency's Representative"). Agency's Representative shall have full authority to
represent and act on behalf of Agency for all purposes under this Agreement.
7.10 Severability. If any term, provision, covenant or condition of this Agreement
is held to be invalid, void or otherwise unenforceable, to any extent, by any court of
competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and
each term, provision, covenant or condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
7.11 Counterparts. This Agreement may be executed and delivered in any
number of counterparts, each of which, when executed and delivered shall be deemed
an original and all of which together shall constitute the same agreement. Facsimile
signatures shall be considered originals.
7.12 Incorporation of Recitals. The Recitals set forth above are true and correct
and are incorporated into this Agreement by reference as though fully set forth herein.
7.13 Incorporation of Exhibit. This Agreement contains two (2) exhibits (Exhibit
“A” and Exhibit “B”) which are attached hereto and incorporated into this Agreement by
reference.
7.14 Legal Authority. RCTC and Agency represent and warrant that the persons
signing below on behalf of each party is duly authorized to execute this Agreement on
behalf of its respective party and that, by so executing, the parties hereto are formally
bound to the provisions of this Agreement.
[Signatures on following page]
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SIGNATURE PAGE
TO
MSRC FUNDING COOPERATIVE AGREEMENT
FOR RIVERSIDE HUNTER PARK/UCR METROLINK STATION IMPROVEMENTS
IN WITNESS WHEREOF, the parties hereto have executed the Agreement on
the Effective Date.
RCTC:
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By: _________________________
Anne Mayer, Executive Director
AGENCY:
THE CITY OF RIVERSIDE
By: __________________________
Title: ________________________
APPROVED AS TO FORM:
By: _________________________
Best Best & Krieger LLP
Counsel to the Riverside County Transportation
Commission
APPROVED AS TO FORM:
By: __________________________
Title: ________________________
ATTEST:
By: __________________________
Title: ________________________
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Exhibit A
17336.00600\29281559.3
EXHIBIT "A"
SCOPE OF WORK AND PROJECT LOCATION
[map attached behind this page]
86
Exhibit B
17336.00600\29281559.3
EXHIBIT "B"
FUNDING PLAN
[attached behind this page]
87
AGENDA ITEM 10
Agenda Item 10
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: October 24, 2016
TO: Western Riverside County Programs and Projects Committee
FROM: Brenda Ramirez, Management Analyst
Sheldon Peterson, Rail Manager
THROUGH: Robert Yates, Multimodal Services Director
SUBJECT: OCTA 2016 Angels Express Agreement
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve Agreement No. 17-25-014-00 with the Orange County Transportation Authority
(OCTA) for the cost sharing of the 2016 Angels Express Service for an initial one-year term
in an amount not to exceed $33,176, with additional option years for the 2017 season
and beyond upon mutual written agreement by both agencies in an amount not to exceed
an annual 5 percent increase;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement, including option years, on behalf of the Commission; and
3) Forward to the Commission for final action.
BACKGROUND INFORMATION:
The Commission is actively promoting and partnering with various agencies to provide public
transportation options to special events. Through the successful partnership with OCTA, the
Commission has been able to provide Riverside County residents with the option of using the
Angels Express Service, a commuter rail train operated by Metrolink, to attend selected Angels
baseball games. The service, which is offered at $7 round trip, provides round-trip services to
selected Friday home games at Angel Stadium via the Metrolink Inland Empire-Orange County
Line. The popularity of this service has previously allowed OCTA to obtain Mobile Source Air
Pollution Reduction Review Committee grant funding for the service. For the 2016 season, the
grant was not available; therefore, the Commission and OCTA will have to pay Metrolink for the
operating costs of the service.
Ridership data collected has continued to show a year over year growth since the inception of
the service. Ridership counts have indicated a 110 percent increase over last year’s ridership on
those special round trips. Agreement No. 17-25-014-00 authorizes staff to continue cost sharing
the operations of this service under the agreement terms, and the Commission agrees to
reimburse OCTA up to $33,176 for the service provided during the 2016 season and in
subsequent years subject to a 5 percent increase.
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Agenda Item 10
Financial Information
In Fiscal Year Budget: Yes Year: FY 2016/17 Amount: $33,176
Source of Funds: Local Transportation Fund funds Budget Adjustment: No
GL/Project Accounting No.: 004014 86101 00000 0000 103 25 86101
Fiscal Procedures Approved: Date: 10/17/2016
Attachment: Draft OCTA Agreement No. 17-25-014-00
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AGENDA ITEM 11
Agenda Item 11
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: October 24, 2016
TO: Western Riverside County Programs and Projects Committee
FROM: Brenda Ramirez, Management Analyst
Sheldon Peterson, Rail Manager
THROUGH: Robert Yates, Multimodal Services Director
SUBJECT: Transit Transfer and License Agreements
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve Agreement No. 17-25-015-00 with Omnitrans for reimbursement of transit
transfers effective January 1, 2017, for an indefinite term cancelable by either party with
a 30-day notice in an amount approximating $15,000 annually;
2) Approve Agreement No. 17-25-033-00 with Megabus Northeast LLC (Megabus) for use of
the Commission’s Riverside Downtown rail station for a three-year term, with two two-
year options to extend the agreement, in an estimated revenue amount of $117,245 for
the full term of all the options;
3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreements, including option years, on behalf of the Commission; and
4) Forward to the Commission for final action.
BACKGROUND INFORMATION:
In a continued effort to provide ease of multimodal connections at the Commission’s Riverside-
Downtown Station, the Commission desires to enter into agreements with Omnitrans and
Megabus. Both operators will provide vital connections to passengers and patrons using the
Commissions station as a transportation network hub.
The Commission currently has transfer agreements with local public transit providers such as
Riverside Transit Agency, SunLine Transit Agency, and the city of Corona. The transfer
agreements provide the Commission the ability to partner with Metrolink and provide
reimbursements to the local transit providers for transferring passengers that present valid one-
way, round-trip, seven day passes or monthly Metrolink passes. This facilitates free transfers for
the passengers to and from a Metrolink station. The agreement with Omnitrans will be effective
January 1, 2017, in time for the next Omnitrans schedule change with the initial route to be a
direct connection between the Riverside-Downtown Station and the San Bernardino Depot. The
anticipated annual cost for these transfers is projected at $15 ,000, and the term is open until
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Agenda Item 11
either party requests to cancel the agreement with a 30-day notice. Adjustments to the rate and
acceptable routes can be made through subsequent annual amendments.
In addition to public transit providers using the Commission’s Riverside-Downtown Station, other
providers such as Amtrak and Megabus require license agreements to use the Commission’s
facilities. Megabus provides its customers a non-stop trip from the Commission’s Riverside-
Downtown Station to Las Vegas, and the current agreement expires December 31, 2017.
Beginning January 1, 2017, Agreement No. 17-25-033-00 sets a first-year $1,200 monthly rate of
compensation payable to the Commission to offset maintenance and security costs at the station.
The monthly rate will be increased by 5 percent annually. After the initial three-year term, with
the agreement may be extended by two two-year options.
Financial Information
In Fiscal Year Budget: Yes Year: FY 2016/17 Amount: $15,000 Omnitrans
$14,400 Megabus
Source of Funds: Local Transportation Fund funds;
license fees Budget Adjustment: No
GL/Project Accounting No.: 004014 86101 00000 0000 103 25 86101 $15,000 (expenditures)
244001 416 41608 0000 103 24 41608 $14,400 (revenues)
Fiscal Procedures Approved: Date: 10/17/2016
Attachments:
1) Draft Omnitrans Transfer Agreement No. 17-25-015-00
2) Draft Megabus License Agreement No. 17-25-033-00
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17336.00013\29140550.3
1
DRAFT
INTERAGENCY FIXED ROUTE TRANSFER AGREEMENT
BETWEEN THE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AND
OMNITRANS
THIS INTERAGENCY FIXED ROUTE TRANSFER AGREEMENT is effective as of this ___
day of __________ 2016 by and between Omnitrans, 1700 West Fifth Street, San Bernardino, CA
92411 (hereinafter referred to as “OMNITRANS”), and Riverside County Transportation
Commission, 4080 Lemon Street, 3rd Floor, Riverside, California 92501, a public agency
(hereinafter referred to as “RCTC”). OMNITRANS and RCTC are sometimes referred to herein,
collectively, as the “Parties”.
RECITALS
A. RCTC and OMNITRANS desire to enter into this Agreement to define RCTC’s financial
commitments, and OMNITRANS’ commitments related to funding to be provided by
RCTC.
B. OMNITRANS, a Joint Powers Authority, provides fixed route services operating in the
San Bernardino Valley. OMNITRANS’ service area is bounded by the San Bernardino
Mountains to the north, the Los Angeles County Line to the west, the Riverside County
Line to the south, and the Yucaipa Valley on the east.
C. OMNITRANS provides public transportation services operating to, within, or through
Riverside County.
D. The purpose of this Agreement is to facilitate ridership by passengers originating on
OMNITRANS’ system and desiring to transfer to Metrolink commuter rail services.
E. OMNITRANS has an existing transfer agreement with the Southern California Regional
Rail Authority (SCRRA or METROLINK) that includes the Metrolink stations within this
Agreement.
F. The Parties desire to enter into this Agreement to facilitate transfers between the
transportation systems described herein and thereby provide greater convenience and
mobility for transportation users.
Now, therefore, in consideration of their mutual obligations set forth herein, the Parties agree as
follows:
1.Subject to paragraph 2 of this Agreement, OMNITRANS will accept v alid Metrolink fare
media as transfers having a value equal to OMNITRANS’ base fare on Route 215 between
all Route 215 bus stops between San Bernardino and Riverside as identified in Exhibit “A”.
ATTACHMENT 1
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2
2. OMNITRANS shall honor valid Metrolink fare media for a single local boarding along
OMNITRANS’ Route 215 bus stops between Riverside and San Bernardino, during the
period from one hour before to one hour after Metrolink’s service hours on Route 215,
under the following conditions.
a. One-way tickets valid for the date of travel will be honored on boardings from the
downtown Riverside Metrolink Station and San Bernardino Transit Center
following the extension of Metrolink to the San Bernardino Transit Center.
b. Round-trip tickets valid for the date of travel will be honored on boardings to and
from the downtown Riverside Metrolink Station or the San Bernardino Transit
Center following the extension of Metrolink to the San Bernardino Transit Center.
c. Seven-day passes will be honored on boardings to and from the downtown
Riverside Metrolink Station or the San Bernardino Transit Center following the
extension of Metrolink to the San Bernardino Transit Center if already validated on
the day of travel.
d. Monthly passes will be honored on boarding to and from the downtown Riverside
Metrolink Station or the San Bernardino Transit Center following the extension of
Metrolink to the San Bernardino Transit Center.
3. OMNITRANS shall be reimbursed by RCTC as provided herein at the rate of one-half of
one OMNITRANS base fare charge per boarding for which no fare was collected.
OMNITRANS’ current base fare is $1.75 and OMNITRANS will notify RCTC of base
fare changes, which will replace the current base fare. Pursuant to OMNITRANS’ transfer
agreement with SCRRA, the other half of the fare charge will be reimbursed by SCRRA.
4. For purposes of counting transferring passengers, the number of passengers transferring to
OMNITRANS from METROLINK or to METROLINK from OMNITRANS shall be
defined as the number of transferring passengers from whom no fare was collected by
OMNITRANS. OMNITRANS shall estimate the number of passengers transferring
between the OMNITRANS system and METROLINK service using 100 percent ridership
counts (farebox) conducted by OMNITRANS.
5. OMNITRANS shall submit quarterly invoices to RCTC for reimbursement for transfers.
OMNITRANS shall not seek reimbursement from RCTC for any fare, or portion thereof,
which is to be paid by SCRRA under OMNITRANS’ transfer agreement with SCRRA.
Invoices shall specify the number of transfers to and from METROLINK, and the agreed
reimbursement rate specified in paragraph 3 above. Invoices shall reference the agreement
number and shall be submitted as follows:
To RCTC: Riverside County Transportation Commission
Attn: Rail Department
4080 Lemon Street, 3rd Floor
Riverside, CA 92501
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3
6. Complete and accurate invoices submitted by the 30th day following the end of the quarter
shall be paid within thirty (30) days of receipt of the invoice.
7. Disagreements concerning the number of passengers transferring between METROLINK
and OMNITRANS services shall be resolved by making a good faith effort to create a joint
survey team, to include authorized representative of each of RCTC and OMNITRANS,
whose task would be to conduct a passenger survey to determine transfer rates.
8. To facilitate effective operations and communications, the results of the transfer program
will be reviewed quarterly by RCTC and OMNITRANS during the first year of this
Agreement.
9. Each Party shall cooperate in the dissemination of information to the public regarding the
transfer document and the services offered by the other Party.
10. Each Party shall notify the other in advance of implementing plans for changes in its
operations and/or services, which may affect the other Party’s operations and/or services.
11. Each Party shall notify the other Party within thirty (30) days of adopting any fare changes
that might affect reimbursement rates or any aspect of transfer privileges.
12. OMNITRANS agrees to indemnify and hold RCTC harmless from and against all losses,
damages, actions and expenses (including attorney’s fees) on account of bodily injury to
or death of any person or damage to or loss of use of property incident to or arising from
operations of OMNITRANS under the terms of this Agreement.
13. Each Party reserves the right to cancel this Agreement upon thirty (30) days prior written
notice to the other Party.
14. Notices hereunder shall be sent to the Parties as follows:
TO OMNITRANS: Omnitrans
1700 West Fifth Street
San Bernardino, CA 92411
Attention: Jeremiah Bryant
Service Planning Manager
TO RCTC: Riverside County Transportation Commission
4080 Lemon Street, 3rd Floor
Riverside, CA 92501
Attention: Sheldon Peterson
Rail Manager
15. This Agreement constitutes the entire agreement between the Parties with respect to any
matter referenced herein and supersedes any and all other prior writings and oral
negotiations. This Agreement may be modified only in writing by the Parties.
16. This Agreement is made and entered into in the State of California and in all respects is to
be interpreted, enforced and governed by and under the laws of California.
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17. This Agreement may be executed in counterparts, each of which will constitute an original.
Facsimile signatures may be used to effectuate and bind the Parties to the terms and
conditions of this Agreement, and shall have the same force and effect as original
signatures.
18. Each of the individuals executing this Agreement represents that he or she is duly
authorized to bind and act on behalf of such Party.
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5
DRAFT
INTERAGENCY FIXED ROUTE TRANSFER AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement No. XXXXXX
to be executed on the date first above written.
OMNITRANS RIVERSIDE COUNTY TRANSPORTATION
COMMISSION
By:
Chief Executive Officer
By:
Executive Director
APPROVED AS TO FORM:
By:
General Counsel
APPROVED AS TO FORM
By:
Best Best & Krieger LLP
General Counsel to the Riverside County
Transportation Commission
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6
EXHIBIT “A”
“Insert Copy of Route”
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17336.00603\7669938.2
LICENSE AGREEMENT
Between
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
and
MEGABUS NORTHEAST, LLC
ATTACHMENT 2
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2
LICENSE AGREEMENT
between
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
and
MEGABUS NORTHEAST, LLC
THIS LICENSE AGREEMENT (this "Agreement"), made and entered into this __ day of
______________, by and between RIVERSIDE COUNTY TRANSPORTATION
COMMISSION (“COMMISSION”), a county transportation commission with its principal office
for the transaction of business at 4080 Lemon Street, 3rd Floor, Riverside, CA 92501 and
MEGABUS NORTHEAST, LLC ("MEGABUS"), a Delaware limited liability company with its
principal office for the transaction of business at 160 S. Route 17 North, Paramus, New Jersey
07652.
WITNESSETH:
WHEREAS, COMMISSION owns and operates the Riverside Downtown Station (the
"Station") located at 4066 Vine Street, Riverside, CA; and
WHEREAS, MEGABUS is in the business of providing, for transportation purposes, the
following services: private fixed route passenger bus service; and
WHEREAS, it is the desire of COMMISSION and MEGABUS by this Agreement to set
forth the terms and conditions by which MEGABUS will provide such services at the Station;
NOW THEREFORE, for and in good consideration of the mutual covenants conditions,
and agreements hereinafter contained, it is hereby agreed by and between the parties as follows:
1. Premises. COMMISSION hereby grants to MEGABUS and MEGABUS accepts
from COMMISSION, upon the terms and conditions set forth in this Agreement, a non-exclusive
license to enter upon the certain roadways and parking areas located perpendicular to the front of
the Station, which roadways and bus loading areas are more accurately depicted on Exhibit "A"
attached hereto and made a part hereof (the "Licensed Premises"). COMMISSION reserves all
rights to the use of the Licensed Premises in its sole discretion.
2. Term.
(a) Initial Term. The term of this Agreement shall be for three years,
commencing on the date hereof (the "Commencement Date") and terminating on the first (1st)
anniversary of such date, unless terminated sooner pursuant to the provisions of this Agreement.
The parties may agree to another Commencement Date by both signing a memorandum to such
effect.
(b) Option to Extend. COMMISSION hereby grants to MEGABUS the option
to extend the term of this Lease for three (3) additional periods of two (2) year each following the
initial term set forth in paragraph 2(a) above (such periods being herein referred to as the "Renewal
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Term(s)"), upon condition that at the date of exercise of the option to extend, MEGABUS is not
and has not been in default in the performance of any of its obligations under this Agreement
beyond any curing thereof within any applicable period of notice and grace. With respect to each
separate renewal term, MEGABUS shall provide written notice to COMMISSION, within 180
days prior to the end of the term then in effect, of its intent not to exercise each Renewal Term.
Otherwise renewal under these Agreement terms and conditions will be automatic provided that
MEGABUS is not in default of any term or condition of this Agreement beyond any applicable
cure period. "Term", when use herein, includes the Initial Term and all Renewal Terms opted for
by Lessee.
3. Use.
(a) MEGABUS covenants and agrees that it will enter upon and use the
Licensed Premises solely for the non-exclusive purpose of embarking and disembarking of
passengers of the bus transportation service operated by MEGABUS, and for such other activities
as may be incidentally related to the provision of such service, and for no other use. MEGABUS
acknowledges and agrees that neither it, nor its agents, employees nor affiliates nor its vehicles are
or shall be permitted to enter upon and/or use any other portion of the Station, including, but not
limited to, any interior portion of structures constituting a portion of the Station, unless such entry
and use is specifically set forth herein or except as the same may be used by the general public.
MEGABUS further agrees that the entry upon and use of the Licensed Premises as contemplated
herein shall occur no more frequently than eight (8) times per day for a duration of not more than
twenty (20) minutes per entry upon the Licensed Premises, at the times set forth on Schedule 3(a)
attached hereto and made a part hereof, which schedule may be amended from time-to-time upon
the mutual agreement of the parties. In the event MEGABUS shall desire to enter upon the
Licensed Premises more or less frequently than as set forth herein, it shall not do so without having
first obtained the written consent of COMMISSION to such increased or decreased use, which
consent shall not be unreasonably withheld or delayed.
(b) MEGABUS shall, at its own cost and expense, promptly observe and
comply with all applicable laws, ordinances, requirements, orders, directives, rules and regulations
of the federal, state, county, municipal or town governments and of all applicable governmental
authorities, including, without limitation, all rules and regulations of COMMISSION concerning
the operation and use of the Station or affecting its entry upon and conduc t of its business upon
the Licensed Premises, whether the same are in force at the commencement of the term of this
Agreement or may be in the future passed, enacted or directed.
(c) MEGABUS shall not use or allow the Licensed Premises, or any part
thereof, to be used or occupied for an unlawful or non-transportation purpose or in violation of the
Rules and Regulations of COMMISSION affecting the Licensed Premises or in any manner which
may interfere with use of the Station for commuter rail purposes, constitute a nuisance, public or
private, or make void or voidable any insurance then in force with respect thereto, or for any
purpose or any manner which would cause a default under this Agreement.
(d) MEGABUS covenants and agrees that it is fully aware that the Station is a
public facility and as such, is used by the general public; and that COMMISSION shall retain
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absolute general management and supervisory control over the Station. MEGABUS will not
discriminate against any employee or applicant, customer or invitee of employment because of
race, creed, color, sex, disability or national origin.
4. Method of Operation. In the performance of its obligations and in the conduct of
its business, MEGABUS shall:
(a) Provide bus transportation services which are necessary to meet the needs
of the transportation public, provided such services are in conformance with the terms of this
Agreement.
(b) Charge reasonable and competitive prices for all services offered.
(c) Provide methods and hours of operation, standards of management and
employees, standards of quality, service, maintenance and repairs to COMMISSION for prior
written approval which consent shall not be unreasonably withheld or delayed.
(d) Upon reasonable objection from COMMISSION or its representative
concerning the conduct, demeanor or appearance of any officer, employee, agent, representative
or contractor of MEGABUS, immediately take all reasonable remedial steps necessary to
overcome the objection.
(e) Cooperate with COMMISSION in all matters relating to the security, as
well as the safe and efficient operation of the Station by COMMISSION and shall require its
employees to do so.
(f) Agree that all advertising from, at, or relating' to the Station is under the
direct control of COMMISSION. COMMISSION retains all rights as to placement of signs, street
furniture, architectural embellishments, public relations efforts and any other advertising effort in
any way related to the Station and its intended use.
5. Fees. MEGABUS covenants and agrees to pay to COMMISSION all amounts
indicated below on the first day of each calendar month without set-off, deduction or diminution,
the first such payment to include also any prorated annual Minimum Fees for the period from the
date of the commencement of the Term to the first day of the first full calendar month in the Term.
(a) Minimum Fees. The annual minimum fee ("Minimum Fee") for the entire
Licensed Premises, regardless of the number of times per day during any given month that
MEGABUS may enter upon the Licensed Premises, shall be Fourteen Thousand Four Hundred
and No/100 Dollars ($14,400.00). The Minimum Fee shall be paid in equal, consecutive monthly
installments in the amount of One Thousand Two Hundred and No/1 00 Dollars ($1,200.00) each
on the first (1st) day of each month of the term hereof. Notwithstanding the foregoing, the
Minimum Fee payable hereunder may be adjusted upon the mutual agreement of the parties hereto.
Notwithstanding the foregoing, the Minimum Fee for the entire Licensed Premises during each
Renewal Term, if any, shall be equal to the amount of the Minimum Fee paid during the
immediately preceding term, plus Five Percent (5.00%), calculated cumulatively.
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(b) Adjustment to Minimum Fee. In the event MEGABUS shall desire to enter
upon the Licensed Premises on more or less than eight (8) occasions per day during any given
month during the Term hereof, and shall have received COMMISSION’s prior consent to such
increased or decreased usage of the Licensed Premises, MEGABUS shall pay to COMMISSION
an adjusted fee which shall be determined in accordance with the formula set forth on Schedule
5(b) attached hereto and shall be based on the number of occasions per day that MEGABUS
intends to enter upon the Licensed Premises commencing on the first day of the first month
immediately following the month in which MEGABUS requests and receives COMMISSION's
consent to such increased or decreased usage ("Adjusted Minimum Fee"). Notwithstanding the
foregoing, any adjustments to the Minimum Fee shall at all times be subject to the prior approval
of COMMISSION, which approval shall not be unreasonably withheld or delayed.
(c) No Right of Offset; No Reimbursement. MEGABUS has no right of offset
or counterclaim for any of the amounts due COMMISSION under this Agreement. Furthermore,
MEGABUS shall not be entitled to any reimbursement of or credit for amounts paid in advance to
COMMISSION hereunder for rights of entrance upon the Licensed Premises which are not
actually utilized by MEGABUS.
(d) Late Charge. Any installment of the Minimum Fee or any Adjusted
Minimum Fee not received within ten (10) days from the date when it is due shall be subject to a
late charge of five percent (5%) of such installment.
6. Taxes. MEGABUS shall pay before they become delinquent any and all taxes that
are lawfully due and payable by MEGABUS to any governmental body by reason of the operation
of MEGABUS' business or use of the Licensed Premises or the Station. COMMISSION is exempt
from the payment of real estate taxes for premises held for transportation purposes as set forth
under California state law. COMMISSION and MEGABUS shall use their best efforts to preserve
this exemption and to cooperate fully with each other in such regard.
7. [Reserved].
8. Common Areas.
(a) Common Areas. The term "Common Areas" shall mean the exterior areas
and facilities within or upon the Station which are: (i) not leased to a tenant, or (ii) by nature not
leasable to a tenant. Common Areas shall include but shall not be limited to all parking areas and
facilities, roadways, driveways, entrances and exits sidewalks, located within or outside the Station
property, COMMISSION for the common or joint use and benefit of all tenants in the Station, their
employees, customers and invitees. COMMISSION grants to MEGABUS' customers a
nonexclusive license to use the Common Areas in common with others during the Term, subject
to the exclusive control and management thereof at all times by COMMISSION and subject,
further, to all rights of COMMISSION as set forth herein. Nothing herein shall permit MEGABUS,
its agents or employees to use the Common Areas without the prior consent of COMMISSION,
which consent shall not be unreasonably withheld or delayed.
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(b) Management and Operation of Common Areas. COMMISSION will
operate and maintain or will cause to be operated and maintained, the Common Areas, in a manner
deemed by COMMISSION to be reasonable and appropriate and in the best interests of the Station.
COMMISSION will have the right: (i) to establish, modify and enforce non-discriminatory rules
and regulations with respect to the Common Areas; (ii) to enter into, modify and terminate
easements and other agreements pertaining to the use and maintenance of the Common Areas and
any portions thereof; (iii) to close all or any portion of the Common Areas to such extent as may,
in the opinion of COMMISSION, be necessary to prevent a dedication thereof or the accrual of
any rights to any person or to the public therein; (iv) to close temporarily any or all portions of the
Common Areas; and (v) to do and perform such other acts in and to said areas and improvements
as, in the exercise of good business judgment, COMMISSION shall determine to be advisable.
9. Maintenance and Repairs. COMMISSION shall maintain and keep the Station in
good repair. Notwithstanding the foregoing, MEGABUS shall repair, at its sole expense, any
damage to the Station including cleaning oil or fuel spills, the Licensed Premises, the buildings
and/or any appurtenances thereto caused by MEGABUS, its employees, agents or invitees.
MEGABUS shall not be entitled to any partial or total abatement of fees for periods during which
repairs are required to be made, whether such repairs are the responsibility of COMMISSION or
MEGABUS.
10. Access to the Licensed Premises. MEGABUS agrees that COMMISSION shall
have such rights to enter upon the Licensed Premises, including rights of ingress and egress, as
shall be necessary or desirable to enable COMMISSION to exercise its powers, rights, duties and
obligations as are set forth in this Agreement or as COMMISSION may otherwise deem
appropriate. A coordinated plan will be developed to identify the available bus loading areas for
this service. COMMISSION shall further have the right to enter and grant licensees the right to
enter the Licensed Premises for any purpose which COMMISSION may deem necessary or
desirable, including, without limitation, to make structural repairs to the Station or the Licensed
Premises or any other repairs for which COMMISSION is responsible, or for exhibiting the
Licensed Premises to prospective purchasers, mortgagees, governmental representatives or
tenants, and to inspect the Licensed Premises to determine whether MEGABUS' use of the
Licensed Premises is in conformance with MEGABUS' covenants. This right of inspection shall
include but not be limited to the right, on reasonable notice and during normal hours of operation,
to conduct interviews of MEGABUS' personnel, if any.
11. Alterations. MEGABUS shall have no right or authority to and shall make no
alterations, additions or improvements in or to the Licensed Premises.
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12. Indemnification and Defense.
(a) Indemnification. MEGABUS hereby agrees to indemnify, assume all
liability for and hold harmless the COMMISSION and its officers, employees, agents and
representatives, to the maximum extent allowed by law, from all actions, claims, suits, penalties,
obligations, liabilities, damages to property, costs and expenses (including, without limitation, any
fines, penalties, judgments, actual litigation expenses and experts’ and actual attorneys’ fees),
environmental claims or bodily and/or personal injuries or death to any persons, arising out of or
in any way connected to MEGABUS’ entry onto t he Station or the Licensed Premises or the acts
or omissions of MEGABUS in connection with or arising from the performance of MEGABUS’
activities pursuant to this Agreement or arising out of or in connection with such activities, whether
the foregoing is by MEGABUS or anyone directly or indirectly employed or under contract with
MEGABUS or acting on behalf of MEGABUS, and whether such damage or claim shall accrue
or be discovered before or after the termination of this Agreement.
The indemnity shall apply except in the case of the sole negligence or willful misconduct
of the COMMISSION, its officers, employees, agents or representatives, and is in addition to any
other rights or remedies under the law or under this Agreement.
(b) Defense. Upon written notice from COMMISSION, MEGABUS agrees to
assume the defense of any lawsuit, administrative action or other proceeding brought against
COMMISSION, its officials, officers, employees, agents and volunteers by any public body,
individual, partnership, corporation, or other legal entity, relating to any matter covered by this
Agreement for which MEGABUS has an obligation to assume liability for and/or to indemnify or
save and hold harmless the COMMISSION, its officers, employees, agents and representatives.
MEGABUS shall pay all the costs incident to such defense, including, but not limited to, attorneys’
fees, investigators’ fees, litigation expenses, settlement payments, and amounts paid in satisfaction
of judgments. Any and all lawsuits or administrative actions brought or threatened on any theory
of relief available at law, in equity or under the rules of any administrative agency shall be covered
by this Section, including, but not limited to, the theories of intentional misconduct, negligence,
breach of statute or ordinance, or upon any theory created by statute or ordinance, state or federal.
The indemnity and other rights afforded to the COMMISSION by this Section shall survive
the revocation or termination of this Agreement.
13. Insurance.
(a) At all times throughout the term of this Agreement, MEGABUS and its
subcontractors shall maintain and comply with the terms of insurance set forth on Exhibit “B”
attached hereto and made a part hereof (the "Insurance Requirements").
(b) MEGABUS hereby waives any and every claim for recovery from
COMMISSION for any and all loss of or damage to any vehicle owned, used or maintained by
MEGABUS or those in privity with MEGABUS (unless such loss or damage is shown to have
been caused by COMMISSION). MEGABUS further waives any claim for recovery from
COMMISSION for any and all loss of or damage to the Licensed Premises or to the contents
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thereof, which loss or damage is covered by valid and collectible physical damage insurance
policies, to the extent that such loss or damage is recoverable under said insurance policies.
Inasmuch as this waiver will preclude the assignment of any such claim or subrogation or
otherwise, MEGABUS agrees to give to each insurance company which has issued, or in the future
may issue, to its policies of physical damage insurance, written notice of the terms of this waiver,
and to have said insurance policies properly endorsed, if necessary, to prevent the invalidation of
said insurance coverage by reason of said waiver. MEGABUS shall require each sublessee or
assignee to include similar waivers of subrogation in favor of COMMISSION in the subleases or
assignments entered into with such sublessees or assignees.
14. Fire or Other Casualty. In the event that the Licensed Premises are rendered
wholly inaccessible and unuseable due to fire or other casualty, COMMISSION shall be entitled
to the proceeds of all applicable insurance maintained by COMMISSION and may, at its option:
(a) Terminate this Agreement by giving MEGABUS written notice thereof
within thirty (30) days from the date of said damage or destruction; or
(b) Repair or replace the Licensed Premises to substantially the same condition
as prior to the damage or destruction to the extent said insurance proceeds therefor are available
to COMMISSION.
If the Licensed Premises shall be damaged in part by fire or other casualty, but still
remains partially accessible and useable, COMMISSION shall, unless it determines in its sole
discretion that to do so in not in the best interests of the COMMISSION, repair the Licensed
Premises to substantially the same condition as prior to the damage to the extent of the proceeds
of insurance available to COMMISSION. During the period of such repairs and restorations, this
Agreement shall continue in full force and effect without abatement of fees.
15. Eminent Domain. In the event that all or any portion of the Licensed Premises
shall be taken by any governmental authority under the exercise of its right of eminent domain or
similar right (or by act in lieu thereof), all right, title and interest in and to any award granted (or
sums paid in lieu thereof) shall belong entirely to COMMISSION, and MEGABUS hereby assigns
to COMMISSION all of its interest, title or claim, if any, in and to such award (or sums paid in
lieu thereof), including, but not limited to, any part of such award attributable to MEGABUS'
interest in the Licensed Premises, if any. In the event of a partial taking, fees shall not be reduced
or otherwise abated, provided, however, that COMMISSION shall make commercially reasonable
efforts to provide alternative space upon which MEGABUS may conduct the activities
contemplated hereunder. In the event of a material or total taking, in COMMISSION's sole
opinion, COMMISSION retains the right to terminate this Agreement. In the event that this
Agreement is terminated pursuant to this Section, MEGABUS shall not have any claim against
COMMISSION for the balance of the unexpired term of this Agreement.
16. Default and Remedies.
(a) Any one or more of the following events shall constitute an "Event of
Default" hereunder:
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(i). If MEGABUS fails to pay any installment of minimum fees or
adjusted fees within ten (10) days after it is due;
(ii). If MEGABUS fails to remedy a default by it with respect to any of
the other covenants, conditions and agreements contained herein or in any rider, exhibit, or other
addendum hereto, within ten (10) days after notice thereof; provided, however, that in the event of
a default which does not involve the payment of money and which cannot reasonably be cured
within ten (10) days, MEGABUS shall not be in default of this Agreement if MEGABUS:
(A) gives written notice to COMMISSION within ten (10) days
after the aforesaid notice of default of MEGABUS' intent to cure;
(B) within said ten (10) day period, delivers evidence to
COMMISSION of the commencement of the cure;
(C) diligently and in good faith uses best efforts to continue said
cure; and
(D) completes said cure expeditiously;
(iii) Unless beyond the control of MEGABUS, if MEGABUS ceases its
entry upon and use of the Licensed Premises for a period of five (5) consecutive days or otherwise
ceases to conduct its business therein; or
(iv) If MEGABUS shall:
(A) apply for or consent to the appointment of or the taking of
possession by a receiver, liquidator, custodian or trustee of itself or of all or a substantial part of
its property;
(B) admit in writing its inability or be generally unable to pay its
debts as such debts become due;
(C) make a general assignment for the benefit of its creditors;
(D) commence a voluntary case under the Federal Bankruptcy
Code (as now or hereafter in effect);
(E) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding up, or composition or adjustment of
debts;
(F) fail to controvert in a timely or appropriate manner, or
acquiesce in writing to, a petition filed against itself in an involuntary case under such Bankruptcy
Code; or
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(v) If a proceeding or case shall be commenced without the application
or consent of MEGABUS in any court of competent jurisdiction seeking
(A) liquidation, reorganization, dissolution, winding up or
composition or adjustment of debts;
(B) the appointment of a trustee, receiver, liquidator, custodian
or the like of MEGABUS or of all or any substantial part of its assets; or
(C) similar relief under any law relating to bankruptcy,
insolvency, reorganization, winding up, or composition or adjustment of debts, and MEGABUS
fails to controvert such action or proceeding in a timely and appropriate manner, or an order,
judgment or decree approving or ordering any of the foregoing shall be entered and continued
unstayed and in effect for a period of thirty (30) days; or any order for relief against MEGABUS
shall be entered in an involuntary case under such Bankruptcy Code; and
(vi) Any representation or warranty made by MEGABUS herein, or in
any report, certificate, financial statement or other instrument furnished pursuant hereto or any of
the foregoing shall prove to be false, misleading or incorrect in any material respect as of the date
made.
(b) If an Event of Default shall occur, COMMISSION may, in addition to any
other right or rights which COMMISSION may have, serve a written five (5) days ' notice of
cancellation of this Agreement upon MEGABUS and upon the expiration of said five (5) days,
this Agreement and the term hereunder shall end and expire as fully and completely as if the date
of expiration of such five (5) day period were the day herein definitely fixed for the end and
expiration of this Agreement and the term thereof, and MEGABUS shall then quit and surrender
the Licensed Premises to COMMISSION and shall otherwise cease its use and entry upon the
Licensed Premises, but MEGABUS shall remain liable as hereinafter provided. If the five (5) day
notice of cancellation shall have been given and the term shall expire as aforesaid, or if any
execution or attachment shall be issued against MEGABUS or any of MEGABUS' property
whereupon the Licensed Premises shall be taken or occupied by someone other than MEGABUS,
then and in either of such events, COMMISSION may, without notice, re-enter the Licensed
Premises and terminate MEGABUS' and the legal representative of MEGABUS' or any other
users' of the Licensed Premises entry upon and use thereof by summary proceedings or otherwise
and remove their effects, if any should be located thereon, and hold the Licensed Premises as if
this Agreement had not been made, but MEGABUS shall remain liable hereunder as hereinafter
provided. COMMISSION reserves the right to store MEGABUS' effects at MEGABUS' expense.
(c) In case of any such default, re-entry, expiration and/or termination by
summary proceedings or otherwise
(i). All Minimum Fees, Adjusted Minimum Fees, and other sums then
to be paid by MEGABUS pursuant to this Agreement shall immediately become due thereupon
and be paid up to the time of such re-entry, termination and/or expiration, together with such
reasonable expenses as COMMISSION may incur for legal expenses, attorneys' fees, brokerage,
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and/or putting the Licensed Premises in good order;
(ii). COMMISSION may re-license use of the Licensed Premises or any
part or parts thereof, either in the name of COMMISSION or otherwise, for a term or terms, which
may at COMMISSION's option be less than or exceed the period which would otherwise have
constituted the balance of the term of this Agreement and may grant concessions or free fees;
and/or
(iii). MEGABUS or the legal representatives of MEGABUS shall also
pay COMMISSION as liquidated damages for the failure of MEGABUS to observe and perform
MEGABUS' covenants herein contained any deficiency between the fees and other sums hereby
reserved and/or covenanted to be paid and the net amount, if any, of the fees collected on account
of the licensing of the Licensed Premises for each month of the period which would otherwise
have constituted the balance of the term of this Agreement. In computing such damages, there shall
be added to the said deficiency such reasonable expenses as COMMISSION may incur in
connection with re-licensing, such as legal expenses, attorneys' fees, and for keeping the Licensed
Premises in good order. COMMISSION, at COMMISSION's option, may make such alterations,
repairs and replacements as are reasonably necessary or desirable for the purpose of re-licensing
the Licensed Premises; and the making of such alterations shall not operate or be construed to
release MEGABUS from liability hereunder as aforesaid. To the fullest extent permitted by law,
neither the failure or refusal of COMMISSION to re-license the Licensed Premises or any part or
parts thereof nor, in the event that the Licensed Premises are re-licensed, the failure of
COMMISSION to collect the fees under such re-licensing, shall release or affect MEGABUS'
liability for damages, and COMMISSION shall not in any way be liable for same, but, if
COMMISSION fails to collect such fees, MEGABUS is hereby authorized to collect the same and
apply the same to any indebtedness owing to COMMISSION. Any such damages shall be paid in
monthly installments by MEGABUS on the days specified in this Agreement and any suit brought
to collect the amount of the deficiency for any month or months shall not prejudice in any way the
rights of COMMISSION to collect the deficiency for any subsequent month or months by a similar
proceeding. Any such action may be an action for the full amounts of all fees then due or to be due
to, and all damages then suffered or to be suffered by COMMISSION. Mention in this Agreement
of any particular remedy shall not preclude COMMISSION from resorting to any other remedy,
in law or in equity. The foregoing remedies and rights of COMMISSION are cumulative.
17. Failure to Insist on Strict Performance. The failure of COMMISSION to insist,
in any one or more instances, upon a strict performance of any covenant, term, provision or
agreement of this Agreement shall not be construed as a waiver or relinquishment thereof, but the
same shall continue and remain in full force and effect, notwithstanding any law, usage or custom
to the contrary. The receipt by COMMISSION of fees with knowledge of the breach of any
covenant or agreement hereunder shall not be deemed a waiver of the rights of COMMISSION
with respect to such breach, and no waiver by COMMISSION of any provision hereof shall be
deemed to have been made unless expressed in writing and signed by COMMISSION.
18. Surrender of Licensed Premises.
(a) MEGABUS shall, upon the termination of this Agreement, by lapse of time or
otherwise, cease its entry upon and use of the Licensed Premises and shall return the Licensed
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Premises to COMMISSION in as good condition as it was on the Commencement Date, loss by
fire or other unavoidable casualty and reasonable wear and tear excepted. It is understood and
agreed that the exception made as to "loss by fire or other unavoidable casualty" does not include
damages, fires or casualties caused or contributed to by the act or neglect of MEGABUS, its
servants, agents, employees, invitees or licensees and not compensated for by insurance.
(b) Except for cessation upon the expiration or earlier termination of the term of this
Agreement, no cessation of MEGABUS' entry upon and use of the Licensed Premises shall be
valid or effective unless agreed to and accepted in writing by COMMISSION. The provisions of
this Section shall survive the termination or expiration of this Agreement.
19. Holding Over. Should MEGABUS fail to cease its entry upon and use of or to
otherwise vacate the Licensed Premises at the termination, expiration or cancellation hereof, such
holding over shall operate and be construed to be a license from month to month only, unless
otherwise agreed in writing, subject to the conditions and provisions of this Agreement and at
minimum fees equal to one hundred fifty percent (150%) of that paid by MEGABUS under this
Agreement for the period just ended. No such holding over or payment or acceptance of fees
resulting therefrom shall constitute or be deemed reconfirmation or renewal of this Agreement.
Nothing in this Section shall be construed as consent by COMMISSION to the entry upon and use
of the Licensed Premises after the expiration, cancellation or termination of this Agreement.
20. Expenses and Attorneys' Fees. In the event of litigation between the parties
hereto, the losing party shall pay to the other all reasonable attorneys' fees and expenses and all
other expenses which may be incurred by such party.
21. Obligations of MEGABUS. If MEGABUS fails to perform any of its obligations
hereunder, COMMISSION may, after three (3) days' notice to MEGABUS of its intention to do
so (but COMMISSION shall not be obligated to) perform same, and in such event, MEGABUS
shall reimburse COMMISSION for the cost thereof and said reimbursement shall be due and
payable upon demand by COMMISSION and shall bear interest at a rate which is the sum of
eighteen percent (18%), except that if such rate exceeds the maximum rate of interest allowed by
applicable statutes, the interest rate will be reduced to the maximum rate permitted by law.
22. Assignment.
(a) Except as otherwise set forth herein, neither MEGABUS, nor MEGABUS' legal
representatives or successors-in-interest by operation of law or otherwise, shall assign this
Agreement or permit the Licensed Premises or any part thereof to be used by others without the
prior written consent of COMMISSION, which consent shall not be unreasonably withheld or
delayed. Any consent by COMMISSION to any act of assignment shall be held to apply only to
the specific transaction thereby authorized and MEGABUS agrees to remain fully liable under the
Agreement even subsequent to such assignment. Such consent shall not be construed as a waiver
of the duty of MEGABUS or the legal representatives or assigns of MEGABUS, to obtain from
COMMISSION consent to any other or subsequent assignment, or as modifying or limiting the
rights of COMMISSION under the foregoing covenant by MEGABUS not to assign without such
consent. Any violation of any provision of this Agreement, whether by act or omi ssion, by any
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assignee or occupant, shall be deemed a violation of such provision by MEGABUS, it being the
intention and meaning of the parties hereto that MEGABUS shall assume and be liable to
COMMISSION for any and all acts and omissions of any and all assignees. If this Agreement shall
been assigned, COMMISSION may, and is hereby empowered to, collect fees from the assignee.
In such event, COMMISSION may apply the net amount received by it to the fees herein reserved,
and no such collection shall be deemed a waiver of the covenant herein against assignment, or the
acceptance of the assignee, undertenant or occupant as licensee, or a release of MEGABUS from
the further performance of the covenants herein contained on the part of MEGABUS.
The term "assign", as used herein, shall include but not be limited to:
1. An assignment of a part interest in this Agreement, as well as any
assignment from one co-licensee to another; and
2. An assignment, or conveyance, whether by operation of law or otherwise of
any principal of MEGABUS' interest herein. It also includes any transfer of ownership or control
of MEGABUS whether voluntarily, by operation of law or otherwise.
23. Federal, State, County and Local Law. MEGABUS shall comply at its own cost
and expense with all federal, state, county and local laws, ordinances, rules or regulations now or
hereinafter in force which may be applicable to MEGABUS' entry upon and use of the Licensed
Premises, including obtaining and paying for all licenses and permits necessary for t he operation
thereon and payment of all fees and charges assessed insofar as they are applicable thereto.
24. Environmental Matters.
(a) Compliance with Environmental Laws. MEGABUS covenants that the Licensed
Premises shall be kept free of Hazardous Materials, and neither MEGABUS, nor any occupant of
the Licensed Premises, shall use, transport, store, dispose of or in any manner deal with Hazardous
Materials on the Licensed Premises, except in compliance with all applicable federal, state and
local laws, ordinances, rules and regulations. MEGABUS shall comply and ensure compliance by
all occupants of the Licensed Premises, with all applicable federal, state and local laws, ordinances,
rules and regulations, and shall keep the Licensed Premises free and clear of any liens imposed
pursuant to such laws, ordinances, rules or regulations as a direct result of any action or inaction
on the part of MEGABUS. In the event that MEGABUS receives any notice or advice from any
governmental agency or any source whatsoever with respect to Hazardous Materials on, from or
accepting the Licensed Premises, MEGABUS shall immediately notify COMMISSION.
MEGABUS shall conduct and complete all investigations, studies, sampling and testing, and all
remedial actions necessary to clean up and remove all Hazardous Materials from the Licensed
Premises placed there as a direct result of any action or inaction on the part of MEGABUS in
accordance with all applicable federal, state and local laws, ordinances, rules and regulations. The
term "Hazardous Materials", as used in this Agreement, shall include, without limitation,
petroleum and petroleum products and derivatives, asbestos, radon, polychlorinated biphenyls
("PCBs"), urea formaldehyde foam insulation, explosives, radioactive mat erials, laboratory waste
and medical waste (including, without limitation, contaminated clothing, body fluids,
contaminated medical instruments and equipment, catheters, used bandages, gauze, needles and
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other sharps), and any chemicals, materials or substances designed or regulated as hazardous or as
toxic substances, materials or waste under any environmental law. Anything contained herein to
the contrary notwithstanding, MEGABUS shall have no liability under this Section 24 for
contamination shown to have been present prior to the date hereof.
(b) Notices. MEGABUS shall immediately notify COMMISSION in writing of:
(i). Any enforcement, clean-up, removal or other governmental or regulatory
action instituted, completed or threatened pursuant to any Hazardous Materials laws;
(ii). Any claim made or threatened by any person against MEGABUS or the
Licensed Premises relating to damage, contribution, cost, recovery, compensation, loss or injury
resulting from or claimed to result from any Hazardous Materials actually handled by MEGABUS;
(iii). Any reports made to any environmental agency arising out of or in
connection with any Hazardous Materials actually handled by MEGABUS on the Licensed
Premises; and
(iv). Any reports made to any environmental agency arising out of or in
connection with any Hazardous Materials actually handled by MEGABUS in, on or removed from
the Licensed Premises, including any complaints, notices, warnings, reports or asserted violations
in connection therewith. MEGABUS shall also supply to COMMISSION as promptly as possible,
and in any event within five (5) business days after MEGABUS first received or sends the same,
copies of all claims, reports, complaints, notices, warnings, or asserted violations relating in any
way to Hazardous Materials actually handled by MEGABUS on the Licensed Premises, or
MEGABUS' use thereof. MEGABUS shall promptly deliver to COMMISSION copies of
hazardous waste manifests reflecting the legal and proper disposal of all Hazardous Materials
removed from the Licensed Premises by MEGABUS.
The obligations and liabilities of MEGABUS under this Article shall survive the
expiration or earlier termination of this Agreement.
25. Assumption of Risk and Waiver. To the maximum extent allowed by law,
MEGABUS releases COMMISSION from and assumes any and all risk of loss, damage or injury
of any kind to any person or property, including without limitation, the Station, the Licensed
Premises, COMMISSION's property and any other property of, or under the control or custody of
MEGABUS, which is on or near the Station or the Licensed Premises. MEGABUS’ assumption
of risk shall include, without limitation, loss or damage caused by defects in any structure or
improvement on the Station or the Licensed Premises, accident or fire or other casualty on the
Station or the Licensed Premises, or electrical discharge and noise or vibration resulting from the
transit operations on or near the Station or the Licensed Premises. The term "COMMISSION" as
used in this Section shall include any other persons or companies employed, retained or engaged
by COMMISSION. MEGABUS, on behalf of itself and its Personnel, as a material part of the
consideration for this Agreement, hereby waives all claims and demands against the
COMMISSION for any such loss, damage or injury of MEGABUS and/or its Personnel. In that
connection, MEGABUS waives, for itself and its Personnel, the benefit of California Civil Code
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Section 1542, which provides as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his settlement with the debtor.
_______
MEGABUS Initials
The provisions of this Section shall survive the termination of this Agreement. As
used in this Section, "Personnel" means the MEGABUS, or its officers, directors, affiliates, or
anyone directly or indirectly employed by MEGABUS or for whose acts MEGABUS is liable.
26. Miscellaneous.
(a) This Agreement shall inure to the benefit of and shall be binding upon
COMMISSION and MEGABUS and their respective successors and assigns.
(b) This Agreement shall be governed by and construed in accordance with the
laws of the State of California, with venue in Riverside County.
(c) It is expressly understood that this Agreement does not in any way
whatsoever grant or convey any permanent easement, lease, fee or other interest in the Licensed
Premises to MEGABUS. This Agreement is not exclusive and the COMMISSION specifically
reserves the right to grant other rights of entry within the vicinity of the Licensed Premises.
(d) All notices, certificates or other communications hereunder shall be
sufficient if sent by registered or certified United States mail, postage prepaid, addressed, if to
COMMISSION, to 4080 Lemon Street, 3rd Floor, Riverside, CA 92501, Attention: Executive
Director, with a copy to Steve DeBaun, Esq., Best, Best & Krieger LLP, 3390 University Avenue
5th Floor, Riverside, CA 92501, or to such other person(s) or address(es) as COMMISSION may
hereafter direct by giving notice as provided herein, with a copy sent to COMMISSION's general
counsel at the address set forth above; to MEGABUS, at the address set forth at the beginning of
this Agreement, or to such other person or address as MEGABUS may hereafter direct by giving
notice as provided herein.
(e) This Agreement shall completely and fully supersede all other prior
understandings or agreements, both written and oral, between COMMISSION and MEGABUS
relating to the use of the Licensed Premises.
(f) If any clause, provision or section of this Agreement shall be ruled invalid
by any court of competent jurisdiction, the invalidity of such clause, provision or section shall not
affect any of the remaining provisions hereof.
(g) This Agreement may be simultaneously executed in several counterparts,
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16
each of which shall be an original and all of which shall constitute but one and the same instrument.
(h) The section and other headings in this Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit or describe the scope or intent
of any provision hereof.
(i) Nothing herein contained is intended, or shall be construed, as in any way
creating or establishing the relationship of co-partners between the parties hereto or as constituting
MEGABUS as the agent or representative of COMMISSION for any purpose or in any manner
whatsoever.
(j) The terms “termination”, “expiration”, “cancellation” and “revocation”
may be used herein, interchangeably, and use of one or more of the foregoing terms, and not the
other(s), shall not be interpreted to alter of limit any provision hereof.
(k) COMMISSION represents and warrants that its Chairman or Executive
Director has full authority to execute this Agreement and to bind COMMISSION.
27. Force Majeure. This Agreement and obligation of MEGABUS to pay fees and
adjusted fees hereunder and to perform all of the other covenants and agreements hereunder on the
part of MEGABUS to be performed shall not be affected, impaired or excused because
COMMISSION is unable to supply or is delayed in supplying any service expressly or impliedly
to be supplied or is unable to make or is delayed in making any repairs, additions or alterations if
COMMISSION is prevented or delayed from so doing by reason of a strike or labor trouble, or
governmental preemption in connection with a national emergency or in connection with any rule,
order or regulation of any department or subdivision thereof or of any governmental agency, or by
reason of the condition of supply and demand which have been or are affected by war or other
emergency or by any other condition beyond the control of COMMISSION.
28. Relocation. At any time during the term hereby granted, COMMISSION may elect
to relocate the Licensed Premises, either permanently or temporarily, on sixty (60) days' notice to
MEGABUS to other similar location. In case of any such relocation, this Agreement shall have no
force or effect with respect to the Licensed Premises herein demised, and all the terms, covenants
and conditions hereof shall apply to the space in which MEGABUS shall be relocated.
29. Rules and Regulations. MEGABUS agrees to follow the rules and regulations
promulgated by COMMISSION as the same may be amended or changed from time to time.
COMMISSION rules and regulations shall be deemed incorporated herein by reference and made
a part hereof.
30. Termination.
(a) Notwithstanding any other provision contained herein, COMMISSION
may terminate this Agreement if any one or more of the following events occur:
(i). MEGABUS shall become insolvent, or shall seek the benefit of any
present or future insolvency statute, or shall make a general assignment for the benefit of creditors,
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or file a voluntary petition in bankruptcy or answer seeking its reorganization or the readjustm ent
of its indebtedness under the federal bankruptcy laws or under any other law or statute of the
United States or of any State thereof, or consent to the appointment of a receiver, trustee; or
liquidator of all or substantially all of its property; or
(ii). By order or decree of a court, MEGABUS shall be adjudged
bankrupt or an order shall be made approving a petition filed by any of its creditors or stockholders,
seeking its reorganization or the readjustment of its indebtedness under the federal bankruptcy
laws or under any law or statute of the United States or of any State thereof, unless any such order
or decree shall be vacated within sixty (60) days of entry thereof; or
(iii). A petition under any part of the federal bankruptcy laws or an action
under any present or future insolvency law or statute shall be filed against MEGABUS and is not
dismissed within sixty (60) days after the filing thereof; or
(iv). The interest of MEGABUS under this Agreement, except as
otherwise provided herein, shall be transferred to, pass to or devolve upon, by operation of law or
otherwise, any other corporation, or any person or firm; or
(v) By or pursuant to, or under authority of any legislative act,
resolution or rule, or any order or decree of any court or governmental board, agency or officer, a
receiver, trustee, or liquidator shall take possession or control of all or substantially all of the
property of MEGABUS, and such possession or control shall continue in effect for a period of
thirty (30) days; or
(vi) Any lien shall be filed against the Station for any improvements
there at because of any act or omission of MEGABUS and is not removed, contested or bonded
within fifteen (15) days.
(b) Notwithstanding anything to the contrary contained herein, either party may
terminate this Agreement at any time upon thirty (30) days prior written notice to the other party
hereto.
(c) Notwithstanding anything to the contrary contained herein, and in addition
to COMMISSION’s rights to cancel this Agreement for an Event of Default, as provided in Section
16, COMMISSION may terminate this Agreement immediately, upon providing written notice to
MEGABUS of such termination and setting forth the effective date thereof, if MEGABUS is in
breach of any term or condition of this Agreement and immediate termination is required to protect
the Station, the Licensed Premises or the public health, safety or welfare, as determined by
COMMISSION in its sole discretion.
31. Personal Immunity. No member, director, officer, agent, employee or
representative of the COMMISSION shall be charged personally or held contractually liable by or
to the other party under any term or provision of this Agreement or of any supplement,
modification or amendment thereto, or because of any breach, actual, alleged or attempted, thereof.
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32. Restoration. Upon the termination or revocation of this Agreement, MEGABUS
shall, at its own cost and expense, restore the Licensed Premises to the same condition in which it
was prior to MEGABUS’ entry. In case MEGABUS shall fail to restore the Licensed Premises to
its prior condition within ten (10) business days after the effective date of the termination, the
COMMISSION may proceed with such work at the expense of MEGABUS.
33. Survival of Obligations. All obligations hereunder not fully performed as of the
termination, cancellation or expiration of this Agreement in any manner shall survive, including
without limitation, all payment obligations with respect to fees and all obligations concerning the
condition of the Licensed Premises.
34. Entire Agreement.
(a) This Agreement, exhibits, schedules and appendices attached hereto,
constitutes the entire agreement of COMMISSION and MEGABUS on the subject matter, and
may not be amended, modified, supplemented, discharged or extended except by written
instrument duly executed by the parties hereto.
(b) The parties agree that there are no representations or warranties existing
between them, and that none shall be binding upon either of them except as herein contained.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE TO
LICENSE AGREEMENT
BETWEEN
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AND
MEGABUS NORTHEAST LLC
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By: ________________________________
Anne Mayer, Executive Director
Approved as to form:
BEST BEST & KRIEGER LLP
___________________________
General Counsel
MEGABUS NORTHEAST LLC
By:____________________________
Title: __________________________
ATTEST:
By: ___________________________
Its: Secretary
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EXHIBIT “A”
LICENSED PREMISES
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EXHIBIT “B”
INSURANCE REQUIREMENTS
INSURANCE PROVISIONS
MEGABUS shall obtain, and shall require any consultant, contractor or agent entering the
Licensed Premises on its behalf to obtain insurance (or acceptable proof of adequate self insurance)
of the types and in the amounts described below and satisfactory to the COMMISSION.
A. Commercial General Liability Insurance. MEGABUS shall maintain occurrence
version commercial general liability insurance or equivalent form with a combined single limit of
not less then one million dollars ($1,000,000) per occurrence. If such insurance contains a general
aggregate limit, it shall apply separately to this Agreement or be no less than two times the
occurrence limit. Such insurance shall:
1. Include the COMMISSION and its officials, officers, employees, agents,
and consultants as insureds with respect to the performance of all permitted activities under this
Agreement and the use of the Licensed Premises and shall contain no special limitations on the
scope of coverage or the protection afforded to these insureds;
2. Be primary with respect to any insurance or self-insurance programs
covering the COMMISSION, its officials, officers, employees, agents and consultants; and
B. Pollution Liability Insurance. [RESERVED.]
C. Automobile Liability. MEGABUS shall acquire and maintain during the period of
this Agreement, automobile liability with a combined single limit of ten million dollars
($10,000,000). Coverage shall be at least as broad as the latest version of the following: Insurance
Services Office Business Auto Coverage form number CA 0001, code 1 (any auto).
The 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 MEGABUS or for which MEGABUS 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
MEGABUS’ 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.
D. Workers' Compensation Insurance. MEGABUS shall maintain workers'
compensation insurance with statutory limits and employers' liability insurance with limits of not
less than one million dollars ($1,000,000) each accident.
E. All Polices. All policies required hereunder shall comply with the following:
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1. 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) MEGABUS shall procure a bond guaranteeing payment of
losses and related investigation costs, claims and administrative and defense expenses.
2. Separation of Insureds; No Special Limitations. All insurance required
hereunder shall contain standard separation of insureds provisions. In addition, such insurance
shall not contain any special limitations on the scope of protection afforded to the COMMISSION,
its directors, officials, officers, employees, and agents.
3. 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.
F. Certificates of Insurance. MEGABUS, and any consultant, contractor or agent
entering the Licensed Premises on its behalf, shall, prior to entering the Licensed Premises, furnish
the COMMISSION with properly executed certificates of insurance, and, if requested by the
COMMISSION, certified copies of endorsements and policies, which clearly evidence all
insurance required under this Agreement and provide that such insurance shall be not canceled,
allowed to expire or be materially reduced in coverage, except on thirty (30) days' prior written
notice to the COMMISSION. Certificates shall be on form satisfactory to the COMMISSION.
The certificate shall also evidence the insurer's knowledge of the proximity of the operations of
MEGABUS to active railroad tracks. The COMMISSION shall have the sole discretion to
determine whether the certificates and endorsements presented comply with the provisions of this
Agreement.
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 approved by the COMMISSION before use by or on behalf of MEGA BUS of the Licensed
Premises. The COMMISSION reserves the right to require complete, certified copies of all
required insurance policies, at any time.
G. Coverage Maintenance. MEGABUS shall replace certificates, policies and
endorsements for any insurance expiring prior to the termination of this Agreement. Unless
otherwise provided for in this Agreement, MEGABUS shall maintain such insurance from the
execution of this Agreement until the performance of the license is complete and the Licensed
Premises is fully restored, except as otherwise provided in this Agreement.
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SCHEDULE 3(a)
USE SCHEDULE
See attached.
Operating Location/Depot LA LA LA LA LA LA LA
Route Number M10 M10 M10 M10 M10 M10 M10
Bus Working # 1 1 12 2 2 2 1
Available Seats 81 81 81 81 81 81 81
Days of Operation
SaSu
Mo-Fr Daily SaSu Mo-Th Fr Daily
Riverside, Downtown Metro Station 9:00 9:20 13:15 18:00 17:20 17:30 1:30
Operating Location/Depot LA LA LA LA LA
Route Number M10 M10 M10 M10 M10
Bus Working # 2 1 1 12 2
Available Seats 81 81 81 81 81
Days of Operation Daily Mo-Sa Su Daily Daily
Riverside, Downtown Metro Station 12:00 19:00 19:30 23:15 4:35
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SCHEDULE 5(b)
ADDITIONAL SERVICE FEE SCHEDULE
No. of Entrances Per Day/* Per Entrance Monthly Fee**
1 to 10 $154.50
11 to 20 $128.75
*Additional number of entrances per day/month are at all times subject to the prior approval of
COMMISSION.
**Subject to adjustment from time to time upon the mutual agreement of MEGABUS and
COMMISSION.
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