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HomeMy WebLinkAbout18-City Manager CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Dept: City Manager's Office Subject: Resolution of the Mayor and Common Council of the City of San Bernardino entering into an agreement with Omnitrans for a College Free Pass Pilot Program. From: Charles McNeely, City Manager Date July 21, 2011 Meeting Date: August I, 2011 Synopsis of Previous Council Action On July 20, 2011, Ways and Means Subcommittee recommended item for approval. Recommended Motion: I. Authorize the Director of Finance to amend the FY 2011-12 Budget and appropriate 141,765 to Account Number 111-100-5502-0016. 2. Adopt Resolution. CONTACT PERSON: Tait Ecklund, Management Analyst II Phone: 384-5122 SUPPORTING DATA: Staff Report, Resolution, Agreement Ward: All FUNDING REQUIREMENTS: Source: N/A Council Notes: Agenda Item No. I g O~-Ot-()O// CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subject: Resolution of the Mayor and Common Council of the City of San Bernardino entering into an agreement with Omnitrans for a College Free Pass Pilot Program and authorizing the allocation of$141,765 in AB2766 Subvention Funds. Background: Omnitrans is partnering with California State University San Bernardino, Chaffey College, Crafton Hills College, and San Bernardino Valley College to implement a one-year College Free Pass Pilot program for the 2011-2012 academic years. Through this pilot project, Omnitrans has requested one-time funding from the City of San Bernardino, the cities of Chino, Chino Hills, Colton, Fontana, Grand Terrace, Highland, Lorna Linda, Montclair, Ontario, Rancho Cucamonga, Redlands, Rialto, Upland, and Yucaipa, as well as the partner colleges, to provide free bus transportation for residents traveling to the partner colleges. Of these partner agencies, Omnitrans has received formal commitments from all but the cities of San Bernardino, Rialto, and Colton. The amount of funding, which is based on the number of students attending the partner colleges from each city, requested from the City of San Bernardino is $141,765. Funding would be allocated from the City's AB 2766 Subvention Fund. AB 2766 funds are disbursed annually to cities by the South Coast Air Quality Management District and must be used for projects that reduce motor vehicle emission. Public transportation fare subsidies, such as the College Free Pass pilot program, qualify as an acceptable use of funds. Prior to the end of the pilot program, Omnitrans will seek student support to continue the program by making it sustainable through student fees. Currently, approximately 9,451 students that attend the partner colleges reside in the City of San Bernardino. In order to meet State revenue guidelines, Omnitrans has calculated that each partner city contribute $15.00 per student. For the 9,451 students who live in San Bernardino, this would total $141,765. In exchange, all students will be provided free bus passes for the entire academic year. The following is a breakdown of City residents attending partner colleges: California State University San Bernardino 2,890 Chaffey College 504 Crafton Hills Colle!!e 435 San Bernardino Valley Colle!!e 5,622 According to Omnitrans, just one student switching from driving to taking the bus removes 20 pounds of carbon emissions each day from the air we breathe. Additionally, students could save $2,400 annually compared to driving. The success of similar College Free Pass programs demonstrates that cities and students benefit. When Riverside Transit Agency implemented a fare free college pass program at Riverside Community College, transit usage grew from two percent to ten percent of students within two years. After the one-year pilot program, students approved a student fee to continue the program into the future. This eliminated demand for over 1,000 parking spaces on campus, reduced auto emissions, and expanded residents' opportunity to get the critical job training that leads to economic growth. As further background into the AB2766 funds, the City of San Bernardino annually receives roughly $245,000 in subvention funds. This amount varies from year to year based on how many vehicles are registered within San Bernardino. These funds are paid quarterly to the City. Funds may also be accumulated from year to year with no cap in accumulation, given the City has a plan or project in place with which to use the funds. AB 2766 funds may be used for projects that measurably reduce mobile air emissions. Such projects include, but are not limited to, replacing gas and diesel fleet vehicles with alternative fuels/electric vehicles, alternative fuel infrastructure, vehicle emission control systems, develop general plans specifically related to mobile source reduction strategies, public transportation projects, traffic management and signal coordination, employer based work-related trip reduction, and a host of other projects designed to reduce mobile air emissions. Currently, the City of San Bernardino uses its annual AB 2766 funds for three projects. The first is our employer based work-related trip reduction, or Rideshare. Rideshare is mandated by Rule 2202 by the AQMD and is administered in the City Manager's Office. The second use of the City's AB 2766 funds is the purchase of compressed natural gas (CNG) for the Integrated Waste Management Division's new CNG garbage trucks. Finally, the City uses its AB 2766 funds for traffic signalization maintenance. The following table is a breakdown of the City's budgeted uses for its AB 2766 funds: FY 2011-12 AB 2766 Funds REVENUES Carried over from FY 20 I 0-11 $122,400 Expected revenue $246,200 Total available fund balance for FY 2011-12 $368,600 EXPENDITURES Emplovee Rideshare $115,700 Traffic Signalization $40,000 Compressed Natural Gas $30,000 Total Exoenditures $185,700 Exoected end-of-vear fund balance $182,900 It is important to note that this expected end-of-year fund balance is an estimate. The actual end- of-year fund balance will depend on the revenue received from AB 2766 funds throughout the year. Financial Impact: Funding for this agreement in the amount of $141,765 is available in the City Manager Air Quality Rideshare account. There is no impact on the General Fund. Account: 111-100-5502-0016 Budgeted Amount: $141,765 Available Fund Balance: $182,900 Balance after approval of this item: $41,135 Please note this balance does not indicate available funding. It does not include non- encumbered reoccurring expenses or expenses incurred, but not yet processed. Recommendations: 1. Authorize the Director of Finance to amend the FY 2011-12 Budget and appropriate 141,765 to Account Number 111-100-5502-0016. 2. Adopt Resolution. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO ENTERING INTO AN AGREEMENT BETWEEN CITY OF SAN BERNARDINO AND OMNITRANS FOR ONE-TIME FUNDING FOR A COLLEGE FREE PASS PILOT PROGRAM FOR 2011-2012 ACADEMIC YEAR WHEREAS, City of San Bernardino desires to reduce air pollution and traffic congestion in the CITY by decreasing automobile trips and promoting the use of public transportation and; WHEREAS, Omnitrans provides public transportation serVIce throughout the San Bernardino County valley including trips to California State University San Bernardino, Chaffey College, Crafton Hills College, and San Bernardino Valley College using clean burning compressed natural gas vehicles which eliminate vehicles from roads and; WHEREAS, Omnitrans proposes a one-time donation for a College Free Pass pilot program for free bus rides for all students residing in the City of San Bernardino on the Omnitrans bus routes servicing these campuses of California State University San Bernardino, Crafton Hills College, Chaffey College, and San Bernardino Valley College. WHEREAS, CITY agrees to participate in the College Free Pass pilot program by providing $14],765 for 9,45] student residents to subsidize CITY students' bus fares during the pilot program period. III III III July 27, 20] I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO ENTERING INTO AN AGREEMENT BETWEEN CITY OF SAN BERNARDINO AND OMNITRANS FOR ONE-TIME FUNDING FOR A COLLEGE FREE PASS PILOT PROGRAM FOR 2011-2012 ACADEMIC YEAR. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager is hereby authorized and directed to execute the attached Agreement between Omnitrans and the City of San Bernardino for the Omnitrans College Free Pass pilot program for the 2011-2012 academic year at an amount not to exceed $141,765. A copy of said Agreement is attached as Exhibit "A" and made a part hereof. SECTION 2. The authorization to execute the above-referenced agreement is rescinded if the parties to the Agreement fail to execute it within sixty (60) days of the passing of this Resolution. III III III III III III III III III III III III July 27,2011 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO ENTERING INTO AN AGREEMENT BETWEEN CITY OF SAN BERNARDINO AND OMNITRANS FOR ONE-TIME FUNDING FOR A COLLEGE FREE PASS PILOT PROGRAM FOR 2011-2012 ACADEMIC YEAR. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of ,2011 by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT MARQUEZ JENKINS BRINKER SHORETT KELLEY JOHNSON MCCAMMACK Rachel G. Clark, City Clerk The foregoing resolution is hereby approved this day of ,2011. Patrick J. Morris, Mayor City of San Bernardino Approved as to form: J ES F. PENMAN, Ity Attorney July 27,2011 EXHIBIT A Agreement between City of San Bernardino and Omnitrans for one-time funding for a College Free Pass pilot program for 2011-2012 Academic Year. This agreement is made and entered into this _ day of _,201 I, by and between Omnitrans, 1700 W. Fifth Street, San Bernardino, CA 924 I I, and the City of San Bernardino, 300 North D Street, San Bernardino, CA 924 18, referred to as the CITY. RECITALS: WHEREAS, CITY desires to reduce air pollution and traffic congestion in the CITY by decreasing automobile trips and promoting the use of public transportation and; WHEREAS, Omnitrans provides public transportation service throughout the San Bernardino County valley including trips to California State University San Bernardino, Chaffey College, Crafton Hills College, and San Bernardino Valley College using clean burning compressed natural gas vehicles which eliminate vehicles from roads and; WHEREAS, Omnitrans proposes a one-time donation for a College Free Pass pilot program for free bus rides for all students residing in CITY on the Omnitrans bus routes servicing these campuses of California State University San Bernardino, Crafton Hills College, and San Bernardino Valley College. WHEREAS, CITY agrees to participate in the College Free Pass pilot program by providing $141,765 in AB 2766 Subvention Funds for 9,451 student residents to subsidize CITY students' bus fares during the pilot program period. ARTICLE 1. STATEMENT OF WORK AND PAYMENT A City agrees to provide Omnitrans with a one-time amount of$14I,765 to be used to fund a portion of the College Free Pass pilot program sponsored by Omnitrans and payable upon receipt of invoice from Omnitrans. B. Omnitrans shall allow CITY students who provide a current valid College Identification Card to ride all of Omnitrans fixed route services at no charge commencing August 15, 20 I I and ending June 30, 20 I 2. This shall not apply to Access services. C. Omnitrans shall promote this program to CITY students to encourage usage. 1 EXHIBIT A ARTICLE 2. REPORTS At the conclusion of the program, Omnitrans shall provide CITY with a report summarizing usage and success of the program for use by CITY in reporting use of AS 2766 funds. ARTICLE 3. INDEPENDENT CONTRACTOR CITY is an independent contractor and not a beneficiary or employee ofOmnitrans within the meaning of any Workers' Compensation law, or any law which would entitle benefits arising out of any state or federal unemployment or old age fund or similar law, or any right to privilege extended by Omnitrans to its employees. CITY has no power to bind Omnitrans, by contract of otherwise except as herein provided by the sale of public transportation. Omnitrans is an independent contractor and not a beneficiary or employee of CITY within the meaning of any Workers' Compensation law, or any law which would entitle benefits arising out of any state or federal unemployment or old age fund or similar law, or any right to privilege extended by CITY to its employees. Omnitrans has no power to bind CITY, by contract of otherwise except as herein provided by the sale of public transportation ARTICLE 4. INDENMNITY Omnitrans shall defend, indemnify and hold CITY, its officers, agents, and employees harmless from and against any and all liabilities, loss, expense (including reasonable attorneys' fees), or claims for injury or damage arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damage are caused by or result from the negligent or intentional acts of omissions of Omnitrans, its officers, agents, or employees. City shall defend, indemnify and hold Omnitrans, its officers, agents, and employees harmless from and against any and all liabilities, loss, expense (including reasonable attorneys' fees), or claims for injury or damage arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damage are caused by or result from the negligent or intentional acts of omissions of City, its officers, agents, or employees. ARTICLE 5. INSPECTION OF RECORDS Omnitrans shall permit the authorized representative of CITY, during reasonable hours, to examine, inspect and audit all records and accounts pertaining to the College Free Pass pilot program and this Agreement. Omnitrans shall make such items readily accessible to CITY during Omnitrans performance hereunder and for a period of four (4) years from the end of the program by CITY hereunder. 2 EXHIBIT A ARTICLE 6. DEFAULT In the event that Ornnitrans does not receive the necessary funding from all participating jurisdictions before service begins, the program shall be cancelled and any funds received from CITY shall be returned in full. ARTICLE 7. MODIFICATION No modification of this agreement shall be effective unless made in writing and signed by both parties. ARTICLE 8. TERM This Agreement shall be effective upon execution and shall continue in effect until June 30, 2012 ARTICLE 9. NOTIFICATION All notices hereunder and communications with respect to this Agreement shall be effective upon the mailing thereof by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows. To City of San Bernardino: 300 North D Street San Bernardino, CA 92418 Attn: Charles McNeely City Manager (909) 384-5122 To Omnitrans: 1700 W. Fifth Street San Bernardino, CA 92411 Attention: Wendy Williams Marketing Department (909) 379-7151 ARTICLE 10. COMPLETE AGREEMENT; SEVERABILITY; WAIVER This Agreement and documents incorporated herein constitute the complete and exclusive statement of the terms of the Agreement between Omnitrans and CITY and it supersedes all prior representations, understandings, and communications. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. The failure of either party to insist in anyone or more instances upon the performance of any term or terms of this Agreement shall not be construed as a waiver of relinquishment of party's right to such performance or to future performance of such a term or terms. 3 EXHIBIT A ARTICLE 11. GOVERNING LAW AND VENUE The law of the State of California, without regard to any conflicts of law provisions, shall govern any action or claim arising out of this Agreement. The parties agree that the venue for any action or claim arising out of or related to this Agreement shall be San Bernardino County. If any action or claim concerning this Agreement is brought by a third party, the parties agree to use their best efforts to obtain a change of venue to San Bernardino County. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year above written. CITY OF San Bernardino OMNITRANS BY BY NAME: Milo Victoria TITLE: CEO/General Manager DATE: DATE: APPROVED AS TO FORM: APPROVED AS TO FORM: BY: City Attorney BY: County Counsel 4 Agreement between City of San Bernardino and Omnitrans for one-time funding for a College Free Pass pilot program for 2011-2012 Academic Year. This agreement is made and entered into this _ day of _, 2011, by and between Omnitrans, 1700 W. Fifth Street, San Bernardino, CA 92411, and the City of San Bernardino, 300 North D Street, San Bernardino, CA 92418, referred to as the CITY. RECITALS: WHEREAS, CITY desires to reduce air pollution and traffic congestion in the CITY by decreasing automobile trips and promoting the use of public transportation and; WHEREAS, Omnitrans provides public transportation service throughout the San Bernardino County valley including trips to California State University San Bernardino, Chaffey College, Crafton Hills College, and San Bernardino Valley College using clean burning compressed natural gas vehicles which eliminate vehicles from roads and; WHEREAS, Omnitrans proposes a one-time donation for a College Free Pass pilot program for free bus rides for all students residing in CITY on the Omnitrans bus routes servicing these campuses of California State University San Bernardino, Crafton Hills College, and San Bernardino Valley College. WHEREAS, CITY agrees to participate in the College Free Pass pilot program by providing $141,765 in AB 2766 Subvention Funds for 9,451 student residents to subsidize CITY students' bus fares during the pilot program period. ARTICLE 1. STATEMENT OF WORK AND PAYMENT A City agrees to provide Omnitrans with a one-time amount of $141,765 to be used to fund a portion of the College Free Pass pilot program sponsored by Omnitrans and payable upon receipt of invoice from Omnitrans. B. Omnitrans shall allow CITY students who provide a current valid College Identification Card to ride all of Omnitrans fixed route services at no charge commencing August 15, 2011 and ending June 30, 2012. This shall not apply to Access services. C. Omnitrans shall promote this program to CITY students to encourage usage. 1 ARTICLE 2. REPORTS At the conclusion of the program, Omnitrans shall provide CITY with a report summarizing usage and success of the program for use by CITY in reporting use of AB 2766 funds. ARTICLE 3. INDEPENDENT CONTRACTOR CITY is an independent contractor and not a beneficiary or employee of Omnitrans within the meaning of any Workers' Compensation law, or any law which would entitle benefits arising out of any state or federal unemployment or old age fund or similar law, or any right to privilege extended by Omnitrans to its employees. CITY has no power to bind Omnitrans, by contract of otherwise except as herein provided by the sale of public transportation. Omnitrans is an independent contractor and not a beneficiary or employee of CITY within the meaning of any Workers' Compensation law, or any law which would entitle benefits arising out of any state or federal unemployment or old age fund or similar law, or any right to privilege extended by CITY to its employees. Omnitrans has no power to bind CITY, by contract of otherwise except as herein provided by the sale of public transportation ARTICLE 4. INDENMNITY Omnitrans shall defend, indemnify and hold CITY, its officers, agents, and employees harmless from and against any and all liabilities, loss, expense (including reasonable attorneys' fees), or claims for injury or damage arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damage are caused by or result from the negligent or intentional acts of omissions of Omnitrans, its officers, agents, or employees. City shall defend, indemnify and hold Omnitrans, its officers, agents, and employees harmless from and against any and all liabilities, loss, expense (including reasonable attorneys' fees), or claims for injury or damage arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damage are caused by or result from the negligent or intentional acts of omissions of City, its officers, agents, or employees. ARTICLE 5. INSPECTION OF RECORDS Omnitrans shall permit the authorized representative of CITY, during reasonable hours, to examine, inspect and audit all records and accounts pertaining to the College Free Pass pilot program and this Agreement. Omnitrans shall make such items readily accessible to CITY during Omnitrans performance hereunder and for a period of four (4) years from the end of the program by CITY hereunder. 2 ARTICLE 6. DEFAULT In the event that Omnitrans does not receive the necessary funding from all participating jurisdictions before service begins, the program shall be cancelled and any funds received from CITY shall be returned in full. ARTICLE 7. MODIFICATION No modification of this agreement shall be effective unless made in writing and signed by both parties. ARTICLE 8. TERM This Agreement shall be effective upon execution and shall continue in effect until June 30, 2012 ARTICLE 9. NOTIFICATION All notices hereunder and communications with respect to this Agreement shall be effective upon the mailing thereof by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows. To City of San Bernardino: 300 North D Street San Bernardino, CA 92418 Attn: Charles McNeely City Manager (909) 384-5122 To Omnitrans: 1700 W. Fifth Street San Bernardino, CA 92411 Attention: Wendy Williams Marketing Department (909) 379-7151 ARTICLE 10. COMPLETE AGREEMENT: SEVERABILITY: WAIVER This Agreement and documents incorporated herein constitute the complete and exclusive statement of the terms of the Agreement between Omnitrans and CITY and it supersedes all prior representations, understandings, and communications. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. The failure of either party to insist in anyone or more instances upon the performance of any term or terms of this Agreement shall not be construed as a waiver of relinquishment of party's right to such performance or to future performance of such a term or terms. 3 ARTICLE 11. GOVERNING LAW AND VENUE The law of the State of California, without regard to any conflicts of law provisions, shall govern any action or claim arising out of this Agreement. The parties agree that the venue for any action or claim arising out of or related to this Agreement shall be San Bernardino County. If any action or claim concerning this Agreement is brought by a third party, the parties agree to use their best efforts to obtain a change of venue to San Bernardino County. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year above written. CITY OF San Bernardino OMNITRANS BY BY NAME: Milo Victoria TITLE: CEO/General Manager DATE: DATE: APPROVED AS TO FORM: APPROVED AS TO FORM: BY: County Counsel 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO ENTERING INTO AN AGREEMENT BETWEEN CITY OF SAN BERNARDINO AND OMNITRANS FOR ONE-TIME FUNDING FOR A COLLEGE FREE PASS PILOT PROGRAM FOR 2011-2012 ACADEMIC YEAR WHEREAS, City of San Bernardino desires to reduce air pollution and traffic congestion in the CITY by decreasing automobile trips and promoting the use of public transportation and; WHEREAS, Omnitrans provides public transportation service throughout the San Bernardino County valley including trips to California State University San Bernardino, Chaffey College, Crafton Hills College, and San Bernardino Valley College using clean burning compressed natural gas vehicles which eliminate vehicles from roads and; WHEREAS, Omnitrans proposes a one-time donation for a College Free Pass pilot program for free bus rides for all students residing in the City of San Bernardino on the Omnitrans bus routes servicing these campuses of California State University San Bernardino, Crafton Hills College, Chaffey College, and San Bernardino Valley College. WHEREAS, CITY agrees to participate in the College Free Pass pilot program by providing $141,765 for 9,451 student residents to subsidize CITY students' bus fares during the pilot program period. 1// III III MCC ~..\-Il .:cAem~l~ July 27,2011 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO ENTERING INTO AN AGREEMENT BETWEEN CITY OF SAN BERNARDINO AND OMNITRANS FOR ONE-TIME FUNDING FOR A COLLEGE FREE PASS PILOT PROGRAM FOR 2011-2012 ACADEMIC YEAR. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager is hereby authorized and directed to execute the attached Agreement between Omnitrans and the City of San Bernardino for the Omnitrans College Free Pass pilot program for the 2011-2012 academic year at an amount not to exceed $141,765. A copy of said Agreement is attached as Exhibit "A" and made a part hereof. SECTION 2. The authorization to execute the above-referenced agreement is rescinded if the parties to the Agreement fail to execute it within sixty (60) days of the passing of this Resolution. III III III III III III III 1// III III III III July 27,20]] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Approved as to form: 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO ENTERING INTO AN AGREEMENT BETWEEN CITY OF SAN BERNARDINO AND OMNITRANS FOR ONE-TIME FUNDING FOR A COLLEGE FREE PASS PILOT PROGRAM FOR 2011-2012 ACADEMIC YEAR. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 2011 by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT MARQUEZ JENKINS BRINKER SHORETT KELLEY JOHNSON MCCAMMACK Rachel G. Clark, City Clerk The foregoing resolution is hereby approved this day of , 2011. Patrick J. Morris, Mayor City of San Bernardino 1 ES F. PENMAN, lty Attorney July 27,201 I EXHIBIT A Agreement between City of San Bernardino and Omnitrans for one-time funding for a College Free Pass pilot program for 2011-2012 Academic Year. This agreement is made and entered into this _ day of _, 2011, by and between Omnitrans, 1700 W. Fifth Street, San Bernardino, CA 92411, and the City of San Bernardino, 300 North D Street, San Bernardino, CA 92418, referred to as the CITY. RECITALS: WHEREAS, CITY desires to reduce air pollution and traffic congestion in the CITY by decreasing automobile trips and promoting the use of public transportation and; WHEREAS, Omnitrans provides public transportation service throughout the San Bernardino County valley including trips to California State University San Bernardino, Chaffey College, Crafton Hills College, and San Bernardino Valley College using clean burning compressed natural gas vehicles which eliminate vehicles from roads and; WHEREAS, Omnitrans proposes a one-time donation for a College Free Pass pilot program for free bus rides for all students residing in CITY on the Omnitrans bus routes servicing these campuses of California State University San Bernardino, Crafton Hills College, and San Bernardino Valley College. WHEREAS, CITY agrees to participate in the College Free Pass pilot program by providing $141,765 in AB 2766 Subvention Funds for 9,451 student residents to subsidize CITY students' bus fares during the pilot program peri~d. ARTICLE 1. STATEMENT OF WORK AND PAYMENT A City agrees to provide Omnitrans with a one-time amount of $141,765 to be used to fund a portion of the College Free Pass pilot program sponsored by Omnitrans and payable upon receipt of invoice from Omnitrans. B. Omnitrans shall allow CITY students who provide a current valid College Identification Card to ride all of Omnitrans fixed route services at no charge commencing August 15, 2011 and ending June 30, 2012. This shall not apply to Access services. C. Omnitrans shall promote this program to CITY students to encourage usage. 1 EXHIBIT A ARTICLE 2. REPORTS At the conclusion of the program, Omnitrans shall provide CITY with a report summarizing usage and success ofthe program for use by CITY in reporting use of AB 2766 funds. ARTICLE 3. INDEPENDENT CONTRACTOR CITY is an independent contractor and not a beneficiary or employee of Omnitrans within the meaning of any Workers' Compensation law, or any law which would entitle benefits arising out of any state or federal unemployment or old age fund or similar law, or any right to privilege extended by Omnitrans to its employees. CITY has no power to bind Omnitrans, by contract of otherwise except as herein provided by the sale of public transportation. Omnitrans is an independent contractor and not a beneficiary or employee of CITY within the meaning of any Workers' Compensation law, or any law which would entitle benefits arising out of any state or federal unemployment or old age fund or similar law, or any right to privilege extended by CITY to its employees. Omnitrans has no power to bind CITY, by contract of otherwise except as herein provided by the sale of public transportation ARTICLE 4. INDENMNITY Omnitrans shall defend, indemnify and hold CITY, its officers, agents, and employees harmless from and against any and all liabilities, loss, expense (including reasonable attorneys' fees), or claims for injury or damage arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damage are caused by or result from the negligent or intentional acts of omissions of Omnitrans, its officers, agents, or employees. City shall defend, indemnify and hold Omnitrans, its officers, agents, and employees harmless from and against any and all liabilities, loss, expense (including reasonable attorneys' fees), or claims for injury or damage arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damage are caused by or result from the negligent or intentional acts of omissions of City, its officers, agents, or employees. ARTICLE 5. INSPECTION OF RECORDS Omnitrans shall permit the authorized representative of CITY, during reasonable hours, to examine, inspect and audit all records and accounts pertaining to the College Free Pass pilot program and this Agreement. Omnitrans shall make such items readily accessible to CITY during Omnitrans performance hereunder and for a period of four (4) years from the end of the program by CITY hereunder. 2 EXHIBIT A ARTICLE 6. DEFAULT In the event that Omnitrans does not receive the necessary funding from all participating jurisdictions before service begins, the program shall be cancelled and any funds received from CITY shall be returned in full. ARTICLE 7. MODIFICATION No modification of this agreement shall be effective unless made in writing and signed by both parties. ARTICLE 8. TERM This Agreement shall be effective upon execution and shall continue in effect until June 30, 2012 ARTICLE 9. NOTIFICATION All notices hereunder and communications with respect to this Agreement shall be effective upon the mailing thereof by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows. To City of San Bernardino: 300 North D Street San Bernardino, CA 92418 Attn: Charles McNeely City Manager (909) 384-5122 To Omnitrans: 1700 W. Fifth Street San Bernardino, CA 92411 Attention: Wendy Williams Marketing Department (909) 379-7151 ARTICLE 10. COMPLETE AGREEMENT: SEVERABILITY: WAIVER This Agreement and documents incorporated herein constitute the complete and exclusive statement of the terms of the Agreement between Omnitrans and CITY and it supersedes all prior representations, understandings, and communications. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. The failure of either party to insist in anyone or more instances upon the performance of any term or terms of this Agreement shall not be construed as a waiver of relinquishment of party's right to such performance or to future performance of such a term or terms. 3 EXHIBIT A ARTICLE 11. GOVERNING LAW AND VENUE The law of the State of California, without regard to any conflicts of law provisions, shall govern any action or claim arising out of this Agreement. The parties agree that the venue for any action or claim arising out of or related to this Agreement shall be San Bernardino County. If any action or claim concerning this Agreement is brought by a third party, the parties agree to use their best efforts to obtain a change of venue to San Bernardino County. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year above written. CITY OF San Bernardino OMNITRANS BY BY NAME: Milo Victoria TITLE: CEO/General Manager DATE: DATE: APPROVED AS TO FORM: APPROVED AS TO FORM: BY: City Attorney BY: County Counsel 4 Agreement between City of San Bernardino and Omnitrans for one-time funding for a College Free Pass pilot program for 2011-2012 Academic Year. This agreement is made and entered into this _ day of _, 2011, by and between Omnitrans, 1700 W. Fifth Street, San Bernardino, CA 92411, and the City of San Bernardino, 300 North D Street, San Bernardino, CA 92418, referred to as the CITY. RECITALS: WHEREAS, CITY desires to reduce air pollution and traffic congestion in the CITY by decreasing automobile trips and promoting the use of public transportation and; WHEREAS, Omnitrans provides public transportation service throughout the San Bernardino County valley including trips to California State University San Bernardino, Chaffey College, Crafton Hills College, and San Bernardino Valley College using clean burning compressed natural gas vehicles which eliminate vehicles from roads and; WHEREAS, Omnitrans proposes a one-time donation for a College Free Pass pilot program for free bus rides for all students residing in CITY on the Omnitrans bus routes servicing these campuses of California State University San Bernardino, Crafton Hills College, and San Bernardino Valley College. WHEREAS, CITY agrees to participate in the College Free Pass pilot program by providing $141,765 in AB 2766 Subvention Funds for 9,451 student residents to subsidize CITY students' bus fares during the pilot program period. ARTICLE 1. STATEMENT OF WORK AND PAYMENT A City agrees to provide Omnitrans with a one-time amount of $141,765 to be used to fund a portion of the College Free Pass pilot program sponsored by Omnitrans and payable upon receipt of invoice from Omnitrans. B. Omnitrans shall allow CITY students who provide a current valid College Identification Card to ride all of Omnitrans fixed route services at no charge commencing August 15, 2011 and ending June 30, 2012. This shall not apply to Access services. C. Omnitrans shall promote this program to CITY students to encourage usage. 1 ARTICLE 2. REPORTS At the conclusion of the program, Omnitrans shall provide CITY with a report summarizing usage and success of the program for use by CITY in reporting use of AB 2766 funds. ARTICLE 3. INDEPENDENT CONTRACTOR CITY is an independent contractor and not a beneficiary or employee of Omnitrans within the meaning of any Workers' Compensation law, or any law which would entitle benefits arising out of any state or federal unemployment or old age fund or similar law, or any right to privilege extended by Omnitrans to its employees. CITY has no power to bind Omnitrans, by contract of otherwise except as herein provided by the sale of public transportation. Omnitrans is an independent contractor and not a beneficiary or employee of CITY within the meaning of any Workers' Compensation law, or any law which would entitle benefits arising out of any state or federal unemployment or old age fund or similar law, or any right to privilege extended by CITY to its employees. Omnitrans has no power to bind CITY, by contract of otherwise except as herein provided by the sale of public transportation ARTICLE 4. INDENMNITY Omnitrans shall defend, indemnify and hold CITY, its officers, agents, and employees harmless from and against any and all liabilities, loss, expense (including reasonable attorneys' fees), or claims for injury or damage arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damage are caused by or result from the negligent or intentional acts of omissions of Omnitrans, its officers, agents, or employees. City shall defend, indemnify and hold Omnitrans, its officers, agents, and employees harmless from and against any and all liabilities, loss, expense (including reasonable attorneys' fees), or claims for injury or damage arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damage are caused by or result from the negligent or intentional acts of omissions of City, its officers, agents, or employees. ARTICLE 5. INSPECTION OF RECORDS Omnitrans shall permit the authorized representative of CITY, during reasonable hours, to examine, inspect and audit all records and accounts pertaining to the College Free Pass pilot program and this Agreement. Omnitrans shall make such items readily accessible to CITY during Omnitrans performance hereunder and for a period of four (4) years from the end of the program by CITY hereunder. 2 ARTICLE 6. DEFAULT In the event that Omnitrans does not receive the necessary funding from all participating jurisdictions before service begins, the program shall be cancelled and any funds received from CITY shall be returned in full. ARTICLE 7. MODIFICATION No modification of this agreement shall be effective unless made in writing and signed by both parties. ARTICLE 8. TERM This Agreement shall be effective upon execution and shall continue in effect until June 30, 2012 ARTICLE 9. NOTIFICATION All notices hereunder and communications with respect to this Agreement shall be effective upon the mailing thereof by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows. To City of San Bernardino: 300 North D Street San Bernardino, CA 92418 Attn: Charles McNeely City Manager (909) 384-5122 To Omnitrans: 1700 W. Fifth Street San Bernardino, CA 92411 Attention: Wendy Williams Marketing Department (909) 379-7151 ARTICLE 10. COMPLETE AGREEMENT; SEVERABILITY; WAIVER This Agreement and documents incorporated herein constitute the complete and exclusive statement of the terms of the Agreement between Omnitrans and CITY and it supersedes all prior representations, understandings, and communications. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. The failure of either party to insist in anyone or more instances upon the performance of any term or terms of this Agreement shall not be construed as a waiver of relinquishment of party's right to such performance or to future performance of such a term or terms. 3 ARTICLE 11. GOVERNING LAW AND VENUE The law of the State of California, without regard to any conflicts of law provisions, shall govern any action or claim arising out of this Agreement. The parties agree that the venue for any action or claim arising out of or related to this Agreement shall be San Bernardino County. If any action or claim concerning this Agreement is brought by a third party, the parties agree to use their best efforts to obtain a change of venue to San Bernardino County. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year above written. CITY OF San Bernardino OMNITRANS BY BY NAME: Milo Victoria TITLE: CEO/General Manager DATE: DATE: APPROVED AS TO FORM: APPROVED AS TO FORM: BY: County Counsel 4