HomeMy WebLinkAboutCDC/2009-55(NOTE: COMPANION RESOLUTION 2009-326)
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RESOLUTION NO. cDC/2oo9-55
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO
EXECUTE A MASTER COOPERATIVE AGREEMENT BY AND AMONG THE CITY OF
SAN BERNARDINO, THE AGENCY AND OMNITRANS FOR THE DEVELOPMENT OF
THE "E" STREET CORRIDOR SBX BUS RAPID TRANSIT PROJECT
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
recognizes the need to promote mass transit, the planning and funding of various transportation
projects and the construction of the San Bernardino Express ("sbX") Bus Rapid Transit Project,
which together with other redevelopment projects of the Agency will constitute a major effort
in the future dov`~ntown revitalization to be undertaken by the City of San Bernardino (the
"City") and the Agency; and
WHEREAS, the Agency recognizes the benefits to be derived from entering into a
Master Cooperative Agreement ("Agreement") with the City and Omnitrans, which states the
purposes and goals of the parties in implementing, constructing and operating the sbX Bus
Rapid Transit Project within the City; and
WHEREAS, the Agreement in the form as attached hereto as Exhibit "A" sets forth the
roles and responsibilities of the City, the Agency and Omnitrans in the implementation,
construction and operation of the sbX Bus Rapid Transit Project; and
WHEREAS, Omnitrans, as the Lead Agency under the California Environmental
Quality Act ("CEQA"), prepared an Environmental Assessment/Initial Study pursuant to the
requirements of CEQA; and
WHEREAS, on August 19, 2009, Omnitrans Board of Directors adopted a Mitigated
Negative Declaration and Mitigation Monitoring and Reporting Program and filed a Notice of
Determination with respect to the actions taken by Omnitrans pursuant to CF,QA; and
WHEREAS, on September 21, 2009, the Community Development Commission of the
City of San Bernardino (the "Commission"), on behalf of the Agency as a Responsible .Agency
under CEQA, independently reviewed, analyzed and exercised independent judgment in the
consideration of the Mitigated Negative Declaration as previously prepared and adopted by
Omnitrans.
CDC/2009-55
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY
OF SAN BERNARDINO AUTHORIZING 'THE INTERIM EXECUTIVE DIRECTOR OF
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO
EXECUTE A MASTER COOPERATIVE AGREEMENT BY AND AMONG THE CITY OF
SAN BERNARDINO, THE AGENCY AND OMNITRANS FOR THE DEVELOPMENT OF
THE "E" STREET CORRIDOR SBX BUS RAPID TRANSIT PROJECT
NOW THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY
COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN
BERNARDINO, AS FOLLOWS:
Section 1. The Commission hereby certifies that the Commission on behalf of the
Agency in approving the Agreement as provided in Section 2 hereof does hereby find and
determine as follows:
(a) that the Commission independently and considered the Mitigated Negative
Declaration and Mitigation Monitoring and Reporting Program as adopted by the
Lead Agency to thus provide the Commission with the basis to approve the
Agency identified "project" being the approval and execution of the Agreement as
attached to this Resolution; and
(b) in reliance upon the facts and statements as contained in the Staff Report
accompanying the presentation of this Resolution to the Commission, the
Commission hereby further finds and determines that the facts as presented in said
Staff Report support the legal position of the Agency that the Agency identified
"project" to approve and execute the Agreement is consistent with the prior CEQ,A
documentation as prepared, approved and certified by the Lead Agency.
Section 2. The Commission hereby authorizes the Interim Executive Director of
the Agency to execute on behalf of the Agency the Master Cooperative Agreement by and among
the City, the Agency and Omnitrans for the development of the "E" Street Corridor sbX Bus Rapid
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CDC/2009-55
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO
EXECUTE A MASTER COOPERATIVE AGREEMENT BY AND AMONG THE CITY OF
SAN BERNARDINO, THE AGENCY AND OMNITRANS FOR THE DEVELOPMENT OF
THE "E" STREET CORRIDOR SBX BUS RAPID TRANSIT PROJECT
Transit Project in the form as attached hereto as Exhibit "A" and by reference made a part
hereof.
Section 3. This Resolution shall be void and of no further force and effect in the
event the Agreement is not fully executed and delivered by all parties within ninety (90) days
from and after the effective date of this Resolution.
Section 4. The Commission further authorizes and directs Agency staff to file a
Notice of Determination with the Clerk of the Board of Supervisors of the County of San
Bernardino, certifying the compliance by the Agency with CEQA in making the determinations
of the Commission on behalf of the Agency as set forth in this Resolution.
Section 5. This Resolution shall take effect from and after the date of approval and
execution hereof by the appropriate individuals.
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CDC/2009-55
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE INTERIM EXECi7TIVE DIRECTOR OF
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO
EXECUTE A MASTER COOPERATIVE AGREEMENT BY AND AMONG THE CITY OF
SAN BERNARDINO, THE AGENCY AND OMNITRANS FOR THE DEVELOPMENT OF
THE "E" STREET CORRIDOR SBX BUS RAPID TRANSIT PROJECT
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
Community Development Commission of the City of San Bernardino at a
joint
regular meeting thereof, held on the 21st day of SPA m~,~ e,- 2009, by the
following vote to-wit:
Commission Members: AYES NAYS ABSTAIN ABSENT
ESTRADA x
BAXTER x
BRINKER x
SHORETT x
x
KELLEY
JOHNSON x
MCCAMMACK x
Secretary
'The foregoing Resolution is hereby approved this --'J) ~~~-{ day of September
2009.
atrick J. orris, Chairperson
Co ty Development Commission of
the City of San Bernardino
Approved as to form::%
~ °~
f i t; +.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT' COMMISSION OF T'HE CITY
OF SAN BERNARDINO AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO
EXECUTE A MASTER COOPERATIVE AGREEMENT BY AND AMONG THE CITY" OF
SAN BERNARDINO, THE AGENCY AND OMNITRANS FOR THE DEVELOPMENT OF
THE "E" STREET CORRIDOR SBX BUS RAPID TRANSIT PROJECT
EXHIBIT "A"
MASTER COOPERATIVE AGREEMENT
[NOTE: Agreement attached only to Council Resolution for agenda purposes]
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EXHIBIT "A"
MASTER COOPEKATIVE AGREEMENT
[NOTE: Agreement attached only to Council Resolution for agenda purposes]
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(NOTE: ORIGINAL FILE WITH RESO CDC/2009-SS
2009-326) EXHIBIT "A"
MASTER COOPERATIVE AGREEMENT BETWEEN AND AMONG
OMNITRANS, CITY OF SAN BERNARDINO, AND REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO FOR THE "E" STREET
CORRIDOR SBX BUS RAPID TRANSIT PROJECT
This MASTER COOPERATIVE AGREEMENT ("Agreement") by and among Omnitrans, a joint
powers authority created via a joint powers agreement, dated March 8, 1976, and amended pursuant to
Section 6500, et seq., of the Government Code, the City of San Bernardino, a charter city ("City"), and
the Redevelopment Agency of the City of the San Bernardino, a public entity and community
redevelopment agency ("Agency") is made and entered into as of g 21-09 ("Effective
Date"). Omnitrans, City, and Agency are sometimes individually referred to as "Party" and collectively
as "Parties."
1. Recitals.
1.1 The construction and operation of the E Street Corridor sbX Bus Rapid Transit Project
("Project") will contribute directly and continuously to the economy of the City of San Bernardino and
the surrounding region, and to the general benefit and welfare of its citizens. The City of San
Bernardino's goal to revitalize business and economic development and to improve the quality of life for
residents and businesses is in alignment with Omnitrans' proposed Project. The Project will become a
major catalyst to support transportation needs of City of San Bernardino residents, while helping to
reduce traffic and greenhouse gases from vehicles. The Project will also provide a means of stimulating
business and economic development during the construction and operation phases by providing jobs
during the construction of the 15.7 mile Project, supporting businesses during the construction from the
influx of additional workers to the area. During the operation phase, the Project will provide needed
access to vital links along the corridor such as CSUSB, Civic Center, Orange Show, Inland Center Mall
and the Hospitality Tri-Cities area businesses as well as promoting business operations along the corridor
by providing transportation access to workers, patrons and visitors to the area. This Project will support
the return of San Bernardino's cosmopolitan and professional image and encourage the influx of new
business to the area. Omnitrans, being the authorized recipient of Federal Transit Agency ("FTA") Funds
for this Project, will work in partnership with the City to realize this endeavor. Omnitrans will be the
conduit to deliver the Project to the City through the use of the FTA Funds.
1.2 The Omnitrans Board of Directors adopted a Locally Preferred Alternative ("LPA")
during its meeting on December 7, 2005, and subsequently adopted the Refined Locally Preferred
Alternative ("RLPA") during its meeting on February 4, 2009, for the Project. The Project consists of
developing sixteen (16) proposed "rapid bus" style station locations that will utilize modern articulated
buses for quick boarding along a proposed 15.7-mile route, 5.4 miles of exclusive center-running bus
rapid transit ("BRT") lanes within the City of San Bernardino, 10.3 miles of mixed flow lanes, transit
signal priority applications at select key intersections to reduce delays and improve time, and four (4)
park-and-ride facilities. The Project is more thoroughly described in Exhibit "A," which is attached
hereto and incorporated herein by this reference.
1.3 In addition to adopting the LPA and the RLPA, the Omnitrans Board of Directors also
authorized Omnitrans staff to seek a funding plan for the Project, including funding from federal, state,
local and private sources, and to commence with implementation of the RLPA and to enter into
agreements with various entities and stakeholders to facilitate the completion of the Project.
1.4 As currently proposed, the Project offers multiple modalities to effectuate the goals of the
Parties in reducing travel delay and inefficiency, curtailing greenhouse gas emissions and promoting
transit oriented development, including implementing miles of exclusive lanes along the proposed route to
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ensure competitive operational speeds and the maintenance of design system characteristics, providing
transit signal priority at various designated street intersections and establishing park and ride facilities in
conjunction with selected station locations. City and Agency recognize that construction and operation of
the Project will achieve travel time savings and more frequent BRT service, and they acknowledge and
agree that such travel-time savings and more frequent service are of significant benefit to the City and its
residents.
1.5 The Omnitrans Board of Directors adopted an Initial Study/Mitigated Negative
Declaration and Mitigation Monitoring Reporting Program pursuant to the California Environmental
Quality Act ("CEQA") for the construction of the Project as described herein on August 19, 2009. In the
approval of this Agreement, both the City and Agency, as "responsible parties" under CEQA, have relied
upon Omnitrans' compliance with CEQA as the "lead agency." The Parties hereby incorporate by this
reference the final Initial Study/Mitigated Negative Declaration for the Project, including all supporting
technical studies reports and those comments received from responsible parties as Exhibit "G," and the
fmal approved Mitigation Monitoring and Reporting Program as Exhibit "H."
1.6 The Project will be funded, designed and constructed with all due diligence to enable the
Project to become fully operational by calendar year 2013 as intended by the Parties to this Agreement.
1.7 Omnitrans will obtain all necessary real estate and additional rights-of--way to expand
current City streets along portions of the RLPA, as necessary, for the Project. Omnitrans will procure
BRT vehicles, which it will use to operate the Project. Omnitrans will also be performing major roadway
reconstruction and rehabilitation on City streets affected by the Project and such work in the estimates of
Omnitrans will likely result in the accelerated completion of needed improvements to such streets and
may reduce the City's ongoing maintenance costs of such streets.
1.8 The Parties desire to enter into this Agreement to set forth their mutual understanding of
the terms and conditions under which Omnitrans shall undertake the Project as briefly described above in
consideration of the City and Agency commitments as set forth herein. The Parties recognize the
importance of the Project to the regional transportation needs of Western San Bernardino County and,
more specifically, the City of San Bernardino and desire to set forth their respective commitments with
respect to coordinating construction of the Project within the City of San Bernardino.
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants hereinafter
contained and for good and valuable consideration, the receipt of which is hereby acknowledged, the
Parties agree as follows:
2. Definitions. As used in this Agreement, the following words and terms shall have the meaning as
provided in the Recitals or in this section unless the specific context of usage of a particular word or term
may otherwise require:
2.1 "Agency" means the Redevelopment Agency of the City of San Bernardino, a public
entity and community redevelopment agency, and its officials, officers, employees, volunteers and agents.
2.2 "Agreement" means this Master Cooperative Agreement entered into by and between
Omnitrans, the City and Agency.
2.3 "CIR" means the cold in-place recycling method used to recycle reclaimed asphalt.
2.4 "City" means the City of San Bernardino, a charter city and its officials, officers,
employees, volunteers and agents.
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2.5 "City streets," "City rights-of--way" and "City public rights-of--way" mean those existing
streets and rights-of--way that are either held by the City of San Bernardino in fee or pursuant to an
easement for public street purposes, including such additional rights-of--way as may be transferred by
Oxnnitrans to City in furtherance of the implementation of the Project.
2.6 "City Utilities" means all existing City or City of San Bernardino Municipal Water
Department owned, operated or controlled utilities, including but not limited to all water lines, sewer
lines, and storm drains, located within the rights-of--way for the Project all as further provided in Section
4.1.3 hereof.
2.7 "Construction Phase" means all activity in furtherance of the Project occurring between
the effective date of the first contract for construction of any facility contemplated as part of the Project
and the date of closure of the last outstanding such contract.
2.8 "Effective Date" means the date first-above referenced in the introductory paragraph.
2.9 "Environmental Laws" refers collectively to any and all federal, state, or local statute,
law, ordinance, code, rule, regulation, permit, order, or decree regulating, relating to, or imposing liability
or standards of conduct on a person discharging, releasing or threatening to discharge or release or
causing the discharge or release of any hazardous or solid waste or any hazardous substance, pollutant,
contaminant, water, wastewater or storm water.
2.10 "Implementation Phase" means all activity in furtherance of the Project occurring
between the Effective Date and the commencement of the Construction Phase.
2.11 "Landscaping" shall mean all native or exotic plant materials including lawn, ground
cover, trees, shrubs, and other plant materials; and also including accessory decorative outdoor landscape
elements such as pools, fountains, paved or decorated surfaces.
2.12 "Omnitrans" means Omnitrans, a joint powers authority created via a joint powers
agreement, dated March 8, 1976, as amended, pursuant to Section 6500, et seq., of the Government Code
and its officials, officers, employees, volunteers and agents.
2.13 "Operational Phase" means all activity in furtherance of the Project commencing with the
first entry of an Omnitrans driver into a BRT bus for the purpose of the commencement of regular service
along the transit route of the Project.
2.14 "Party" or "Parties" means Omnitrans, Agency or City referred to individually or
collectively.
2.15 "Plans" means all Project plans, specifications, drawings or any other construction
documents that Omnitrans submits and City reviews and subsequently approves pursuant to Section 5.1.1
of this Agreement. The Plans shall include, but not be limited to: (i) City and City of San Bernardino
Municipal Water Department approved engineering plans and specifications that illustrate the existing
utilities, including but not limited to all city water lines, sewer lines, and storm drains, located within the
rights-of--way of the Project and the intended rerouting or other engineering solutions to relocate, or
otherwise protect in place, such utilities within the existing City rights-of--way to the extent feasible; (ii)
City approved landscape plans and specifications; (iii) City approved plans and specifications related to
street lighting; (iv) City approved plans and specifications related to Project-Related Signage and Traffic
Control Signage; and (v) City approved plans and specifications related to temporary traffic control
measures.
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2.16 "Project" means the "E" Street Corridor sbX Bus Rapid Transit Project referenced in the
recitals and more thoroughly described in Exhibit "A."
2.17 "Project-Related Signage" means all signs or other installations within or outside the
Project Rights-of--Way whose primary purpose is to inform the public about the Project, its operations,
and facilities, including station locations, park-and-ride facilities, and way-finding signs. All Project-
Related Signage shall be designated as such on the Plans.
2.18 "Project Rights-of--Way" means the City public rights-of--way for the following streets
for the use and operation of sbX transit buses: (i) Kendall Drive from Palm Avenue to "E" Street; (ii) "E"
Street from Kendall Drive to Hospitality Lane; (iii) Hospitality Lane from "E" Street to Tippecanoe
Avenue; (iv) Tippecanoe Avenue from Hospitality Lane to the southern boundary of the City of San
Bernardino with the City of Loma Linda. Refer to graphic in Exhibit "A."
2.19 "Project Station" means the raised platform area, including the ADA ramp access,
dedicated to the specific purpose of a transit system boarding platform, and shall include the bus shelter or
canopy structure and furniture, equipment and other transit-specific elements dedicated to the use of
Omnitrans and its customers, as indicated on the Plans. All such Project Stations shall only be
constructed by Omnitrans after the issuance by City of an encroachment permit for the construction phase
and a permanent encroachment permit for the use of such Project Station during the term of any such
permanent encroachment permit all as further provided in Sections 4.2, 4.3.1, 5.1.3.
2.20 "RAP" means reclaimed asphalt pavement that has been reused or is intended to be
reused pursuant to a program for accomplishing asphalt pavement recycling.
2.21 "Traffic Control Signage" means all signs or other installations within the Project Rights-
of-Way that are required on the Plans for proper traffic safety, movement, and control. within the Project
Rights-of--Way.
2.22 "TOD" means transit oriented development.
2.23 "TSP" means transit signal priority.
3. Phasing of Commitments. The Parties acknowledge that their various commitments to one
another will occur within the Implementation Phase, Construction Phase and Operational Phase of Project
development unless otherwise specified in this Agreement. The Implementation, Operational and
Construction Phases may overlap. Project development is distinguished by Phases only for the purposes
of organizing the commitments hereunder and shall not be deemed to limit the commitments of the Parties
hereunder.
4. Omnitrans' Commitments.
4.1 Implementation Phase. Omnitrans shall undertake the following commitments during the
Implementation Phase of the Project:
4.1.1 Right-of-WaX. Omnitrans has allocated a budget for the purchase of additional
rights-of--way required to facilitate the construction of the Project. Omnitrans shall be fully responsible
for the acquisition of additional rights-of--way to the extent necessary to expand the width of any travel
lanes or to construct additional travel lanes, or to facilitate construction of all necessary improvements
identified in the Plans. Omnitrans shall pay all costs associated with the purchase and acquisition,
including appraisals, legal costs, and relocation costs, for all rights-of--way acquired by Omnitrans for the
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Project. All rights-of--way acquisition by Omnitrans shall be carried out pursuant to Omnitrans' Real
Estate Acquisition and Management Plan.
4.1.2 Construction Management Services. Omnitrans has retained a construction
management firm (the "CM") to provide construction management services for the Project on behalf of
Omnitrans from the Implementation Phase through fmal approval and operation of the Project. The CM
on behalf of Omnitrans will coordinate all construction efforts through the City by maintaining daily logs,
ensuring compliance with construction contracts and approved design drawings, adherence to schedules
and budgets, and continued communication with City.
4.1.3 City Utilities. Prior to the commencement of any construction, Omnitrans shall
submit to City and the City of San Bernardino Municipal Water Department for their review and approval
engineering plans and specifications that illustrate the size, type and location of all existing City or City of
San Bernardino Municipal Water Department owned, operated or controlled utilities, including but not
limited to all water lines, sewer lines, and storm drains, located within the rights-of--way of the Project
(the "City Utilities") and the intended rerouting or other engineering solutions to relocate, or otherwise
protect in place, the City Utilities within the existing City rights-of--way to the extent feasible. Omnitrans
shall work with the City to relocate the City Utilities located within City rights-of--ways located within the
Project that are identified within the Plans, provided, however, that all such relocations of City Utilities
shall be without any cost whatsoever to City or the City of San Bernardino Municipal Water Department,
and provided that Omnitrans will design such potential relocations with no degradation in service to City
and City of San Bernardino Municipal Water Department customers for utility, water, storm drain, and
sewer services. Omnitrans' obligations under this section are applicable and limited to City Utilities
identified within the Plans that require relocation and any other City Utilities that were omitted from the
Plans, but nevertheless require relocation in order to facilitate development the Project. Omnitrans shall
have no obligation under this section to relocate City Utilities that Omnitrans is not required to relocate as
determined by the City or the City of San Bernardino Municipal Water Department whether or not
illustrated on the Plans that Omnitrans prepares.
4.1.4 Other Utilities. Omnitrans recognizes that other governmental agencies and
investor-owned public utilities own certain utility lines both underground and above ground within City
public rights-of--way located within the Project. Some utility purveyors have the benefit of franchise
agreements, certain easements or other rights granting such utility purveyors certain prior rights to be
located within City public rights-of--way located within the Project. Therefore, Omnitrans must recognize
all such prior rights that may exist as to any and all such governmental entities and investor owned public
utilities with existing rights, regardless of the nature of such rights, within City public rights-of--way
located within the Project. Omnitrans and not City shall be required to negotiate with all such utility
purveyors and to relocate all necessary utilities in accordance with those rights and agreements granting
such utility purveyors the presence of their utility lines within City public rights-of--way without any cost
or other liability whatsoever to City. Omnitrans shall only be responsible for replacing underground and
above ground utility lines that it will relocate with utility lines of similar size, grade and construction
except as otherwise specifically provided in this Agreement. Omnitrans shall be solely responsible and
pay all costs associated with the relocation of all conflicting utilities located or hereafter discovered
within the City public rights-of--way as necessary to accommodate the Project only to the extent that an
applicable franchise agreement, easement or other right granting the utility purveyor a prior right, does
not require such utility purveyor to relocate utility lines at its expense within the City public rights-of-
way.
4.2 Construction Phase. Prior to the commencement of any construction activities within the
City rights-of--way, Omnitrans shall apply for a construction encroachment permit containing such
standard provisions as is customarily utilized by the City including, but not limited to, insurance, defense,
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indemnification and hold harmless provisions, traffic control and other issues dealing with the manner
and procedures for undertaking construction activities in City rights-of--way. Omnitrans recognizes that
prior to the completion of the Construction Phase of the Project, it will be necessary to obtain a permanent
encroachment permit from the City requiring the approval of the Mayor and Common Council
("Council") of the standard form of such permanent encroachment permit together with such other issues
as are typically placed in such permits in addition to any other conditions imposed by the Council at its
discretion. Omnitrans shall undertake the following commitments during the Construction Phase of the
Project:
4.2.1 Reconstruction and Rehabilitation of City Streets in Project Rights-of--Way. At
its sole cost and expense, Omnitrans will reconstruct specified portions of City rights-of--way within the
Project, in accordance with and as designated in the Plans. "Reconstruct" means the total replacement of
pavement, subgrades, sidewalk curbs, curb drains, pavement markings, landscaping and all appurtenances
necessary to replace the roadway and sidewalk system. For City streets that are not reconstructed, at its
sole cost and expense, Omnitrans will rehabilitate all other City streets within the Project, in accordance
with and as designated in the Plans. "Rehabilitate" means pavement grinding, overlay, and base repairs,
sidewalk and curb repairs, and construction of concrete bus pads and appurtenances.
4.2.2 Replacement, Removal or Relocation of Landscaping and Irrigation. Omnitrans
shall consult with the City prior to its removal and replacement of any Landscaping and/or irrigation
located within City's public rights-of--way or within any landscape maintenance easement, and shall
obtain City's written approval of landscape plans and specifications, which shall not be unreasonably
withheld or delayed. The landscape plan and specifications shall contain the information required by
City's regulations and guidelines for landscape plans and specifications, including provisions regarding
the procedure for removal, replacement and relocation of Landscaping, the design and type of
Landscaping that Omnitrans shall utilize to replace Landscaping previously removed, the identification of
City-owned or approved sites where Omnitrans can relocate Landscaping and any other provision the
Parties deem appropriate to carry out the intent of this section. All actions that Omnitrans undertakes
with respect to its removal, replacement or relocation of Landscaping and/or irrigation, whether on public
or private property, shall be consistent with the Plans, and shall be at Omnitrans' sole cost. If any of the
Landscaping and/or irrigation is located within an existing landscape maintenance district, Omnitrans will
negotiate with the owner of record and facilitate, to the extent possible, the inclusion of new Landscaping
and/or irrigation (or the relocation of existing Landscaping and/or irrigation) within the existing landscape
maintenance district. If any new easement is required for the relocation of any Landscaping and/or
irrigation within a landscape maintenance district, or if the Engineer's Report for any landscape
maintenance district needs to be modified as a result of work pursuant to this section, Omnitrans shall
bear the cost and burden of obtaining such new easements and/or preparing the necessary modifications to
the Engineer's Report. Omnitrans shall be responsible for obtaining any required permissions or rights-
of-entry from private property owners that may be necessary to complete any removal or replacement of
any Landscaping and/or irrigation.
4.2.3 Relocation of Street Lighting. Omnitrans shall consult with the City prior to its
removal and replacement of any City-owned street lighting, which shall be consistent with the Plans. All
removal, replacement, and/or relocation of City-owned street lighting undertaken pursuant to the Plans
shall be at the sole cost and expense of Omnitrans.
4.2.4 Installation of Project-Related Signage and Traffic Control Signage. At its sole
cost and expense, Omnitrans shall install all Project-Related Signage and Traffic Control Signage
indicated in the Plans.
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4.2.5 Installation and/or Relocation of Traffic Control Signals and TSP Equipment.
Omnitrans shall be responsible for the relocation of existing City traffic control equipment identified in
the Plans and all costs associated therewith. Omnitrans shall purchase and install new traffic control
signals located at City public rights-of--way intersections along the Project and all TSP equipment
necessary to develop a TSP system consistent with the Plans. All equipment purchased shall be
compatible with existing City equipment. Omnitrans shall be responsible for the installation and testing
of the TSP system during the Construction Phase; provided, however, that City provides reasonable
access to the TSP system during the aforementioned period and provides coordination efforts for start-up
and testing as indicated under City commitments in this Agreement. Access to the TSP system or traffic
control signals will be provided only by authorized City staff, and all work on the TSP system or traffic
control signals shall be directly supervised by authorized City staff, including documenting the date, time
and activities of such work on the maintenance log in the appropriate traffic control equipment cabinet.
4.2.6 Offer of Dedication. Upon the acquisition of a public right-of--way easement by
Omnitrans to expand any existing public right-of--way within the Project, Omnitrans shall prepare and
present an irrevocable offer of dedication to City for public roadway purposes in a condition and in a form
as customarily accepted by City. Such dedication shall include the completed roadway improvements and
Landscaping improvements which shall be in compliance with all Plans.
4.2.7 Staging, Temporary Construction Work, and Storage Areas. Omnitrans shall be
responsible for insuring equipment and materials stored on City-owned or controlled properties, or
privately owned properties, as provided in this Agreement and for the maintenance of such sites during
their use by Omnitrans as required by City. Upon completion of the Construction Phase, Omnitrans shall
also be responsible for the restoration of said properties to their pre-existing condition or to a condition
otherwise satisfactory to City; however, City shall not require Omnitrans to improve such property or
leave it in a better condition than when received. A Temporary Use Permit from City shall be obtained by
Omnitrans or their contractor prior to using any property in this manner. Omnitrans and/or their
contractor shall be responsible for the installation and maintenance of appropriate dust control measures
to the satisfaction of the City Engineer. In addition, Omnitrans and/or their contractor shall be
responsible for the installation and maintenance of standard Best Management Practice measures related
to the City's MS4 permit under the National Pollutant Discharge Elimination System ("NPDES") in
controlling storm runoff from the site.
4.2.8 Temporary Traffic Control. Omnitrans shall be responsible for installing
temporary traffic control measures in accordance with the Plans, or separate traffic control plan approved
by City, at its sole expense and such measures shall not unreasonably restrict access to businesses or
residences. Access to residents and businesses shall be provided at all times during construction.
4.2.9 Fugitive Dust Control. Omnitrans shall employ standard measures to control
fugitive dust caused by construction activities along the entire project corridor and at any construction
yards or staging areas. Proposed measures shall be reviewed and approved by City prior to
implementation and the City Engineer shall have the authority to require additional measures if a fugitive
dust problem arises as result of construction activities.
4.2.10 Storm Water Mana ems. Omnitrans shall be responsible for design and
implementation of a Storm Water Pollution Prevention Plan ("SWPPP") at all times during construction.
The SWPPP shall be available with the contractor at the construction zone at all times.
4.3 Operational Phase. Omnitrans shall undertake the following commitments during the
Operational Phase of the Project:
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4.3.1 Maintenance of Project Stations. At its sole cost and expense, Omnitrans shall be
responsible for the repair, maintenance and operation of all Project Station locations and Project Station
structures and equipment. For purposes of this Agreement, Omnitrans' maintenance obligations pursuant
to this section shall include maintenance of equipment located at Project Station locations and structures,
maintenance and repair of Project Station locations and structures (including, but not limited to; message
signs, water fountains, fencing, grating, handrails, detectible warning strips, canopy, security equipment,
lighting, seating areas), trash disposal, cleaning and graffiti removal, and Landscaping located within a
Project Station. All such maintenance of Project Stations shall be consistent with and in compliance with
all permanent encroachment permits as issued by City with the approval of the Council as further set forth
in Section 4.2 hereof including all requirements for insurance, standard of maintenance and other defense,
indemnification and hold harmless provisions as may then be imposed upon such permanent
encroachment permit by the Council at its discretion.
4.3.2 Maintenance of Project-Related Signa~e. At its sole cost and expense,
Omnitrans shall maintain, repair, and replace all Project-Related Signage indicated in the Plans.
4.3.3 Replacement or Up>;rade of TSP Equipment. At its sole cost and expense,
Omnitrans shall be responsible for replacing, if and when necessary, any non-functioning, non-repairable
TSP equipment or any upgrades to the TSP equipment/system required for the proper functioning of the
BRT system.
4.3.4 System Service. Omnitrans reserves its right to modify or adjust schedules of
sbX BRT service as is necessary to provide optimal, efficient and cost-effective service to Omnitrans
patrons.
4.3.5 Utility Cuts, Street Closures, or Other Cit~perations Temporarily Affecting
Use of Project Rights-of--Way. Notwithstanding any other provision in this Agreement, Omnitrans hereby
understands that there may be periodic utility cuts, street closures, or other City operations that may
temporarily affect the availability and/or usage of the Project-Rights-of--Way as contemplated by this
Agreement and the Project, including usage of exclusive sbX traffic lanes. City and Omnitrans shall
coordinate to minimize the disruption caused by such utility or municipal operations within the Project-
Rights-of--Way, but Omnitrans understands and accepts that such utility or municipal operations will have
priority within the Project-Rights-of--Way to the extent necessary, and that operation of the sbX BRT
service may be temporarily affected or displaced thereby.
5. City's Commitments.
5.1 Implementation Phase. City shall undertake the following commitments during the
Implementation Phase of the Project:
5.1.1 Review of Submitted Plans. City shall use reasonable good faith efforts to
promptly receive and, when properly completed by Omnitrans, accept all Project plans, specifications,
drawings or any other construction documents ("Submitted Plans") and will expeditiously process or
cause to be processed through the City and/or through independent engineering firms and take necessary
action upon those Submitted Plans that are in accordance with all City ordinances, resolutions, this
Agreement and any other applicable law.
5.1.2 Fees and Permit Costs. City shall waive all plan check and inspection fees and
all permit costs associated with the Project, including any similar fees and costs payable to the City of San
Bernardino Municipal Water Department, as part of its in-kind contribution towards the Project.
Reimbursement to City and the City of San Bernardino Municipal Water Department for the cost of plan
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check and inspections for the Project as located within the City shall be as provided in Section 6.3 of this
Agreement.
5.1.3 Use of Rights-of--Way and Project Stations; Encroachment Permits. City shall
allow, subject to appropriate conditions that City determines, the use of City right-of--ways and Project
Rights-of--Way in accordance with the Plans. Within the City right-of--ways or Project Rights-of--Way,
City shall grant such encroachment permits, for both the Construction Phase and any permanent
encroachment permit approved by City and the Council as referenced in Sections 2.19, 4.2, 4.3.1,
necessary to complete the Project, subject to appropriate and typical conditions for encroachment permits
that City issues for similar projects, and issue such other necessary permits and approvals for the
construction of the Project in accordance with the Plans. Such encroachment permits shall, at a
minimum, provide for: (a) Omnitrans' access to, maintenance of, and use of the Project Stations for the
uses and purposes provided for in this Agreement and in the Plans; (b) Omnitrans' access to the TSP
equipment panels for the uses and purposes provided in this Agreement; and (c) Omnitrans' access to,
exclusive right to use, and maintenance of exclusive sbX BRT lanes for the uses and purposes provided in
this Agreement and in the Plans. Subject to Section 4.3.5 of this Agreement, the City will allow exclusive
sbX BRT lanes, as denoted in the Plans, to be designated for and exclusively used by sbX BRT buses, and
to be restricted from use by any non-sbX related traffic except for emergency vehicles or the temporary
use of such lanes in emergency situations by non-sbX related traffic in order to maintain the public health,
safety, or welfare.
5.1.4 Support Personnel, Project Review. City shall provide such City staff support as
it shall deem necessary to fulfill the obligations of City pursuant to this Agreement. Such City staff
support shall include the appropriate individuals or consultants that will work with Omnitrans from the
Implementation Phase through the end of the Construction Phase of the Project. City shall provide staff
and/or City-retained consultant to: (i) attend planning and coordination meetings with Omnitrans
representatives and consultants; (ii) review and approve the Project engineering design plans and
specifications for work to be undertaken by Omnitrans public works contractors within jurisdictional
limits of the City; (iii) review technical reports; (iv) review traffic patterns and traffic lane closures during
construction; (v) review and approve traffic control plans; (vi) cooperate and work with Omnitrans to
perform start-up, testing, coordination and acceptance of TSP equipment; (vii) perform all plan reviews,
plan approvals and construction inspections; (viii) assist in the design, site selection and location of all
Project Stations and TOD opportunities within the Project; (ix) issue the necessary and appropriate
permits for all approved work; and (x) provide inspection of construction and pre-construction activities
in coordination with the Omnitrans provided CM.
5.1.5 Relocation of City Utilities, Issuance of Perrnits for Relocations. If required by
the Plans for the Project, or if during construction of the Project, it is determined that existing City
Utilities require relocation, the Parties shall endeavor to work together to bring about this result. City
agrees to issue no cost permits to Omnitrans, and to undertake good faith efforts to obtain similar no cost
permits on behalf of Omnitrans from the City of San Bernardino Municipal Water Department, for the
relocation of City Utilities; provided, however, that all such relocations of City Utilities shall be without
any cost whatsoever to City or the City of San Bernardino Municipal Water Department, except as may
be applicable pursuant to Section 5.1.7, and provided that Omnitrans will design such potential
relocations with no degradation in service to City and City of San Bernardino Municipal Water
Department customers for utility, water, storm drain, and sewer services. If the Plans so require, or if
during construction of the Project, it is determined that existing City Utilities require relocation, the
Parties shall endeavor to work together to bring about this result with no cost to the City or the City of
San Bernardino Municipal Water Department.
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5.1.6 Other Utilities. If required by the Plans for the Project, or if during construction
of the Project, it is determined that existing utility lines of other governmental agencies or investor owned
private utilities require relocation, the Parties shall endeavor to work together to bring about this result.
As a major stakeholder in the Project, City shall exercise its authority and rights, if provided and to the
extent permitted in the franchise agreements between City and various governmental agencies or investor
owned private utilities, by requiring the franchisee to design and relocate such utilities as are necessary
for the construction of the Project. Omnitrans shall be solely responsible and pay all costs associated with
the relocation of all conflicting utilities located or hereafter discovered within the City public rights-of-
way as necessary to accommodate the Project only to the extent that an applicable franchise agreement,
easement or other right granting the utility purveyor a prior right, does not require such utility purveyor to
relocate utility lines at its expense within the City public rights-of--way.
5.1.7 City Utilit,~p>;rades. Any increased capacity or upgrades to any City or Water
Department owned utility lines as may be requested in writing by City or the Water Department to be
undertaken by Omnitrans simultaneously with the relocation of any such City or Water Department
owned utility lines shall be at the sole cost of City and/or Water Department with respect to the
incremental costs related to such increased capacity. Such upgrades shall be identified prior to the
approval of the Plans in order to be introduced into the schedule for the Project. Any costs incurred as a
result of necessary schedule changes shall be part of the incremental costs associated with such upgrades
as will cost associated with design of said upgrades.
5.1.8 Disposition of City Property/Equipment Replace or Removed During the Project.
City shall have the right to determine the disposition of any City-owned property or equipment that is
replaced or removed during construction of the Project (e.g., traffic control signals, street lights, traffic
control signs, trees, etc.). If City desires to salvage any of its property or equipment, such property or
equipment must be identified prior to completion of the 100% design review and identified on the Plans
for the Project. The City will work with Omnitrans to identify an appropriate location for the disposition
of any of its property or equipment and will coordinate the disposition or salvage with the contractor. The
costs associated with the disposition or salvage of any City -owned equipment or property shall be
considered a Project expense and included as part of the construction contract. All such salvage work
shall be completed in a timely manner and in accordance with the established construction schedules for
the Project.
5.2 Construction Phase. City shall undertake the following commitments during the
Construction Phase of the Project:
5.2.1 Use of Recycled Asphalt. If and to the extent deemed acceptable by the City
Engineer and with the approval of the City Engineer, City may allow Omnitrans to use RAP using the
CIR method whenever feasible. Omnitrans and City acknowledge and agree that utilization of RAP using
the CIR method may be an acceptable method to preserve the natural environment and reduces waste, and
Omnitrans has determined that such use of the CIR method may provide Omnitrans with the most cost
effective material for constructing streets and public rights-of--way.
5.2.2 Support Personnel, Project Review. During the Construction Phase of the
Project, City shall assign such number of City inspectors as determined to be necessary by City to review
and inspect those aspects of the construction work City deems necessary. City shall also work with
Omnitrans CM firm to utilize inspections and inspection reports as an extension of City inspection staff to
the extent deemed appropriate by City. The date and time of City inspections shall be coordinated with
Omnitrans and, to the extent feasible, shall accommodate alternate and extended schedules (such as
weekend and overtime hours) to facilitate the progress of the Project construction activities. City
engineering staff or City-retained consultants shall also be available to provide expedited review and
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approval of any field changes that are required due to unforeseen circumstances discovered after the
commencement of construction activities.
5.2.3 Staging_ Temporary Construction Work, and Storage Areas. City shall assist
construction of the Project through allowing Omnitrans access to available and acceptable City-owned
properties, as such sites may be designated on the Plans, for the purpose of storing construction
equipment, staging construction activities, and performing temporary construction activities. Omnitrans
shall be responsible for the insuring of stored equipment and materials, for the maintenance of said sites
and for the restoration of said sites to their pre-existing condition upon completion of the Project. City
and Omnitrans shall work together to select an acceptable location(s) for such purposes and shall execute
a temporary grant of construction easement, at no cost to Omnitrans and as part of City in-kind
contributions. Nothing in this section shall be construed to impose any obligation on City or Agency to
acquire any additional property for purposes of staging, temporary construction work or storage areas for
the Project.
5.2.4 Temporary Traffic Control. City shall work cooperatively with Omnitrans to
coordinate traffic control during the Construction Phase of the Project. To the extent feasible, traffic
control measures shall neither hinder nor delay construction of the Project, or compromise public health
and safety. City shall also cooperate with Omnitrans to establish haul routes that are mutually acceptable
to the Parties and that will not hinder development of the Project. City shall establish methods of
transportation (or traffic control plans), as prepared by Omnitrans or its consultants and as approved by
City, which shall include lane closures, street closures, extended hours of work, weekend work and
holiday work to support the construction schedule and timely completion of the Project. Pursuant to
Section 12.03.090 (A) of the City Municipal Code, lane closures on arterial and collector streets shall be
avoided during morning and evening peak hours to accommodate traffic operation. Standard work hours
are from 7:30 AM to 3:30 PM. If necessary, the Parties shall work together to make special arrangements
to allow work to occur outside of the standard work hours. Consideration must be made for the
convenience of the traveling public, public safety, and access to businesses and residences.
5.3 Operational Phase. City shall undertake the following commitments during the
Operational Phase of the Project:
5.3.1 Maintenance of Landscaping and Irrigation on City-Owned Property and Rights-
of-Way. City shall be responsible for the repair and maintenance of all Landscaping located on City-
owned property or within City public rights-of--way consistent with City standards and funding
availability. City shall be solely responsible for all costs associated with the repair and maintenance of
Landscaping and irrigation, including but not limited to, payment of water usage charges, electrical
charges and landscape servicing fees to such standards of maintenance and repair as shall be determined
by City. Nothing in this Agreement or as a result of City's participation in the Project shall create any
express or implied obligation, commitment, liability, or responsibility whatsoever for City to repair and
maintain all Landscaping located on City-owned property or within the Project Rights-of--Way differently
than all other Landscaping maintained and repaired within the City.
5.3.2 Maintenance of Streets and Rights-of--Way. At its sole cost and expense, City
shall be responsible for the maintenance, striping and marking of all dedicated City streets and City
rights-of--way within the Project consistent with its practice for the maintenance of all other streets and
rights-of--way within the City. Nothing in this Agreement or as a result of City's participation in the
Project shall create any express or implied obligation, commitment, liability, or responsibility whatsoever
for City to maintain or repair the Project Rights-of--Way differently than all other streets and rights-of-
way that are maintained and repaired within the City.
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5.3.3 Maintenance of Street Lighting. At its sole cost and expense, City shall be
responsible for the operation, repair and maintenance of all street lighting that Omnitrans relocates
pursuant to this Agreement.
5.3.4 Maintenance of Traffic Control Signals and TSP Equipment. Except as provided
in Section 4.3.3 of this Agreement, City shall be responsible for the operation, repair and maintenance of
all traffic control signals and TSP equipment located at City public rights-of--way intersections or
crossings along the Project, once the installation and testing of such equipment is approved by City and
placed into service. City shall allow Omnitrans reasonable access to modify or revise the TSP as
reasonably necessary to enhance or improve the timing of scheduled sbX BRT service; provided,
however, that Omnitrans shall be fmancially responsible and liable to City for any traffic related accidents
or other damage to facilities caused by willful misconduct, negligent acts, errors or omissions of
Omnitrans and its contractors and agents to adjust or modify the TSP system or traffic control signals and
Omnitrans shall immediately notify City and City Engineer of all such changes to the TSP system or
traffic control signals. Omnitrans shall not be fmancially responsible or liable to City under this section
for the willful misconduct, negligent acts, errors or omissions of the City, its officials, officers,
employees, volunteers and agents that result in any traffic related accidents or other damage to facilities.
This is a comparative negligence provision and each Party shall bear their own costs to the extent to
which they are each negligent. All such access by Omnitrans to the TSP system or traffic control signals
will be provided only with the attendance at each location of authorized City staff, and all work on the
TSP system or traffic control signals shall be directly supervised by authorized City staff, including
documenting the date, time and activities of such work on the maintenance log in the appropriate traffic
control equipment cabinet. Omnitrans shall provide for as a cost of the Project for all such TSP systems
and traffic control signals to be wired to and linked directly to the Traffic Management Center ("TMC")
as presently maintained by City at the City Hall location.
5.3.5 Maintenance of Traffic Control Signag_e. City shall be responsible for the repair
and maintenance of all permanent Traffic Control Signage located on, upon, inside or within City-owned
property or any City public right-of--way.
5.4 Transit Oriented Development (TODD Guidelines. City recognizes that Omnitrans has
adopted a set of "Joint Development Policies and Guidelines" towards the goal, inter alia, of encouraging
TOD on public and private properties adjacent to Omnitrans transit centers and future Project Stations.
Such "Joint Development Policies and Guidelines" are attached to this Agreement as Exhibit "D" for
informational purposes only. City hereby expresses its support for the concept of TOD, and its support of
Omnitrans in its efforts to undertake transit-oriented joint development projects in relation to the Project.
The Parties recognize that an "E" Street Corridor Task Force was constituted in 2007 comprised
of representatives of City, Omnitrans, California State University San Bernardino, San Bernardino
Associated Governments ("SANBAG") and private development interests (collectively, the "Task
Force"). The Task Force has proposed certain written "San Bernardino Express Transit Oriented
Development Policies and Guidelines" (the "City TOD Guidelines") to establish policies and strategies
that enable the Parties to move forward with the Project. The City TOD Guidelines are as attached hereto
as Exhibit "E." Adoption of this Agreement by City constitutes approval in concept by City of such City
TOD Guidelines. The Parties hereby recognize and agree that the implementation of the City TOD
Guidelines shall require official action by the City of San Bernardino Planning Commission and the
Mayor and Common Council as may pertain to the consideration of General Plan Amendments, zone
changes and/or adoption of overlay zoning for one or more areas within the Project. Nothing contained
herein shall be interpreted to limit the exercise of discretion by the City with respect to any such
considerations.
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6. Aeencv's Commitments.
6.1 Commuter ParkingFacilities. Beginning no later than commencement of the Operational
Phase of the Project, and at no-cost to Omnitrans, Agency agrees to designate no less than 200 parking
spaces in Agency-owned parking facilities in close proximity to the Project Stations located between 4th
Street and Rialto Avenue in the downtown area of the City of San Bernardino, for the exclusive use of
park-and-ride commuters using the sbX BRT service. Such designated parking spaces shall be owned and
controlled by the Agency, and at Agency's sole discretion, may be relocated by Agency consistent with
the intent and purpose of this section. Nothing in this section shall prohibit or limit Agency from
controlling access to or from requiring payment for the use of such designated parking spaces.
6.2 Office Space for Omnitrans Use. The Agency has provided office space in the Agency-
owned building located at 201 North E Street in San Bernardino in accordance with the terms of the duly
executed tenant lease agreement between Agency and Omnitrans dated August 1, 2009.
6.3 Payment of City Cost for Plan Check and Permit Fee Waiver. Agency hereby agrees to
reimburse City and City of San Bernardino Municipal Water Department for all City and City of San
Bernardino Municipal Water Department plan check and inspection fees and all permit costs associated
with the Project as located solely within the City as provided in Section 5.1.2 of this Agreement.
7. Acceptance of Public Improvements. Omnitrans shall notify the City Engineer and/or City of San
Bernardino Municipal Water Department Engineer in writing upon completion of all public
improvements that it constructs or develops pursuant to this Agreement for the Project. If the completed
public improvements comply with all applicable federal, state and local laws, ordinances, regulations,
codes, standards, and other requirements, the City and/or City of San Bernardino Municipal Water
Department, in their sole and absolute discretion, shall execute, upon obtaining all appropriate approvals,
at the option of the City either (i) an acceptance in writing of the public improvements identified by
Omnitrans as having been completed by Omnitrans, or (ii) a Notice of Completion for such public
improvements in the form prescribed by Section 3093 of the California Civil Code and shall record such
notice in the Official Records of the County of San Bernardino. Notwithstanding any other provision to
the contrary, upon acceptance of pubic improvements pursuant to this section, City and/or City of San
Bernardino Municipal Water Department shall be solely responsible for the repair and maintenance of all
public improvements and shall be responsible and shall be liable for all claims, demands, causes of action,
costs, expenses, liability, loss, damage or injury of any kind, in law or equity related to the accepted
public improvements from and after the date of any such acceptance. Nothing contained herein shall
relieve Omnitrans of the obligation to provide a separate and additional Notice of Completion to any
contractor performing work on behalf of Omnitrans for the construction or installation of such public
improvements as contemplated by this section.
8. Notice of Existing and/or Upcoming Projects. During the Implementation and Construction
Phases of the Project, City and Agency agree to provide notice or other informational documents to
Omnitrans in a timely manner related to any existing and/or proposed projects, which may impede or
adversely impact the construction or development of the Project. City and Agency hereby further agree to
work with Omnitrans to resolve any scheduling and construction conflicts that may be caused by such
other projects.
9. Determination of In-Kind Contributions. City and Agency shall determine on at least an annual
basis the value of all permits, waivers or deferral of fees, costs of staff and consultants assigned to the
Project and other costs incurred and paid by City and Agency in furtherance of this Agreement. City and
Agency shall submit to Omnitrans such annual compilation of the "in-kind" costs and services that City
and Agency have contributed towards the Project on or before January 1 of each calendar year
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commencing as of January 1, 2010. Exhibit "C" is attached and is identified as the "Planning Department
Policy and Procedures, In-Kind Contributions" of Omnitrans. Exhibit "C" describes the federal
requirements and the method for determining the value of all in-kind contributions and the required
documents to be submitted in support of such in-kind contributions. The Parties hereby agree that they
shall be bound by Exhibit "C" in the determination of what shall constitute in-kind contributions for
purposes of the Project.
10. Condition Precedent, Reserved Authority. Any commitment that the City or Agency agrees to
pursuant to this Agreement shall be subject to Omnitrans securing adequate funds from Omnitrans
resources, the federal government, the State of California, and other local funding sources.
11. Compliance with Environmental Laws. In the course of performing any Project-related activity,
Omnitrans agrees: (a) to comply with any and all Environmental Laws; (b) to ensure that no Project-
related activity shall cause Omnitrans, Agency or City to be in violation of any Environmental Laws; (c)
that if Omnitrans fails or refuses to comply with any Environmental Laws, or causes City or Agency to be
in violation of any Environmental Laws, City and/or Agency may at their discretion, (i) revoke any permit
or authorization required for the Project upon providing Omnitrans thirty (30) days prior written notice
pursuant to the notice provisions contained within this Agreement, and (ii) require Omnitrans to
undertake corrective or remedial action to address any release or threatened release or discharge of the
hazardous substance, pollutant or contaminant, water, wastewater or storm water.
12. Hazardous Substances. Omnitrans represents that it has complied with all applicable provisions
of CEQA and has properly prepared, circulated and adopted an Initial Study/ Mitigated Negative
Declaration (the "IS") and the Mitigation Monitoring and Reporting Program (the "MMRP") for the
Project prior to the date of this Agreement. The City and the Agency have relied upon all CEQA
processes as previously undertaken and completed by Omnitrans in the approval, execution and delivery
of this Agreement and the statements contained in the IS and the MMRP committing Omnitrans to
address all Hazardous Substances discovered by Omnitrans during the Project-related activities in the
manner as approved by Omnitrans in the IS and the MMRP. All demolition, removal and construction
activities of Omnitrans shall be strictly in accordance with the IS and the MMRP and, in particular,
Sections 5.1.2, 5.2.6 and 5.3.6 of the IS and the applicable provisions of the MMRP. Any Hazardous
Substances discovered by Omnitrans during Project-related activities shall be handled, mitigated, and/or
remediated in accordance with all applicable state and federal environmental laws, rules and regulations,
including, but not limited to; the IS and the MMRP.
12.1 For purposes of this section "Hazardous Substance" means any and all substances,
chemicals, wastes, sewage, materials, or emissions which are now or hereafter regulated, controlled,
prohibited, or otherwise affected by any local, state, or federal statute, ordinance, code, rule, regulation,
order, decree, permit, or other law now or hereafter in effect including, without limitation, (a) any
substance defined as a "hazardous substance", "hazardous material", "hazardous waste", "toxic
substance", or "air pollutant" in the Comprehensive Environmental Response, Compensation and
Liability Act, as amended ("CERCLA"), 42 U.S.C. § 9601, et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. § 1801, et seq., as amended, the Resource Conservation and Recovery Act,
as amended ("RCRA"), 42 U.S.C. § 6901, et seq., the Federal Water Pollution Control Act, as amended,
33 U. S. C. § 1251, et seq., or the Clean Air Act, as amended, 42 U. S. C. § 740 1, et seq., (b) any
substance defined as a "hazardous substance", "hazardous waste", "hazardous substance", "extremely
hazardous waste", "RCRA hazardous waste", "waste" or "hazardous material" in §§ 25115, 25117,
25122.7, 25120.2, 25124, 25281, 25316 or 25501 of the California Health and Safety Code, as amended,
or listed pursuant to § 25140 of the California Health and Safety Code, as amended; (c) any chemical or
other substance regulated by the California Safe Drinking Water and Toxic Enforcement Act of 1986,
California Health and Safety Code § 25249.5, et seq., as amended; (d) any substance the presence of
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which at any Project location causes or threatens to cause a nuisance upon said location or to adjacent
properties or poses or threatens to pose a hazard to the health or safety of human beings; (e) any substance
defined as a "waste" or "hazardous substance" in § 13050 of the California Water Code, as amended; (f)
any substance listed in California Labor Code §§ 6501.7 or 9004, as amended; and (g) any substance the
presence of which at any Project location or at nearby or adjacent properties could constitute a trespass.
In addition to the foregoing, to the extent not akeady included therein, the term "Hazardous Substance"
also means (i) asbestos (including, without limitation, asbestos containing materials); (ii) flammable,
explosive, infectious, carcinogenic, mutagenic, or radioactive materials; (iii) petroleum or any substance
containing or consisting of petroleum hydrocarbons (including, without limitation, gasoline, diesel fuel,
motor oil, waste oil, grease, or any other fraction of crude oil); (iv) paints and solvents; (v) lead; (vi)
cyanide; (vii) DOT; (viii) printing inks; (ix) acids; (x) pesticides; (xi) ammonium compounds; (xii)
polychlorinated biphenyls; (xiii) radon and radon gas; and (xiv) electromagnetic or magnetic materials,
substances, or emissions.
13. Insurance Requirements. Prior to the commencement of any construction activities related to the
Project, Omnitrans shall furnish or cause to be furnished, to both City and Agency, the insurance
coverage as specified in Exhibit "F" (Exhibit "F" being the City and Agency insurance requirements)
attached hereto and incorporated herein by this reference. All such insurance requirements shall conform
with the requirements as may then be in effect in connection with the issuance by City of any
encroachment permit and any permanent encroachment permit as further provided in Sections 2.19, 4.2,
4.3.1 and 5.1.3. In addition, City shall have the right to increase the insurance coverage dollar amounts
and the types of insurance coverages as set forth in Exhibit "F" to the extent that either (i) such increase in
coverage dollar amounts and added coverage types is consistent with the insurance coverage dollar
amounts and the types of coverages for projects of similar size and scope or (ii) such increase in coverage
dollar amounts and added coverage types is otherwise recommended to City in writing by an independent
insurance broker as then current industry standards. City may require Omnitrans to comply with such
modifications to Exhibit "F" upon ninety (90) calendar days' prior written notice from City to Omnitrans.
14. Mutual Indemnification.
14.1 City, Agency, and Omnitrans shall defend, indemnify and hold the other Party, their
officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands,
causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property
or persons, including wrongful death, to the extent arising out of or incident to any intentional or
negligent acts, errors or omissions of the indemnifying Party or Parties, their officials, officers,
employees, or agents in the performance of the Project or this Agreement, including without limitation the
payment of all consequential damages and reasonable attorneys' fees, expert witness fees and other
related costs and expenses of defense. The sole exception to the indemnifying Party's obligation to
indemnify shall be for acts of negligence or willful misconduct of the indemnified Party or Parties, their
officials, officers, employees, or agents. This is a comparative negligence provision and each Party shall
bear their own costs to the extent to which they are each negligent. The indemnifying Party or Parties
shall defend, at their 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 indemnified Party or Parties, their
officials, officers, employees, volunteers and agents. The indemnifying Party or Parties shall pay and
satisfy any judgment, award or decree that may be rendered against the indemnified Party or Parties, their
officials, officers, employees, volunteers and agents in any such suits, actions or other legal proceedings.
Each Party's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by any
other Party or Parties, their officials, officers, employees, volunteers and agents.
14.2 Notwithstanding the mutual indemnification provisions as provided in Section 14.1
above, Omnitrans recognizes and agrees that the City and the Agency are separate legal entities existing
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under California law and neither the City nor the Agency shall be responsible for the actions or inactions
of the other pursuant to this Agreement. Both the City and the Agency shall be responsible separately for
their required performance obligations and financial obligations pursuant to this Agreement and neither
the City nor the Agency shall be deemed to be a guarantor, nor an obligated party for the actions or
inactions of the other. The City and the Agency have incurred separate legal obligations pursuant to this
Agreement that shall be performed by the City or the Agency, as applicable, and any default by either the
City or the Agency of an obligation that was incurred by either the City or the Agency shall not become
the performance obligation or the financial obligation of the other.
15. Audit and Inspection of Records.
15.1 The Parties agree that their respective records, which shall include, but not be limited to,
Project files, accounting records, written policies and procedures, public bid documents, engineering and
construction contracts, consultant contracts and payment history, contract files (including plans and
specifications), original estimates, correspondence, change order files (including documentation covering
negotiated settlements), invoices, and any other supporting evidence relied upon to substantiate charges
related to the Project (collectively referred to as the "Records"), shall be open to inspection and subject to
audit and reproduction by each Parties' auditors or other authorized representatives at all reasonable
times, in order for the Parties to enforce their rights under this Agreement and permit evaluation of
expended costs. The cost of said audit shall be at the expense of the Party requesting the audit.
15.2 The Parties, through any of their duly authorized representatives, upon providing at least
forty-eight (48) hours prior written notice, shall be afforded access to all of the Records of the other
.related to the Project during normal business hours and shall be allowed to interview any employee,
consultant or contractor of the other, subject to reasonable limitations, throughout the term of this
Agreement.
15.3 Information contained in the Records or other matters discovered during such audits or
inspections shall not be disclosed to third parties unless required by law or unless otherwise resulting
from or related to the pursuit of any remedies or the assertion of any rights by the Parties hereunder.
15.4 All Records pertaining to the Project must be retained by the Parties for three (3) years,
or for any longer period required by law, following the complete fulfillment and satisfaction by the
Parties of all commitments made and undertaken pursuant to this Agreement.
16. Exhibits. The following exhibits are hereby incorporated into and made a part of this Agreement
wherever referred to as though set forth at length, except where certain portions of specific exhibits have
been deleted or superseded by sections of this Agreement:
Exhibit "A" Project Description
Exhibit "B" In-Kind Staff Support Form
Exhibit "C" Planning Department Policy and Procedures, In-Kind
Contributions
Exhibit "D" Joint Development Policies and Guidelines
Exhibit "E" City TOD Guidelines
Exhibit "F" Insurance Requirements
Exhibit "G" Initial Study/Mitigated Negative Declaration and supporting
technical studies and reports
Exhibit "H" Final approved version of Mitigation and Monitoring Reporting
Program
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17. Dispute Resolution.
17.1 Negotiation. In the event of a dispute, claim or controversy arising from or in relation to
this Agreement, the Parties agree to undertake good faith attempts to resolve said dispute, claim or
controversy within seven (7) calendar days after the receipt of written notice from the Party alleging that a
minor dispute, claim or controversy exists. The Parties additionally agree to cooperate with the other
Party in scheduling negotiation sessions. However, if said matter is not resolved within thirty (30)
calendar days after conducting the first negotiating session, any Party may then request that the matter be
submitted for mediation pursuant to this Agreement.
17.2 Mediation. If any Party, in accordance with this Agreement, requests that an unresolved
dispute, claim or controversy be submitted to mediation, the Parties agree first to undertake good faith
efforts to settle the dispute through mediation administered by JAMS pursuant to its Comprehensive
Mediation Rules and Procedures. If any Party rejects the resulting mediation determination, within a
period of fifteen (15) calendar days after such decision is deemed received, then, upon written notice by
any Party or Parties to the other Parties, all disputes, claims, questions or differences shall be fmally
settled through non-binding arbitration administered by JAMS in accordance with its Comprehensive
Arbitration Rules and Procedures.
17.3 Arbitration. In the event of a dispute, claim or controversy arising from or in relation to
this Agreement that cannot be resolved pursuant to Section 17.2 above, or the breach, termination,
enforcement, interpretation or validity thereof (including the determination of the scope or applicability of
this Agreement to arbitrate), or any Parties' rejection of a mediation determination pursuant to this
Agreement (collectively referred to as the "Controversy"), the Parties agree to submit the Controversy to
non-binding arbitration conducted by one (1) arbitrator selected in the manner as provided herein. Such
arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and
Procedures. The arbitrator must be mutually acceptable to all Parties that are the subject of the
proceeding, and shall be approved as such in writing prior to commencement of any arbitration
proceeding. Any award granted pursuant to this section shall be non-binding, advisory and shall not be
entered as a judgment in any court (except on mutual consent of the Parties). The award shall not be cited
as evidence or precedent, with any preclusive effect, in any court, arbitration, or other proceeding. The
Parties shall not refer to any arbitration proceeding entered into pursuant to this section or any award,
pleadings, briefs, testimony or process relating to the same in any subsequent proceeding.
17.4 Legal Action. Compliance with the provisions of Sections 17.1 through 17.3 shall be a
condition precedent to any legal action, provided that nothing herein shall limit the Parties' right to
terminate this Agreement for failure to comply with the insurance provisions herein, default, a lack of
Project funding, or an unreasonable and prolonged disruption in service caused by the City.
17.5 Allocation of Fees and Costs. The Parties agree to share the fees of the mediator,
arbitrator and all costs associated with mediation and arbitration; provided, however, each Party that is
subject to the proceeding shall be responsible for its own legal costs, including attorneys' fees and the
costs associated with experts.
18. Default.
18.1 Notice of Default. Failure or delay by any Party to perform any material term or
provision of this Agreement shall constitute a default under this Agreement; provided, however, that if the
Party or Parties who are otherwise claimed to be in default by the other Party or Parties commences to
cure, correct or remedy the alleged default within thirty (30) calendar days after receipt of written notice
specifying such default and thereafter diligently undertakes efforts to complete such cure, correction or
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remedy, such Party or Parties shall not be deemed to be in default hereunder. The Party claiming that a
default has occurred shall give written notice of default to the defaulting Party or Parties, specifying the
deficiencies causing the alleged default. Delay in giving such written notice shall not constitute a waiver
of any default nor shall it change the time of default; provided, however, the non-defaulting Party or
Parties shall have no right to exercise any remedy for a default hereunder without first delivering the
written default notice as specified herein.
18.2 Failure to Cure. In the event that the defaulting Party or Parties fails to commence to
cure, correct or remedy a default within thirty (30) calendar days following receipt of written notice, or
thereafter fails to diligently complete such cure, correction or remedy, a breach of this Agreement shall be
deemed to have occurred. In the event of a breach, the non-defaulting Party or Parties may terminate this
Agreement through a written notice of termination. Disputes regarding the facts that may have given rise
to termination under this section shall be subject to the dispute resolution provisions provided above, but
the right to terminate for such reason shall not be subject to review.
18.3 Termination of Funding. Both Omnitrans and City shall retain their rights to terminate
this Agreement and the Project at any time due to the lack of adequate federal or state funding or the lack
of or denial of any required approval from any federal, state or local agency. Disputes regarding the facts
that may have given rise to termination under this section or the right of Omnitrans to terminate pursuant
to this section shall not be subject to the dispute resolution provisions as provided in this Agreement. In
the event that work has commenced on the Project which results in any portion of aright-of--way upon
which construction activities have commenced and have not been completed as of the date of
determination that funding is insufficient or has otherwise been denied for the Project, Omnitrans shall
use other available sources of funds to repair such rights-of--way to a condition that allows for vehicular
and pedestrian use of any such rights-of--way without any costs to City. This provision for the completion
or restoration of work on rights-of--way shall survive any termination of this Agreement by either
Omnitrans or City.
18.4 Changed Conditions. In the event that any Party to this Agreement, despite its best
efforts, cannot, for reasons beyond the control of the Party, timely satisfy a contingency or condition
required by this Agreement, that Party shall provide immediate written notification to the other Parties
within seven (7) calendar days after the occurrence of the event specifying the reasons for which the
requirements cannot be met. As soon as practically possible thereafter, the Parties shall meet and confer
in good faith to consider the changed conditions and the potentially adverse impacts upon this Agreement.
The Parties shall work in good faith to resolve the problem and if this meet-and-confer process results in a
recommended restructured form of this Agreement, representatives of all Parties will recommend such
changes as necessary to the individual, Party or governing body authorized to amend this Agreement.
Any approval of such restructured Agreement shall be subject to the amendment provisions provided
below.
19. Force Ma~eure. In addition to specific provisions of this Agreement, performance by any Party
hereunder shall not be deemed to be in default, or considered to be a default, where delays or defaults are
due to the force majeure events of war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires,
casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes or
lack of transportation, weather-caused delays, inability to secure necessary labor, materials or tools,
delays of any contractors, subcontractor or supplier, which are not attributable to the fault of the Party
claiming an extension of time to prepare or acts or failure to act of any public or governmental agency or
entity. Delays encountered by any Party in obtaining necessary funding for the Project, governmental
actions, reviews, approvals and permits shall not be deemed to be an enforced delay or a force majeure
event pursuant to this section. An extension of time for any such force majeure event shall be for the
period of the enforced delay and shall commence to run from the date of occurrence of the delay;
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provided, however, that the Party that claims the existence of the delay has first provided each of the other
Parties with written notice of the occurrence of the delay within seven (7) calendar days after the
commencement of such occurrence or delay. A Party's failure to timely submit such notice of the
occurrence of the delay pursuant to this section shall be precluded from asserting the occurrence of an
enforced delay or force majeure event.
20. Attorneys' Fees. Except as otherwise expressly provided herein, each Party who files any action
or brings any action or proceeding against the other arising from this Agreement, seeks resolution of
disputes pursuant to this Agreement or is made a party to any action or proceeding brought by any other
person or governmental entity, shall bear its own costs and fees.
21. Laws and Regulations. Each Party 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 this
Agreement or any work related to the Project, including all CaUOSHA requirements, and shall give all
notices required by law. Each Party shall be liable for all violations of such laws and regulations in
connection with this Agreement or any work related to the Project. If any Party performs any of its
obligations hereunder knowing that its actions are contrary to such laws, rules and regulations and without
giving written notice to the other, the violating Party shall be solely responsible for all costs arising
therefrom. The violating Party shall defend, indemnify and hold the other, 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.
22. Approvals. Approvals required of Omnitrans, Agency or City, or any officers, agents or
employees of any Party, shall not be unreasonably withheld and approval or disapproval shall be given
within a reasonable time.
23. Miscellaneous Terms.
23.1 Notices, Demands and Communications Among_the Parties.
23.1.1 Formal notices, demands and communications between Omnitrans, Agency and
City shall be deemed sufficiently given i£ (i) dispatched by registered or certified mail via the United
States Postal Service, postage prepaid, return receipt requested, as designated in this section; or (ii) by
messenger service for immediate personal delivery; or (iii) by electronic transmittal, including fax
transmissions with telephonic verification receipt. Such written notices, demands and communications
may be sent in the same manner to such other addresses as the Parties may from time to time designate by
written notice to the other Parties.
23.1.2 All notices, demands and communications shall be sent, as follows:
TO OMNITRANS:
Omnitrans
Attention: CEO/General Manager
1700 West Fifth Street
San Bernardino, CA 92411
TO CITY:
City of San Bernardino
Attn: City Manager
300 North D Street, 6th Floor
San Bernardino, CA 9241 S
TO AGENCY:
Redevelopment Agency of the City of
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San Bernardino
Attn: Executive Director
201 North E Street
San Bernardino, CA 92401
23.1.3 Notices that are dispatched by registered or certified mail through the United
States Postal Service shall be deemed to be received, regardless of whether or when any return receipt is
received by the sender or the date set forth on such return receipt, five (5) calendar days after deposit with
the United States Postal Service. Notices that are dispatched by messenger for immediate personal
delivery services shall be deemed received upon the day dispatched. Notices dispatched by express
delivery services shall be deemed received upon execution of the delivery receipt by the Party receiving
such notices. Notices dispatched through electronic transmittals shall be deemed received upon
telephonic verification of such receipt.
23.2 Amendment. This Agreement may be amended at any time by the mutual consent of the
Parties by an instrument in writing signed by both Parties.
23.3 Further Actions and Instruments. Each of the Parties shall cooperate with and provide
reasonable assistance to the other to the extent contemplated hereunder in the performance of all
obligations under this Agreement and the satisfaction of the conditions of this Agreement.
23.4 Counterparts. This Agreement may be signed in counterparts, each of which shall
constitute an original.
23.5 Time is of the Essence. For each provision of this Agreement which states a specific
amount of time within which the requirements thereof are to be satisfied, time shall be deemed of the
essence.
23.6 Third Party Beneficiaries. This Agreement and the performance of the Parties'
obligations hereunder are for the sole and exclusive benefit of the Parties. No person or entity who or
which is not a signatory to this Agreement shall be deemed to be benefited or intended to be benefited by
any provision hereof, and no such person or entity shall acquire any rights or causes of action against the
Parties hereunder as a result of any Party's performance or nonperformance of their respective obligations
under this Agreement.
23.7 Governing Law. This Agreement shall be governed by the laws of the State of California
without regard to conflicts of laws principles. This Agreement shall be deemed to have been made in the
County of San Bernardino, California, regardless of the order of the signatures of the Parties affixed
hereto. Any litigation or other legal proceedings which arise under or in connection with this Agreement
shall be conducted in a federal or state court located within or for San Bernardino County, California.
The Parties consent to the personal jurisdiction and venue in federal or state court located within or for the
County of San Bernardino, California, and hereby waive any defenses or objections thereto including
defenses based on the doctrine of forum non conveniens.
23.8 Construction; References; Captions. Since the Parties or their agents have participated
fully in the preparation of this Agreement, the language of this Agreement shall be construed simply,
according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or
period for performance shall be deemed calendar days and not work days unless specifically stated to the
contrary as business days or work days. All references to City include all officials, officers, employees,
personnel, agents, volunteers, contractors and subcontractors of City, except as otherwise specified in this
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Agreement. All references to Agency include all officials, officers, employees, personnel, agents,
volunteers, contractors and subcontractors of Agency, except as otherwise specified in this Agreement.
All references to Omnitrans include its officials, officers, employees, personnel, agents, volunteers,
contractors and subcontractors, except as otherwise specified in this Agreement. The captions of the
various articles and paragraphs are for convenience and ease of reference only, and do not define, limit,
augment, or describe the scope, content, or intent of this Agreement.
23.9 Waiver. No delay or omission in the exercise of any right or remedy of anon-defaulting
Party or Parties on any default shall impair such right or remedy or be construed as a waiver. Any
Parties' consent or approval of any act by the other Parties requiring their consent or approval shall not be
deemed to waive or render unnecessary its consent to or approval of any subsequent act of the other Party.
Any waiver by any Party of any default must be in writing and shall not be a waiver of any other default
concerning the same or any other provision of this Agreement.
23.10 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are
cumulative and the exercise by any Party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the same default or any
other default by the other Parties. All warranties and promises to indemnify shall survive the termination,
abandonment, or completion of this Agreement.
23.11 Legal Counsel. Each Party acknowledges that: (i) it has read this Agreement; (ii) it has
had the opportunity to have this Agreement explained to it by legal counsel of its choice; (iii) it is aware
of the content and legal effect of this Agreement; and (iv) it is not relying on any representations made by
the other Party or any of the employees, agents, representatives, or attorneys of the other Party, except as
expressly set forth in this Agreement.
23.12 Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid
judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not
affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which
are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder.
23.13 Binding Effect. The terms of this Agreement shall inure to the benefit of, and shall be
binding upon, each of the Parties and their respective successors and assigns.
23.14 Authorized Representatives. The person or persons executing this Agreement on behalf
Omnitrans, Agency and City warrant and represent that he/she has the authority to execute this
Agreement on behalf of that Party and that they have the authority to bind that Party to the performance
of its obligations hereunder.
23.15 Entire Agreement. This Agreement constitutes the entire and integrated agreement of
Omnitrans, Agency and City with respect to the subject matter hereof and supersedes any and all prior
and contemporaneous oral or written negotiations, representations or agreements.
[SIGNATURES ON THE FOLLOWING PAGE]
21
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SIGNATURE PAGE TO COOPERATIVE AGREEMENT
CITY OMNITRANS
By. ~ ` By:
harles Mc eely, City an r Durand L. Rall, CEO/General Manager
Dated: ~~~~~~`/C."~
Dated: ~~(9~
APPROVED AS TO LEGAL FORM:
By:
ty Attorney
ATT T:
' ,._..'
By: _..~- `.;-'~,,('~,,~-~~ 'J ~ ` .ter k~-~~_
City Clerk
AGENCY ~
By:
Emil Marzullo, Interim Ex tive D tceir or
Dated: 7 ~' ~ ~ ``/
APPROVE AS TO LEG ORM:
By:
Legal Couns
APPROVED AS TO LEGAL FORM:
Legal Counsel
22
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CDC/2009-55
Exhibit "A"
Project Description - sbX E Street Corridor BRT Project
Omnitrans sbX E Street Corridor BRT Project
NroposQds6xAlgnenetiriRelinedLl'A} -••- ~ityl~bliniafl2q
-_-- PreliniinaryLocationsaFExclusiueCenterLanes - propose~f~tedland,~,a~1.~1.4etrol+iakExcens{on
D Potential sbX Staiiats
o Paacr~ti~lsb%StailonswrfahPa~k-and-Ride
EXHIBIT "A"
Po@V i2-3CI.OF 1.@ 5 4 1.OMiin
CDC/2009-55
Project Description - sbX E Street Corridor BRT Project
Over the past four years, the sbX E Street Corridor BRT Project (The Project) has evolved as the highest
priority corridor identified in the System-Wide Transit Corridor Plan for the San Bernardino Valley,
through the Alternatives Analysis and selection of the Locally Preferred Alternative (LPA), through the
Federal Transit Administration ("FTA") Small Starts rating process, to the current Project Development
phase. The intent now is to refine the Phase 1 LPA that received a "Medium" rating from FTA in 2007
into the most appropriate project that can be implemented to serve the Cities of San Bernardino and Loma
Linda.
The original 15.7 mile long LPA included 5.4 miles exclusive side-running lanes and 10.9 miles of mixed
flow BRT operation, with 23 stations, four park-and-ride facilities for 610 spaces, and transit signal
priority treatments and one queue jump lane to optimize sbX vehicle operating speed and travel time,
while minimizing travel delay, right-of--way acquisitions and other community and environmental
impacts.
Beginning at the north end-of--line station at Palm Avenue and Kendall Drive, the station will include a
sbX turnaround facility and park-and-ride, passenger drop-off/kiss-n-ride, and a driver restroom facility
for bus layovers. The sbX vehicles will operate in mixed flow lanes on Kendall Drive between Palm
Avenue and University Parkway.
The sbX vehicles will use University Parkway and the main entrance loop and sbX station to serve the
California State University San Bernardino campus and provide connections with campus shuttle buses
and local Omnitrans buses including routes 2, 5, 7, and 11.
From University Parkway/Kendall Drive, the sbX vehicles will operate in mixed flow lanes with side
running stations at Little Mountain Parkway with split (northbound and southbound), far-side platforms;
Shandin Hills Drive with split, far-side platforms; Marshall Boulevard with split platforms on the north
side of Marshall Boulevard; Highland Avenue with split, near-side platforms; and Baseline Street with
split platforms, both on the south side of Baseline Street to minimize impacts to adjacent properties. The
Marshall Boulevard station will include apark-and-ride facility on the two properties, one on each side of
E Street, on the north side of Marshall Boulevard. The split station platforms will both be located to
facilitate access to the park-and-rides and minimize impacts to adjacent properties.
EXHIBIT "A"
CDC/2009-55
Exhibit "B"
THE CITY OF SAN BERNARDINO'S
IN-KIND STAFF SUPPORT
ON THE PROJECT DEVELOPMENT TEAM
Year Job Title De artment
FY 2007-OS
FY 2008 - 09
FY 2009 - 10
FY 2010 -11
FY 2011 - 12
FY 2012 -13
FY 2013 - 14
EXHIBIT "B"
CDC/2009-55
Exhibit "C"
Omnitrans Planning Department Policy and Procedures, In-Kind Contributions
1.0 POLICY STATEMENT
Omnitrans Planning and/or IPMO staff shall ensure that the applicable grant(s) file and contract records
properly document any In-Kind Contributions that are allowable and necessary to accomplish program
activities in accordance with applicable federal regulations. Costs used to satisfy an Omnitrans
[hereinafter referred to as "Grantee's"] matching share or cost-participation requirement may be financed
using either or both of the following:
^ Allowable cost incurred by the Grantee;
^ The value of third-party in-kind contributions.
1.1 SCOPE AND INTENT
The purpose of this policy and procedure is to describe the process for valuing the in-kind contribution(s)
and documenting the record. .The grantee's records must show how it arrived at the valuation placed on
the in-kind contributions. .
2.0 DEFINITION OF TERMS
Cooperative Agreement
Is a legal instrument reflecting a relationship between the U.S. Government and a State, a local
government, or other recipients, and is used when:
1. The principal purpose of the relationship is to transfer a thing of value to the
State, local government, or other recipients to carry out a public purpose of support or stimulation
authorized by a law of the United States instead of acquiring (by purchase, lease, or barter)
property or services for the direct benefit or use of the U.S. Government; and 2) Substantial
involvement is expected between the Federal agency and the State, local government, or other
recipient when carrying out the activity contemplated in the agreement.
In-Kind Contributions represent the value of non-cash contributions provided by: (1) the
recipient, (2) other public agencies and institutions, and (3) private organizations and individuals.
In-kind contributions may consist of charges for real property and equipment, and value of goods
and services directly benefiting and specifically identifiable to the grant program. When
authorized by Federal legislation, property purchased with Federal funds may be considered as
grantee's in-kind contribution. Equipment can be donated, if FTA and the recipient agree on its
value - -then only when authorized by Federal legislation may property purchased with Federal
funds be considered as the recipient's in-kind contributions.
Local Government
Means a local unit of government including specifically a county, municipality, city, town,
township, local public authority, special district, intrastate district, council of governments,
EXHIBIT "C"
CDC/2009-55
sponsor group representative organization, and other regional or interstate government entity, or
any agency or instrumentality of a local government.
Property
Means, unless otherwise stated, real property, equipment, supplies, intangible property and debt
instruments.
Third-party Contributions
Means, property or services which benefit a federally assisted project or program and which are
contributed by non-Federal third parties without charge to the recipient, or a cost-type contractor
under the grant agreement.
Third party in-kind contributions may be in the form of real property, equipment, supplies and
other expendable property, and the value of goods and services directly benefiting and
specifically identifiable to the project or program.
3.0 RESPONSIBILITIES
The responsibilities defined herein are provided within the context of this policy and procedure.
Any deviation from the responsibilities described below must be approved in writing by
OMNTI'1tANS Chief Executive Officer/General Manager.
Project Manager
The Project Manager in cooperation with the Director of Planning shall be responsible for
obtaining written documentation from the recipient or Third Party of their In-Kind Contribution.
The letter of documentation must contain a record of the valuation process utilized [e.g. Third
Party donates office space; the contribution letter must contain statement that the office space is
valued at the fair market rental value, along with the any required supporting documentation on
the fair market rental value, such as valuation by a certified real property appraiser.]
Director of Planning
Omnitrans Director of Planning has overall responsibility for ensuring that the contract and project
files are properly documented in reference to supporting documentation for in-kind contributions.
Grants Manager
Omnitrans Grants Manager shall ensure that the applicable grant files associated with the funding
of the project(s) shall contain documentation of any in-kind contribution.
EXHIBIT "C"
CDC/2009-55
Legal and Regulatory Compliance Manager
The Legal and Regulatory Compliance Manager is responsible for issuing a determination as to
whether the "In-Kind" contribution valuation complies with federal regulations. The
determination shall be issued in writing and documented in the project and applicable grant files.
4.0 PROCEDURES
4.1 VALUATION OF DONATED SERVICES
4.1.1 VOLUNTEER SERVICES
Unpaid services provided to a grantee or subgrantee by individuals will be valued at rates
consistent with those ordinarily paid for similar work in the grantee's or subgrantee's
organization. If the grantee or subgrantee does not have employees performing similar work, the
rates will be consistent with those ordinarily paid by other employers for similar work in the same
labor market. In either case, a reasonable amount for fringe benefits may be included in the
valuation.
4.1.2 EMPLOYEES OF OTHER ORGANIZATIONS
When an employer other than a grantee, subgrantee, or cost-type contractor furnishes free of
charge the services of an employee in the employee's normal line of work, the services will be
valued at the employee's regular rate of pay exclusive of the employee's fringe benefits and
overhead costs. If the services are in a different line of work, paragraph (c) of 49 Code of Federal
Regulations Part 18.24 applies.
1. The Department of Transportation Act (49 U.S.C., Section 22105(a)(1) (D))
limits in-kind service contributions under the local Rail Service Assistance Program to "the cash
equivalent of State salaries for State public employees working in the State rail assistance
program, but not including overhead and general administrative costs."
4.2 VALUATION OF THIRD PARTY DONATED SUPPLIES AND LOANED EQUIPMENT
OR SPACE
If a third party donates supplies, the contribution will be valued at the market value of the supplies at the
time of donation. If a third party donates the use of equipment or space in a building but retains title, the
contribution will be valued at the fair rental rate of the equipment or space.
4.3 VALUATION OF THIItD PARTY DONATED EQUIPMENT, BUILDINGS, AND LAND
If a third party donates equipment, buildings, or land, and title passes to a grantee or subgrantee, the
treatment of the donated property will depend upon the purpose of the grant or subgrant, as follows:
EXHIBIT "C"
CDC/2009-55
4.3.1 AWARDS FOR CAPITAL EXPENDITURES
If the purpose of the grant or subgrant is to assist the grantee or subgrantee in the acquisition
of property, the market value of that property at the time of donation may be counted as cost
sharing or matching.
4.3.2 OTHER AWARDS
If assisting in the acquisition of property is not the purpose of the grant or subgrant,
paragraphs (e) (2) (i) and (ii) of 49 Code of Federal Regulations Part 18.24 apply:
(i) If approval is obtained from the awarding agency, the market value at the time of
donation of the donated equipment or buildings and the fair rental rate of the donated land
may be counted as cost sharing or matching. In the case of a subgrant, the terms of the grant
agreement may require that the approval be obtained from the Federal agency as well as the
grantee. In all cases, the approval may be given only if a purchase of the equipment or rental
of the land would be approved as an allowable direct cost. If any part of the donated property
was acquired with Federal funds, only the non-federal share of the property may be counted
as cost-sharing or matching.
(ii) If approval is not obtained under paragraph (e)(2)(i) of 49 Code of Federal
Regulations Part 18.24, no amount may be counted for donated land, and only depreciation or
use allowances maybe counted for donated equipment and buildings. The depreciation or use
allowances for this property are not treated as third party in-kind contributions. Instead, they
are treated as costs incurred by the grantee or subgrantee. They are computed and allocated
(usually as indirect costs) in accordance with the cost principles specified in 49 Code if
Federal Regulations Part 18.22, in the same way as depreciation or use allowances for
purchased equipment and buildings. The amount of depreciation or use allowances for
donated equipment and buildings is based on the property's market value at the time it was
donated.
4.4 VALUATION OF GRANTEE OR SUBGRANTEE DONATED REAL PROPERTY FOR
CONSTRUCTION /ACQUISITION
If a grantee or subgrantee donates real property for a construction or facilities acquisition project, the
current market value of that property may be counted as cost sharing or matching. If any part of the
donated property was acquired with Federal funds, only the non-federal share of the property may be
counted as cost sharing or matching.
4.5 APPRAISAL OF REAL PROPERTY
In some cases under paragraphs (d), (e) and (f) of 49 Code of Federal Regulations Part 18.24, it will be
necessary to establish the market value of land or a building or the fair rental rate of land or of space in a
building. In these cases, the Federal agency may require the market value or fair rental value be set by an
independent appraiser, and that the value or rate be certified by the grantee. This requirement will also be
imposed by the grantee on sub-grantees.
EXHIBIT "C"
CDC/2009-55
4.6 DOCUMENTATION OF IN-KIND CONTRIBUTIONS
All contributions shall be documented in cooperative agreements and any contributions not utilized on the
project shall be returned to the awarding agency/entity.
5.0 FLOW CHART
None.
6.0 REFERENCES
^ FTA, Grants and Financing - Defmitions
^ Federal Grants Management Handbook, September 2007 - In-Kind Contributions
^ 49 Code of Federal Regulations, ,Part 18 -Matching or Cost Sharing
7.0 ATTACHMENTS
None.
8.0 PROCEDURE HISTORY
Revision Revision Summary of Revision Approved
Level Date
New Procedure 12/03/08
EXHIBIT "C"
CDC/2009-55
Exhibit "D"
Joint Development Policies and Guidelines
1.0 POLICY STATEMENT
The core of all of OMNITRANS' activities and initiatives stems from its commitment to operate
the best-managed transit system possible. Every policy and program will be formulated to
reinforce and sustain OMNITRANS' commitment to provide a safe, reliable, cost-effective public
transit system to all residents in the Riverside/San Bernardino County area.
OMNITRANS, by its very nature, creates opportunities for TRANSIT ORIENTED
DEVELOPMENT (TOD) projects around each of its transit centers and along its major bus
routes. Many TODs have been, and will be, initiated on land not owned by OMNITRANS but
by private entities and other public agencies. In these situations, OMNITRANS will work with
adjacent and nearby property owners to integrate and support accessibility of potential patrons
into the transit system through direct pedestrian access and other means.
In the late 1990's, the Federal Transit Authority (FTA) changed its policies concerning excess
land, originally bought with Federal Funds for station development and now available for related
uses.
The FTA now encourages transit systems, such as OMNTI'RANS, to undertake Transit-Oriented
joint development projects in order to provide extended services to a potentially larger number of
patrons, to secure a revenue stream to support operations of the transit system, and to help shape
communities around each station.
Thus, transit-oriented joint-development (TOD), as directed by OMNITRANS, offers
opportunities to generate urban, infill communities around many existing transit centers and
future sbX stations by leasing or selling property rights to developers. It is expected that the
developer, in concert with OMNITRANS, will not only respond to existing land use opportunities
and market demands, but also create mixed-use, accessible, pedestrian-oriented communities.
These developments, while responding to adjacent uses; such as medical, education, arts and
business centers, will generate new "living villages" made up of a diverse population in terms of
age, ethnicity, income and occupation by creating a mix of economically varied housing types
with retail sales options, work opportunities and environmentally healthy spaces for
neighborhood interactions. In some instances, TOD can foster local and regional mobility needs
by providing opportunities to connect with local and regional transit services.
By focusing development that meets the housing, employment and mobility needs of the
jurisdiction and by concentrating the intensity and density of development around each Transit
Center and future sbX stations; such as healthcare, education and entertainment centers, and
providing major parking facilities at end-of--line stations, the system will provide access to more
people and help to reduce automotive traffic, while enhancing pedestrian activity and human
interaction. OMNITRANS will thus increase its broad-based ridership and establish an
economic base for its daily operations through increased fare box revenue, lease payments from
developers, and sales tax collections.
EXHIBIT "D"
CDC/2009-55
2.0 INTRODUCTION
OMNITRANS defines joint development as a creative program through which property interests
owned and/or controlled by OMNITRANS are marketed to office, retaiUcommercial,
recreationaUentertainment and residential developers with the objective of developing transit
oriented development projects. Projects are encouraged that integrate OMNITRANS's transit
facilities, reduce automobile dependency, increase pedestrian bicycle originated transit trips,
foster safe station areas, enhance surrounding area connections to transit stations, provide mixed
use including housing and the opportunity to obtain goods and services near transit stations, offer
active public spaces, promote and enhance ridership, generate long-term revenues for
OM1vITRANS, and encourage revitalization and sound growth in the communities which
OMNITRANS serves. OMNITItANS's joint development opportunities consist of property
interests owned or controlled by OMNITRANS and approved by the OMNITRANS Board of
Directors.
The Goals of OMNITRANS's Joint Development Program are:
It is OMNITRANS' policy to encourage prospective developers to conduct market research and
apply their expertise to propose the best use or mix of uses on a particular property. At
appropriate locations, mixed-use development with multifamily residential, retail, office and
other components is preferred by OMIVITRANS because it creates both origins (e.g., residences,
hotels) and destinations (e.g., employment centers, shops, restaurants) for transit riders. Mixed-
use developments within walking distance of stations facilitate the most efficient use of
OMNITRANS' transit system carrying capacities.
Among OMNITRANS' goals and objectives for its joint development projects are:
• Promote Transit Oriented Development (TOD) by giving priority to Joint Development
proposals which contain the following smart growth principles on private properties adjacent to
OMNITRANS transit centers and future stations;
• Create a source of revenue for OM1vITRANS to operate and maintain the transit system by
expeditiously negotiating joint development agreements between OMNITRANS and public or
private development entities;
• To create developments with new residences, employment centers and recreational-cultural
opportunities available and affordable to the citizens of OMNITRANS' service area;
• To act as a catalyst for additional transit-oriented development within a half mile of Transit
Centers on land which is not owned by OMNITRANS.
• Assist the OMNITRANS jurisdictional areas to recapture a portion of their past past fmancial
contributions to the support of public transit by expanding the local property tax base and adding
value to available local revenue.
3.0 PURPOSE
The purpose of this policy and guidelines is:
EXHIBIT "D"
CDC/2009-55
• To disseminate information about OMNITRANS's Joint Development program to developers,
local jurisdictions, the local community and the general public;
• To identify the roles and responsibilities of the OMNTI'RANS Board of Directors, the Chief
Executive Officer/General Manager, local jurisdictions, developers and the community in the
joint development process;
• To establish procedures for the marketing of joint development sites and the selection of private
and public sector joint development participants through a competitive proposal process (except
in instances of joint development agreements entered into with adjacent property owners at
OMNITRANS's discretion);
• To define OMNTTRANS' community involvement process in the joint development program;
and
• To identify a procedure for addressing special joint development sites.
4.0 SCOPE OF POLICIES AND GUIDELINES
These policies and guidelines apply to joint development projects to which OMNITRANS is a
P~Y•
5.0 POLICIES OF LOCAL JURISDICTIONS AFFECTING JOINT DEVELOPMENT
OMIVITRANS coordinates closely with local jurisdictions, Redevelopment Agencies, SANBAG,
SCAG, SCRRA and the State of California, to implement its joint development program.
Additionally, OMNITRANS requires its selected developers to work with local jurisdictions
throughout the joint development process.
The policies which influence joint development activity in local jurisdictions are generally
contained in planning, land use and related documents, such as general plans, specific plans,
sector or station area plans, zoning ordinances and maps, adequate public facilities ordinances
and capital improvement programs. Interested parties may obtain these documents and plans by
contacting the jurisdiction involved. In addition, developers are required to seek the views of the
local jurisdiction prior to submitting a proposal to OMNITRANS.
6.0 MAJOR ROLES AND RESPONSIBILITIES IN THE JOINT DEVELOPMENT
PROGRAM
The OMTTITRANS joint development program is implemented by the combined efforts of the
Board, the Chief Executive Officer/General Manager and OMNITRANS staff, local jurisdictions,
developers and the community. Their major responsibilities are outlined below:
6.1 The OMIVITRANS Board of Directors
The OMIVITRANS Board of Directors establishes policies on behalf of OMI\TITRANS for joint
development, exercises specific approvals within the joint development process, and maintains
oversight of the joint development program. Approve developer selection and anon-binding term
EXHIBIT "D"
CDC/2009-55
sheet based on a staff recommendation, authorize staff to negotiate a lease or sales agreement (the
final contract) with the designated developer, and approve the terms of such final contract.
Additionally, the OMNITRANS Board conducts a public hearing, prior to final site plan approval
by the local jurisdiction, when such is required due to a change in transit access or parking to the
site.
6.2 Chief Executive Officer/General Manager
The Chief Executive Officer/General Manager or his or her designee shall be be responsible for
the overall management, administration and conduct of the joint development activities on behalf
of OMNITRANS.
6.3 Local Jurisdictions
Jurisdictions in the OMNITRANS service area include: the San Bernardino County, and the
Cities of Chino, Chino Hills, Colton, Fontana, Grand Terrance, Highland, Loma Linda,
Montclair, Ontario, Rancho Cucamonga, Redlands, Rialto, San Bernardino, Upland, and Yucaipa.
In addition, OMNITRANS will work with the State of California.
• OMNITRANS and local jurisdictions maintain an ongoing, informal dialogue regarding
planning and zoning changes at or around OMNITRANS sites, developers interest in such sites
and any jurisdictional initiatives for planning for TODs.
• Local jurisdictions participate with OMNITRANS and consultants in conducting the real estate
portfolio analysis which is used to help identify sites for possible joint development studies.
• OMNITRANS will work with Local jurisdictions in determining the suitability of specific sites
as joint development opportunities in a future solicitation. The local jurisdiction and the
OMIVITRANS Board member from that particular jurisdiction shall be asked to provide
OMNITRANS with a list of community organizations, including municipalities, community
groups, and civic associations that could be interested in the development of the property.
(Note: The list of interested organizations will be retained by OMNITRANS and provided to all
potential developers upon request.)
• Local jurisdictions, at their discretion, are encouraged to directly sponsor joint development
projects within their boundaries. Local jurisdictions are encouraged to mobilize their own
resources and those of private developers to jointly propose a joint development project on an
available site in coordination with OMNITRANS.
• OMNITRANS's solicitations encourage developers to contact local jurisdictions to obtain land
use and zoning information about a site prior to submitting joint development proposals to the
OMIVITRANS. In addition, developers are required to meet with community organizations that
have been identified by the local jurisdictions as those that would be interested in the
development of a site within their area.
• Local jurisdictions are asked to designate a person or office as the liaison to OMNITRANS for
joint development activities.
EXHIBIT "D"
CDC/2009-55
• Local jurisdictional representatives receive a briefing from OMNITRANS staff when proposals
are received.
• Local jurisdictional representatives are invited to participate in the oral presentation by the
developer to OMNITRANS's technical evaluation committee.
Developers are required to organize their presentations into two segments:
(1) land use proposals, zoning actions required, construction schedules; and
(2) financial offer to OMNITRANS. (Local jurisdictional representatives do not
participate in the discussion of the second segment.)
• Local jurisdictional representatives are invited to participate in the technical evaluation
committee discussion(s) of the proposal and to provide formal comments to the committee.
• If desired, the local jurisdictions participate with the developer in informational meetings with
the community organizations which have been identified by the affected jurisdiction.
• Local jurisdictions are invited to submit formal comments during the evaluation of development
proposals submitted in response to a formal solicitation or unsolicited proposal.
• After selection of a developer by the Board, local jurisdiction continue their involvement.
• Local staff are provided periodic updates and status reports by OMNITRANS staff.
• Developers' site plans are reviewed by OMNITRANS and local jurisdictional staffs.
• Local jurisdictions may sponsor community forums and invite OMNITRANS staff and
developer to participate.
• OMNITRANS monitors any required zoning and other actions by the local jurisdictions;
OMNITRANS staff participation is on an "as directed by Board members" basis.
• Local jurisdictions review and approve (or disapprove) the developers' site and project plans
through local policies, land use plans, zoning and development-related capital improvements.
• Following approval of the development by the local jurisdiction, but prior to final site plan
approval, when such is required due to a major change to transit facilities such as customer
parking or access to the site, a OMNITRANS public hearing is required, the affected local
jurisdiction will be invited to be a participant in that public hearing process.
6.4 Developers
Public and private development entities, land owners or their agents may participate in planning
as well as in implementation phases of the joint development program.
EXHIBIT "D"
CDC/2009-55
• Developers may propose introduction of a site for consideration through the coordination with
local jurisdictions and OMNITRANS.
• Developers or other interested parties may initiate unsolicited proposals for a OMNITR.ANS
property at any time. Such proposals are processed in accordance with the procedures provided in
the Unsolicited Proposal section.
• Potential developer(s) are required to meet with the local jurisdiction and interested community
organization(s) to share information about a pending proposal submission to OMNITRANS and
to seek their views prior to submitting the proposal to OMNITRANS. At these meetings, the
developer is expected to share as much detailed information as possible about his/her proposed
project. As part of the submission to OMIVITRANS, the developer will provide information about
the meetings held with the local jurisdiction and interested community organizations, including
an identification of issues raised at the meetings and how his/her proposal addresses them. The
developer will also include in the submission how the proposed project meets the goal of
achieving transit oriented development.
• Upon receipt of proposals, OMNITRANS staff will evaluate the proposals for the developer's
technical capacity, competency, satisfaction of the community meeting requirement and may
reject any that do not meet technical and business standards.
• Proposals will be processed as set forth in Sections 7.0 and 8.0.
• A selected developer will be required to participate in a OMNITRANS public hearing process
after approval of the developer's proposal by the local jurisdiction, but, prior to final site plan
approval, if the proposal necessitates a major change in transit facilities such as customer parking
or access to the site.
• A selected developer will, with OMNITRANS assistance, obtain all necessary plan approvals,
zoning and permits from the local jurisdiction.
• A selected developer will plan, construct and operate a joint development project in accordance
with pertinent joint development agreements and jurisdictional laws and requirements.
6.5 Community
• Potential developer(s) will be required to meet with the local jurisdiction and interested
community organization(s) to share information about a pending proposal submission to
OMNITRANS and to seek their views prior to submitting the proposal to ONINITRANS. At
these meetings, the developer is expected to share as much detailed information as possible about
his/her proposed project. As part of the submission to OMNITRANS, the developer will provide
information about the meetings held with the local jurisdiction and interested community
organizations, including an identification of issues raised at the meetings and how his/her
proposal addresses them. The developer will also include in the submission how the proposed
project meets the goal of achieving transit oriented development.
EXHIBIT "D"
CDC/2009-55
• Upon receipt of proposals, OMNITRANS staff will evaluate the proposals for the developer's
technical capacity, competency, satisfaction of the community meeting requirement and may
reject any that do not meet technical and business standards.
• Proposals will be processed in accordance with Sections 7.0 and 8.0.
• Following the Board's approval of the negotiated fmal contract, the selected developer will be
required to send a letter to the interested community organizations that he/she initially met with to
inform them as to how the project approved by OMNITRANS addresses their issues or concerns.
• The selected developer will then go through any land use, zoning, permitting or entitlement
processes required by the local jurisdiction, including any public hearings.
7.0 JOINT DEVELOPMENT PROCEDURES
This section describes the procedures followed for joint development. The stages are illustrative;
they are not mandatory; and may not be necessary for each joint development project. A separate
set of procedures applies to the processing of unsolicited proposals.
7.1 OMNITRANS will seek to identify sites it believes are suitable for development. The list
of potential sites will be submitted to local jurisdictions by the CEO/General Manager for
comment. As part of their review local jurisdictions can recommend special sites for inclusion in
listing for Board's consideration.
7.2 Board Approval of selection site and Authorize the CEO/General Manager to Initiate a
Joint Development Competitive Developer Selection Process.
7.3 Development and Issuance of Solicitation Document Planning in conjunction with
Procurement drafts a Solicitation Document to solicit joint development proposals from
developers on a competitive basis for site(s) approved by the Board. Concurrently,
OMNITRANS offices and the affected jurisdictions are consulted for comments. The local
jurisdiction advises OMNITRANS as to planning, urban design and other guidelines which will
apply to the proposed development site. OMNITRANS then issues a Solicitation Document
following its established joint development competitive selection procedures. Normally these
include:
• Advertisement of the availability of the solicitation in local and national newspapers;
• Apre-proposal conference, if needed, to respond to questions from prospective respondents;
• A proposal due date, generally 30 to 60 days from the date of issuance of the Solicitation
Document;
• Review and evaluation of proposals as set forth in Section 8.0.
EXHIBIT "D"
CDC/2009-55
8.0 JOINT DEVELOPMENT COMPETITIVE SELECTION PROCESS
8.1 Introduction
Joint Development employs a competitive selection process to which the provisions of the
OMNTTRANS Procurement Procedure Manual do not apply. Joint Development is the
development or disposition of property interests, at or adjacent to transit centers or future sbX
stations, owned and/or controlled by OMNITRANS, with the objective of developing transit
oriented public and private projects which enhance the ridership and revenue of OMNITRANS
and Local Jurisdictions.
8.2 Guidelines and Evaluation Criteria
In order to promote the objectives of the Joint Development Program and to provide fair and open
competition and full and fair consideration of all proposals for each joint development
opportunity, the guidelines set forth below will be followed for Joint Development solicitations.
• In order to ensure fair and open competition, OMNTTRANS will periodically publicize its joint
development opportunities in print media with wide circulation and, as necessary, through
solicitation documents and public events.
• OMNITRANS will entertain proposals for long-term lease, sale, combination lease/sale or other
arrangements. (OMNITRANS prefers transactions other than the sale of its property, but will
consider a sale, if it is determined to be in OMIVITRANS's best interest.)
• OMNITRANS encourages developers to include Disadvantaged Business Enterprises in their
joint development projects, and will assist developers in identifying such firms.
• In evaluating proposals, the criteria used by OM1vITRANS will include, consistent with FTA's
"Highest and Best Use" or "Highest and Best Transit Use" requirements, the following:
• Technical review;
• Degree to which the project reflects transit oriented development principles;
• Market/financial viability of the joint development project;
• Development team experience and prior performance;
• Innovation and creativity;
• Compatibility of development with local requirements and transit area;
• Economic impact;
• Enhanced transit centers and OMIVITRANS ridership;
• Financial benefits accruing to OMNITRANS and the local jurisdiction;
• Joint development project completion time-line.
EXHIBIT "D"
CDC/2009-55
8.3 Processin og f Proposals
Proposals will be processed as follows:
8.3.1 OMNITRANS will select the developer for each joint development opportunity
using commercially reasonable business practices and screening against the established criteria,
including FTA's "Highest and Best Use" or "Highest and Best Transit Use" requirements.
8.3.2 If, after receipt of proposals, material change occurs with respect to matters
published in the marketing document or the joint development site, notice of such change shall be
provided only to developers who submitted proposals and they shall be afforded an opportunity to
amend their proposals accordingly.
8.3.3 OMIVITRANS will review the proposals, and identify those proposals reasonably
susceptible of being selected for award screening against the selection criteria established in
Section 8.2 above and satisfaction of the requirements set out in the marketing or solicitation
document. Any proposals which do not meet published requirements and guidelines, and any
proposals not reasonably susceptible for selection, may be rejected by the Director of
Procurement.
8.3.4 OMNITRANS will conduct a preliminary analysis and evaluation of each
proposal.
8.3.5 OM1vITRANS may, but is not required to, meet with each developer who
submitted a proposal to receive a developer presentation and conduct specific discussions about
the proposal. The discussions will include identifying areas of the proposal that require
clarification, improvement, or do not comply with the marketing document. The proposers may
be requested to submit revised proposals based on the discussions. (Local jurisdictional
representatives will be invited to participate in evaluating a proposer's development concept and
provide questions/comments to OMNITRANS for discussion with the developer.)
8.3.6 Planning Staff, in coordination with Selection Review Committee will rate each
responsive proposal and rank the proposals based upon confidential criteria in accordance with
Section 8.2. The Director of Procurement in coordination with the CEO/General Manager and
County Counsel will then make a tentative developer selection and commence negotiations of a
nonbinding term sheet which outlines the major business terms of the project. If negotiations are
unsuccessful, OMNITRANS Staff may terminate negotiations and commence negotiations with
the second ranked developer, and those ranked thereafter, in order of ranking. Alternatively,
OMNTI'RANS Staff may enter into competitive negotiations with two or more ranked developers.
8.3.7 As soon the principal terms of a potential developer's project have been reduced
to a term sheet, the Administrative Oj~cer in coordination with the CEO/General Manager will
submit the recommended selected developer and the term sheet to the Board for approval.
8.3.8 A term sheet entered into with a developer is non-binding and does not constitute
a contract; there is therefore no binding agreement between OMIVITRANS and the selected
developer until the Board has approved the final negotiated contract.
EXHIBIT "D"
CDC/2009-55
8.3.9 After receipt of Board approval, the Administrative Oj~cer, in coordination with
the Procurement Director and Planning Staff, will negotiate a contract with the selected developer
that incorporates the terms of the term sheet. A summary of the completed contract, highlighting
significant new terms as well as material changes from the term sheet, will be presented to
County Counsel for final review and the Board for approval.
8.3.10 If an OMNITRANS public hearing is required due to a major change to transit
center, facilities or access to the site, the selected developer will be required to participate in the
public hearing process and fund the costs of the public hearing. The OMNITRANS public
hearing shall be held after approval of the developer's proposal by the local jurisdiction, but prior
to final site plan approval.
8.4 Unsolicited Proposals
Proposals received for development of a site owned by OMNITRANS which were not in
response to a specific marketing effort (Unsolicited Proposals) will be processed as follows:
8.4.1 Notice of receipt of the unsolicited proposal will be published in the print media
along with OMNITRANS procedure for processing unsolicited proposals, as provided for in this
Section.
8.4.2 OMNITRANS will begin processing the unsolicited proposal in accordance with
Section 8.3 to determine if the proposal merits selection for award of a contract.
8.4.3 If OMNITRANS receives additional proposals before developer selection is
completed on the initial unsolicited proposal, any new proposals, including the unsolicited
proposal, will be competed and processed in accordance with Section 8.2.
8.4.4 When a developer is selected for award of a contract for the site under either
8.4.2 or 8.4.3 above, no further proposals will be entertained for that site.
8.5 Adjacent Propertv Owner
OMNITRANS may negotiate a joint development agreement with an adjacent property owner
without competition and without advertising the availability of OMNITRANS site provided that
there is only one adjacent property owner or only one interested adjacent property owner, and
OMNITRANS has determined that only a specific adjacent property owner can take advantage of
the joint development opportunity due to site constraints or other limiting factors.
8.6 Confidentiality of Proposals
OMNITRANS will hold the financial contents of all proposals in confidence until a final
agreement is approved and executed; provided however, that OMNITRANS may review the
zoning and land use aspects of any proposal(s) with state and local zoning, land use planning,
transportation, and environmental officials, and at the sole discretion of the OMNITRANS Board
of Directors, such review may include conducting public hearings, town meetings, and similar
EXHIBIT "D"
CDC/2009-55
public forums. Upon approval by the Board of Directors, OMNITRANS staff may release project
scope information to the public.
8.7 Approval of Federal Transit Administration
The execution of any agreement negotiated between ONINITRANS and the selected developer is
contingent upon the approval of OMNITRANS Board of Directors and the Federal Transit
Administration of the U.S. Department of Transportation (FTA) under either the "Highest and
Best Use" or "Highest and Best Transit Use" concept, if applicable.
9.0 SPECIAL SITES
9.1 Definition
OMNITRANS' Joint Development may include one or two special sites that will become a focus
of staff efforts to move the properties from anon-marketable status to a viable joint Development
site. Special sites may be considered based on a staff recommendation, and based on a
recommendation from the local jurisdiction with the Board's concurrence. In making their
recommendations, the local jurisdictions may consider the potential of assembling the
OMNITRANS-owned property with other private or publicly-owned parcels. Additionally, the
local jurisdictions may consider the use of brokers or special consultants to evaluate the
development steps required at these special locations.
EXHIBIT "D"
CDC/2009-55
Exhibit "E"
"E" Street Corridor Task Force
San Bernardino Express Transit Oriented Development Policies and Guidelines
Outlined in this document are proposed Transit Oriented Development Policies recommended for
adoption. These policies, once adopted, coupled with strategies for implementation and ways to
incentivize this type of development, will enable the City of San Bernardino and Omnitrans to move
forward with the sbX BRT Project.
Generally, Station Area Plans should define an appropriate mix of uses. Typically, this should include a
minimum percentage of employment, retail, and residential uses for the overall planning area. These
percentages will vary depending on the individual characteristics of each Station Area, and would be
established by a development phasing and land use mix schedule.
1. Policy: Create an environment that meets a wide variety of needs within a compact space to
increase transit use, extend hours of activity, and reduce traffic.
Strategies:
a. Promote a mix of complementary and transit-supportive residential, employment, and
retail uses within Station Areas.
b. Utilize a vertical mix of uses within the Station Area to facilitate higher development
intensities.
c. Encourage the development of transit-supportive uses that provide a balance of service,
entertainment, employment, and housing options that will make the Station Area a safe,
inviting place to live, play and work.
d. Concentrate mixed uses in centrally located, high-visibility areas.
e. Facilitate the incorporation of public facilities, such as schools, libraries, government
service centers, recreation centers, and police substations in the Station Area.
2. Policy: Discourage auto-oriented uses.
Strategies:
a. Discourage auto-oriented uses such as auto repair and service shops, "big box" retail, and
drive-thru fast food within the Station Area.
b. Promote transit supportive design including smaller commercial footprints, reduced
parking areas, and smaller building setbacks.
c. Give priority to pedestrians and bicycles in building design and street layout.
3. Policy: Incorporate a variety of housing types within Station Area Plans. Incorporating housing
as a prominent use within Station Areas not only helps meet existing demand for homes, but also
provides abuilt-in population base that supports shops and restaurants, utilizes transit, and will
help establish the Station Area as a self sufficient neighborhood.
Strategies:
a. Incorporate a diversity of housing choices that includes a mixture of densities, styles, and
price ranges.
b. Vary housing mixtures according to the context of the greater Station Area.
EXHIBIT "E"
CDC/2009-55
c. Define the appropriate variety of housing types based on existing and desired
development patterns within the context of adjoining neighborhoods.
4. Policy: Ensure that development patterns are compatible with both the established character of
the E Street Corridor and the new framework provided in Station Area Plans.
Strategies:
a. Station Area Plans should use an assessment of surrounding development context, in
conjunction with the Station Area's identifying characteristics, to develop refined policies
for the area.
b. Transition areas should be identified in Station Area Plans to soften the impact of high-
intensity new uses on existing neighborhoods.
c. The City will discourage land use patterns in transit corridors and around transit stations
that may preclude future Transit Oriented Development.
5. Policy: Focus public infrastructure investments and public economic development
investments where development is most desirable to correct existing deficiencies, where the
investments will help ensure capacity for high-intensity TOD and where public investments will
guarantee additional public revenues for ongoing investments.
Strategies:
a. Ensure that adequate public facilities, including streets, drainage, pedestrian and bicycle
amenities, are in place in advance of or can be completed concurrent with development in
Station Areas.
b. Coordinate capital improvement plans and public investments by the City, County,
SANBAG and private developers to facilitate TOD development.
c. Ensure that developers and agencies comply with City requirements for road and
intersection improvements.
d. Land assembly opportunities.
6. Policy: Development intensity and density should be significantly higher in Station Areas to
provide a base for a variety of housing, employment, local services and amenities that promote
transit usage, encourage pedestrian activity and support a vibrant station area community.
Strategies:
a. Establish residential density targets in Station Area Plans to provide flexibility and
encourage a variety of development intensities and heights.
b. Enact non-residential density and height and lot size requirements in Station Area Plans
to ensure that development intensities in immediately surrounding the stations are transit
supportive and that early phases of development are not built at exceedingly low
densities.
c. Surface parking lots should be strongly discouraged adjacent to the transit station, except
as a temporary or transitional use.
d. Provide a transition between the Station Area and the surrounding area by stepping down
the height of structures, reducing lot coverage, increasing open space, increasing
architectural detailing, reducing permitted maximum densities, changes in use, or a
combination of these methods.
e. Encourage infill and redevelopment to achieve higher densities and a greater mix of uses.
EXHIBIT "E"
CDC/2009-55
f. Incorporate and Encourage Security by Design planning (lighting elements, possible
camera elements and defensible space elements.)
7. Policy: Establish a fully integrated system of functional street networks, pedestrian and bicycle
paths, bus stops, sidewalks and station locations that accommodate and encourage the use
ofnon-vehicular modes as preferred methods of travel within and between Station Areas.
Strategies:
a. An interconnected hierarchy of streets should be established to clearly define primary
pedestrian, bicycle and vehicular travel routes between Station Area uses and to uses
adjoining the Station Area.
b. Limit driveway access points along major thoroughfares and primary bicycle and
pedestrian paths.
c. Encourage shared parking and driveway access wherever possible.
d. Provide clear, direct linkages between transportation modes.
8. Policy: Provide adequate parks or public spaces to encourage community interaction, provide
recreation opportunities, and create space for civic activities.
Strategies:
a. Public spaces, such as parks, water features, and plazas, should be utilized as an
organizing feature for Station Area development and as a focal point for the Station Area
neighborhood.
b. Public spaces should be incorporated into the design of transit stations when feasible to
increase the functionality and visibility of the space.
c. Community amenities, such as fountains, sculpture and other pubic artwork, seating, and
other features that help create identifiable gathering spaces, should be incorporated as
part of the pubic open space.
d. Clear pedestrian and bicycle linkages should be provided within public spaces and along
primary corridors as urban greenways.
9. Policy: Each Station Area should be designed as a distinct neighborhood center that is
compatible with and well integrated into the existing neighborhood fabric. They should be
unique, vibrant places that invite pedestrian and bicycle activity and maximize transit ridership,
while acting as gateways into the surrounding communities.
Strategies:
a. Development in the Station Area should provide a destination for both transit and local
residents.
b. Elements of site layout and design should include local gathering places, shopping,
services and transit connections.
c. Concentrations of mass and height are desirable at key intersections, along transit
corridors or major thoroughfares, and at the Station Center.
d. Building access and windows within Station Areas should be oriented towards the
primary street frontage so that entrances are inviting and accessible to pedestrians from
the sidewalk.
EXHIBIT "E"
CDC/2009-5 5
e. Incorporate generous architectural detailing, including the articulation of building
facades, use of stone and other masonry materials, and incorporation of fenestration,
awnings, balconies, and other details to provide a high level of interest at the street level.
f. Investigate utilizing forms-based zoning or other new zone district categories as tools for
implementing Overlay Zone Districts.
10. Policy: Allow lower parking ratios within Station Areas as well as alternative parking solutions
to achieve more intense development patterns.
Strategies:
a. Discourage surface parking within the Station Area, except as an interim use to "land
bank" property should immediate development of the parcel not be feasible.
b. Parking management strategies should be developed to ensure efficient use of limited
Station Area parking facilities.
c. Surface parking should be located to the side or rear of buildings wherever possible, and
broken into smaller areas through the use of landscaping and non-conflicting secondary
bike and pedestrian paths.
d. Utilize shared parking, trip reduction strategies, and transportation management to reduce
off-street parking requirements between 25-50% where it is plausible that residents,
employees, customers, or visitors will utilize alternative modes.
e. Explore the use of parking districts or other financing tools to fund strategically located
parking structures.
f. Where major parking areas are planned, access should be from collector and arterial
roads around the station areas, without impacting existing communities or the pedestrian
environment closet to the station. Primary bike and pedestrian paths should lead from
these parking areas to primary destinations such as the station, major office areas, high-
density residential, etc.
EXHIBIT "E"
CDC/2009-55
Exhibit "F"
Insurance Requirements
5-1.14 INSURANCE REQUIREMENTS -- Contractor shall procure and maintain
for the duration of the contract insurance against claims for injuries to persons or damages to
property which may arise from or in connection with the performance of the work hereunder by
the Contractor, his agents, representatives, employees or subcontractors.
The Contractor shall indemnify and save harmless the City of San Bernardino, the County
of San Bernardino, the State of California, and/or any incorporated city from al[ claims or suits for
damages arising from the prosecution of the contract work, as more fully described in Subsection
5-1.06, "Contractor's Liability", of these Special Provisions..
The Contractor agrees to protect, defend and indemnify the City of San Bernardino against
loss, damage or expense by reason of any suit claims, demands, judgments and causes of action
caused by the Contractor, its employees, agents or any subcontractor, or by any third party arising
out of or in consequence of the performance of all or any operations covered by the Certificate of
Insurance. The Contractor, at its option, may include such coverage under Public Liability
coverage.
5-1.15 LIBILITY INSURANCE -- The Contractor's attention is directed to Section
7-3, "Liability Insurance", of the Standard Specifications, providing that the Contractor shall
furnish the City with a policy or certificate of liability insurance prior to execution of the contract.
Afl of the Insurance Policies shall name the City of San Bernardino as an additional insured.
The endorsement shall be provided by the broker or agent of the insurance company and shall be
notarized to that effect. ACCORD Forms are not acceptable, nor forms signed by the broker,
unless they have Power of Attorney to bind the insurance provider. (See attached sample forms.)
Contractor shall maintain minimum limits of insurance with the CITY as certificate holder
of no less than (Bold figures indicate increased coverage for this project involving railroad right
of way encroachment. ):
1. General Liability: $5,000,000.00 per occurrence and $10,000,600.00
aggregate for bodily injurv, personal injury and
property damage. Commercial General Liability
Insurance or other form with a general aggregate
limit shall apply separately to this project/location;
2. Products!Completed Operations: $5,000,000.00 per occurrence and
$10,000,000.00 aggregate;
3. Automobile Liabilih•: $1,000,000.00 per accident for bodily injury
and property damage;
4. Employer's Liability: $5,000,000.00 per accident for bodily injury
or illness;
~. Course of Construction: Completed value of the project.
5-1.16 t~VORKERS' COMPENSATION fNSURANCE -- The Contractor's attention
is directed to Section 7-4, "Workers' Compensation Insurance", of Standard Specifications,
providing that the Contractor shall file a signed Certificate of Workers' Compensation Insurance
before execution of the contract.
EXHIBIT "F"
CDC/2009-55
Exhibit "G"
Initial Study/Mitigated Negative Declaraton and Supporting Technical Studies and Reports
As on file with the City of San Bernardino, City Clerk's Office
EXHIBIT "G"
CDC/2009-55
Exhibit "H"
Mitigation and Monitoring Reporting Program
As on file with the City of San Bernardino, City Clerk's Office
EXHIBIT "H"