HomeMy WebLinkAbout2011-261
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RESOLUTION NO. 2011-261
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A
MEMORANDUM OF UNDERSTANDING BETWEEN OMNITRANS AND THE
CITY OF SAN BERNARDINO AND ACCEPT $336,000 OF FUNDING TO BE
APPLIED TO THE NUNEZ PARKlRUBEN CAMPOS CENTER RENOVATION
CAPITAL IMPROVEMENT PROJECT (PR04-38).
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
Section 1. That the City Manager is hereby authorized to execute on behalf of said City
the Memorandum of Understanding with Omnitrans a copy of which is attached hereto,
marked as Attachment" I" and incorporated herein by reference as fully as though set forth at
length; and
Section 2. That the authorization to execute the above referenced Memorandum of
Understanding is rescinded if the parties to the agreement fail to execute it within ninety (90)
days of the passage of this resolution.
Section 3. That the term of the Memorandum of Understanding with Omnitrans shall be
from the date of execution by both parties until project completion, including submission of
all required reports, unless earlier terminated herein by either party;
Section 4. That the Director of Finance is hereby authorized to amend the Fiscal Year
2011-2012 CIP Park Construction Fund and incorporate the agreement amount set forth in the
Memorandum of Understanding between the City of San Bernardino and Omnitrans for CIP
project PR04-38.
III
III
III
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RESOLUTION NO.
2011-261
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A
MEMORANDUM OF UNDERSTANDING BETWEEN OMNITRANS AND THE
CITY OF SAN BERNARDINO AND ACCEPT $336,000 OF FUNDING TO BE
APPLIED TO THE NUNEZ PARKJRUBEN CAMPOS CENTER RENOVATION
CAPITAL IMPROVEMENT PROJECT (PR04-38).
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a j oint regular
meeting,
9 thereof, held on the 6th
day of SeDtember
,201 L by the following vote to
wit:
COUNCIL MEMBERS AYES
MARQUEZ X
JENKINS X
BRINKER X
X
SHORETT
KELLEY X
JOHNSON X
MCCAMMACK
NAYS
ABSTAIN ABSENT
X
~~.6 Ua~_
Rache G. Clark, City Clerk-
The foregoing resolution is hereby approved this E'- day of SeDtember ,20] 1.
-=eJ'" .
~is, Mayor
City of San Bernardino
Approved as to Form:
~AovV<' '}. f~
FF'. Penman, City Attorney
2011-261
ATTACHMENT 1
RUBEN CAMPOS RARK PROJECT
FUNDING, DESIGN, CONSTRUCTION, MAINTENANCE AND OPERATING
AGREEMENT
BETWEEN
THE CITY OF SAN BERNARDINO
300 NORTH "0" STREET, 6th FLOOR
SAN BERNARDINO, CALIFORNIA 92418
AND
OMNITRANS
1700 WEST FIFTH STREET
SAN BERNARDINO, CALIFORNIA 92411-2499
This AGREEMENT, entered into on is between the CITY OF SAN
BERNARDINO a body politic and a municipal corporation of the State of Cali fomi a, referred to
herein as CITY
and
OMNITRANS, a joint powers public transit agency, referred to herein as OMNITRANS.
RECITALS
1. OMNITRANS and CITY mutually desire to cooperate and partIcIpate in the
development and construction improvements to Ruben Campos Park, referred to
herein as "PROJECT" and located in the City of SAN BERNARDINO at 1717 West
Fifth Street. (Exhibit - A)
2. This AGREEMENT supersedes any prior oral or written agreement in relation to this
PROJECT.
3. OMNITRANS and CITY desire to specify herein the terms and conditions under
which the PROJECT shall be funded, designed, constructed, maintained, and
operated.
Page 1 of15
2011-261
ATTACHMENT I
4. CITY will select an experienced architectural and/or engineering firm(s) or team of
firms herein referred to as CONSULTANT(s), to aid the CITY and OMNITRANS in
the planning and, if approved, the design process of the project.
5. CITY will award a construction contract, upon joint approval of the design, to an
experienced contractor or group of contractors herein referred to as CONTRACTOR
once the design process has been completed and the respective agencies elect to go
forward with the project at that time.
Payment Upon Termination
All eligible and approved costs incurred during each phase of the project, including
consulting, contracting, printing, copying, advertising, noticing and project administration as
required to complete said phase shall be reimbursed through the State funding identified. In
addition, should some unforeseen circumstance beyond the control of the parties occur, such
as a loss in funding for the project at the State level during any phase of the project, then
either party may give written notice of its intent to terminate the project and all eligible costs
to date will be reimbursed through the State funds identified for the proj ect. In the event of
such termination OMNITRANS shall authorize payment to the CONSULTANT and CITY
for project administration as full payment for all services performed which have been
previously approved and actually incurred by CONSULTANT/CITY at the time of
termination, which amount shall not exceed the reasonable value of the work completed
according to the schedule established pursuant to Section I.
In ascertaining the services actually rendered hereunder up to the date of termination of this
Agreement, consideration shall be given to both completed work and work in process of
completion.
SECTION I
OMNITRANS AGREES:
1. To provide an amount not to exceed $336,000. Funding sources shall be limited to a
$336,000 from California Department of Transportation from Proposition IB and the
Highway Safety, Traffic Reduction, Air Quality and Port Security Bond Act of 2006
(referred to collectively herein as "State Funds")
2. To fully fund the work performed by the CONSULTANT during the architectural and
engineering phases of the PROJECT, including the preparation of construction
documents utilizing State aid.
3. To attend pertinent meetings set forth by the CONSULTANT and/or CITY regarding
the development process of PROJECT.
Page 2 of 15
2011-261
ATTACHMENT I
4. OMNITRANS shall defend with counsel reasonably approved by CITY, indemnify
and hold CITY, its officials, officers, employees and agents free and harmless from
any and all liability from loss, damage, or injury to property or persons, including
wrongful death, in any manner arising out of or incident to any breach of contract,
negligent acts, omissions or willful misconduct of OMNITRANS arising out of or in
connection with OMNITRANS' performance of this Agreement and/or the
PROJECT.
5. Facilitate the reimbursement of the eligible planning and conceptual engineering costs
utilizing the California Department of Transportation (DOT) funds approved for this
PROJECT.
SECTION II
CITY AGREES:
1. To cooperate and partIcIpate fully in the selection of an experienced
architectural/engineering firm or team of firms herein collectively referred to as
CONSULTANT, which will aid the CITY and OMNITRANS in the planning and
design process of the PROJECT. The CITY shall select the CONSULTANT. Once
the CONSULTANT is selected, CITY shall be responsible to negotiate and
administer the contract with the CONSULTANT. The contract with the
CONSULTANT shall provide for the CONSULTANT's responsibility for organizing
and coordinating meetings with the CITY and OMNITRANS, for developing design
features, necessary elements, and amenities for the PROJECT and for creating
preliminary and final construction budget estimates for the PROJECT.
2. To pay up-front costs of the work performed by the CONSULTANT during the
planning and conceptual engineering phase of the PROJECT, including the
preparation of construction documents until such time as reimbursement requests are
expediently processed.
3. To provide the land for the development and construction of PROJECT, keep the land
free and clear from any encumbrances, to perform all necessary investigations and
complete and obtain all necessary permits for the use of the identified land for this
PROJECT, and to apply the value of the land as the local match by OMNITRANS for
its portion of state funding. CITY warrants that it has available to it all funds and
other assets necessary to comply fully with the terms of this Agreement.
4. To attend pertinent meetings set forth by the CONSULTANT and/or OMNITRANS
regarding the development of PROJECT.
5. To provide $880,000 in local funds for the conceptual design, planning, final design
and construction of PROJECT.
Page 3 of 15
2011-261
ATTACHMENT 1
6. To provide all applicable permits required by CITY, the State of California and other
entities at no cost to OMNITRANS as a part of the CITY's local match.
7. To claim full ownership of PROJECT.
8. To maintain and upkeep all portions of the completed PROJECT.
9. To construct, maintain, and operate future traffic control and street safety lighting, to
include the aforementioned be installed on adjacent streets affecting traffic standards
due to PROJECT at CITY's sole expense.
10. To provide conceptual and final design administration, construction management and
the related administrative support required during the bid and construction phase of
the PROJECT.
11. To provide bid guarantee, contract performance, payment bonds, and any other
bonding requirements to the extent deemed adequate by Federal, State, and Local
jurisdictions. For the purpose of this Agreement, City agrees to require that
CONTRACTORS provide performance and payment bonds at a level of 100% of the
contract price.
12. Comply with all provlSlons of the receipt of State Funds, including DOT's
procurement and construction guidelines related to PROJECT. In addition to and
notwithstanding any other of CITY's obligations under this Agreement, CITY agrees
that it will be responsible for any damages and expenses, including fines imposed by
the DOT and any attorneys fees which OMNITRANS suffers by virtue of the CITY's
breach of any term of this Agreement.
13. To submit, on a quarterly basis, reports that document the status of PROJECT'S
implementation progress, including task completion status, budget status, and
adherence to PROJECT milestones. (Exhibits - B, C and D) Omnitrans shall retain
10% of the State Funds authorized by this Agreement until project completion. The
first report shall be submitted to OMNITRANS within three (3) months of the
execution date of this Agreement.
a. To submit requests for reimbursement or disbursement of State Funds In
conformity with the following procedures:
1). For each reimbursement or disbursement requested, the City shall provide
a written invoice to OMNITRANS specifying the amount requested to be
disbursed, the purpose for which the disbursement is required and such
additional supporting documentation and background information as
OMNITRANS may reasonably require.
Page 4 of 15
2011-261
ATTACHMENT I
2). Each invoice requesting a distribution shall be accompanied by a written
certification of the CITY's City Administrator or his designee that such
disbursement as requested by the CITY will not constitute any violation of the
terms of the grant, or of any applicable federal, state or local law or regulation
and that the CITY will use the funds disbursed for the purpose indicated in its
ITIVOlce.
3). Within five (5) working days of the receipt of an invoice and
accompanying certification, OMNITRANS shall notify the CITY as to what,
if any, additional supporting documentation and background information will
be required. CITY shall make all required documentation available to
OMNITRANS within five (5) working days, unless stipulated otherwise in
writing by OMNITRANS.
4). The first week of the following month after invoice submittal to
OMNITRANS pursuant to Section II.l3.A.(l) above, OMNITRANS shall: (i)
disburse (including through electronic transfer of funds, if so requested and if
CITY provides the necessary information) so much of the requested funds
which it reasonably believes it can disburse without violating the terms of
either the grant or of applicable federal, state, or local law or regulation; and
(ii) notify the CITY as to why it reasonably believes that it is unable to
disburse some or all of the requested funds without violating the terms of
either the grant or of applicable federal, state, or local law or regulation
pursuant to Section 11.13 .A.( 6) herein.
5). To the extent that the DOT advises Omnitrans that any disbursement of
grant funds would constitute a violation of the terms of either the grant or of
applicable federal, state or local law or regulation, Omnitrans shall have no
obligation to disburse such funds. If Omnitrans has any question as to
whether any disbursement will be in violation of any provision of either the
grant or of applicable federal, state or local law or regulation, notwithstanding
the City's certification, it shall be entitled to receive at the City's expense, a
legal opinion from competent counsel of its choice to resolve any such
question.
6). Omnitrans shall have no liability to the City for any refusal to disburse
funds so long as Omnitrans has a good faith and reasonable belief that such
disbursement would constitute a violation of the terms of the grant or of
applicable federal, state or local law or regulation.
Page 5 of 15
2011-261
ATTACHMENT 1
14. Once the parties agree upon a CONSULTANT, CITY shall perform the work
required to complete the PROJECT under this Agreement. CITY shall be responsible
for all duties relative to the construction phase of this PROJECT, including
complying with all bidding and contract administration requirements relative to
construction of a public works project, with all due diligence and in a skillful and
competent manner. CITY shall be responsible to OMNITRANS for any errors or
omissions in its execution of this Agreement. CITY represents and warrants to
OMNITRANS that it and/or its CONTRACTORS has or will have all licenses,
permits, qualifications and approvals of whatever nature that are legally required to
perform the work required to complete the PROJECT. CITY further represents and
warrants that it and/or its contractors shall keep in effect all such licenses, permits,
and other approvals during the term of this Agreement.
15. CITY shall keep and maintain all books, papers, records, accounting records
including but not limited to all direct and indirect costs allocated to the PROJECT,
files, accounts, reports, cost proposals with backup data, and all other material
relating to the PROJECT. CITY shall, upon request, make all such materials
available to OMNITRANS or its designee at any reasonable time during the term of
the Agreement and for three (3) years from the date of final payment to CITY, for
auditing, inspection, and copying. Any contract, entered into as a result of this
Agreement, shall contain all of the provisions of this paragraph.
16. CITY shall defend with counsel reasonably approved by OMNITRANS, indemnifY
and hold OMNITRANS, its officials, officers, employees and agents free and
harmless from any and all liability from loss, damage, or injury to property or
persons, including wrongful death, in any manner arising out of or incident to any
breach of contract, negligent acts, omissions or willful misconduct of CITY arising
out of or in connection with CITY's performance of this Agreement and/or the
PROJECT.
17. CITY shall require and ensure that its subcontractors will obtain and maintain
insurance of the types and in the amounts described below and satisfactory to
OMNITRANS.
A. Commercial General Liability Insurance. CITY's CONSULTANT shall maintain
occurrence version commercial general liability insurance or equivalent form with
a combined single limit of not less than $1,000,000 per occurrence. If such
insurance contains a general aggregate limit, it shall apply separately to this
Agreement or be no less than two times the occurrence limit. Such insurance
shall:
(1) Name CITY, OMNITRANS and their officials, officers, employees,
agents, and consultants, as insureds with respect to performance of this
Agreement and/or the PROJECT. Such insured status shall contain no
special limitations on the scope of its protection to the above-listed
insureds.
Page 6 of 15
2011-261
ATTACHMENT I
(2) Together, with the City of SAN BERNARDINO, be primary with
respect to any insurance or self-insurance programs covering
OMNITRANS, its officials, officers, employees, agents, and
consultants.
(3) Contain standard separation of insured's provisions.
B. Business Automobile Liabilitv Insurance. CITY's CONSULTANTS shall
maintain business automobile liability insurance or equivalent form with a
combined single limit of not less than $1,000,000 per occurrence. Such insurance
shall include coverage for owned, hired and non-owned automobiles.
C. Public and Propertv Damage Liability Insurance. CITY's CONTRACTORS shall
maintain public and property damage liability insurance policy of not less than
$1,000,000 combined single limits liability coverage for bodily injury and/or
property damage.
D. Workers' Compensation Insurance. CITY's CONSULTANT shall maintain
workers' compensation insurance with statutory limits and employers' liability
insurance with limits of not less than $1,000,000 per accident.
E. Errors and Omissions. CITY's CONSULTANT shall maintain errors and
omissions insurance with a $1,000,000 combined single limit bodily and property
damage liability per occurrence and $3,000,000 aggregate or,
F. Professional Liability. $1,000,000 per occurrence.
G. Certificates/Insurer Rating/Cancellation Notice.
(I) CITY shall require, prior to commencement of the Project, that
CONSULTANT furnish properly executed certificates of insurance,
and certified copies of endorsements, and policies, which shall clearly
evidence all insurance required in this Section. CITY shall require that
the contract with CITY's consultant include thirty (30) days prior
written notification to both CITY and OMNITRANS of pending
insurance cancellation, expiration, or material reduction.
(2) CITY's CONSULTANT shall maintain such insurance from the time
the Agreement commences until the PROJECT is completed, except as
may be otherwise required by this Section.
(3) CITY's CONSULTANT shall place insurance with insurers having an
A.M. Best Company rating of no less than A:VIII and licensed to do
business in California.
Page 7 of 15
2011-261
ATTACHMENT I
(4) CITY's CONSULTANT shall replace certificates, policies and
endorsements for any insurance expiring prior to completion of the
PROJECT.
18. In the event that the parties agree to go forward with Phase V of the PROJECT, CITY
agrees to contribute a minimum of 50 % of the costs for this Phase that are not paid for
by the funds described in Section 1.1.
19. The CITY shall agree to comply with 49 U.S.C. S 5323(j) and FT A regulations, "Buy
America Requirements," 49 C.F.R. Part 661, and any amendments thereto.
20. The CITY shall comply with all conditions and obligations of the California Department
of Transportation grant for the PROJECT, to the extent it is within CITY's authority to
do so.
SECTION III
IT IS MUTUALLY AGREED:
I. The term of this Agreement shall be from the date of execution by both parties until
PROJECT completion, including submission of all required reports, unless earlier
terminated herein by either party.
2. The cost of any and all maintenance referred to throughout this Agreement shall include
all direct and indirect costs (functional and administrative overhead assessment)
attributable to such work, applied in accordance with the State of California's standard
accounting procedures.
3. Any termination of operation or maintenance to the PROJECT will reqUIre DOT
approval prior to termination. The initiating party, for whom which decided to
terminate service, will notify both DOT and second party in writing, the reasons thereof
and will be responsible for any penalties imposed by DOT.
a. Upon termination of operation or maintenance to the PROJECT, both parties shall
identify a mutually preferred site for transit operations, if applicable. After the
useful life, if relocation is necessary, both parties will notify DOT and request
disposition instructions and identify a mutually preferred location.
Page 8 of 15
2011-261
ATTACHMENT 1
4. CITY acknowledges that failure to comply with any material provIsIOns of this
Agreement (such failure to comply is hereinafter called a "Default"), including failure
to adhere to specified PROJECT milestones of Exhibit "B" Milestones and Reporting,
may, in the sole but reasonable discretion of OMNITRANS, result in revocation of
funding for the PROJECT by OMNITRANS. In the event OMNITRANS's Director of
Planning determines that CITY has committed a Default by failing to comply with a
material provision of this Agreement, OMNITRANS will notify CITY in writing of the
Default. CITY shall have thirty (30) days (unless a shorter time is reasonably
determined by OMNITRANS's Director of Planning to be required under the
circumstances) from the date of OMNITRANS' letter of notification of Default to cure
the Default. In the event CITY fails to cure the Default or dispute the Default under the
provisions of Section III, item II within the time allowed or if the CITY's dispute is not
resolved in the CITY's favor, OMNITRANS' Director of Planning may revoke the
funding for the PROJECT and terminate this Agreement by written notice to the CITY.
If the Default is a failure to adhere to one or more specified milestones of Exhibit "B",
Milestones and Reports, the CITY may request an amendment to this Agreement which
specifies a revised schedule for attaining the milestone(s). The request for amendment
to the Agreement must provide complete justification for the proposed schedule
revision. If such an amendment is approved by the OMNITRANS Board of Directors,
such amendment shall cure the Default. Any state funds which may become
available as a result of revocation of such funding and termination of this
Agreement due to CITY's failure to timely cure a Default, may not be utilized by
the CITY in any manner, but will be returned to or remain with OMNITRANS to
be used in its sole discretion.
5. No alteration or variation of the terms of this Agreement shall be valid unless made in
writing and signed by the parties hereto, and no oral understanding or agreement not
incorporated herein shall be binding on any of the parties hereto.
6. Upon completion of all work under this Agreement, ownership and title to materials,
equipment, structures, and appurtenances, which are installed within CITY's property,
shall automatically be vested in the CITY.
7. Nothing in the provisions of this Agreement is intended to create duties or obligations to
or rights in third parties not party to this Agreement or affect the legal liability of any
party to the Agreement by imposing any standard of care with respect to the
maintenance of facilities different from the standard of care imposed by law.
Page 9 of 15
ATTACHMENT 1
2011-261
8. All notices and correspondence are to be sent to the following addresses:
OMNITRANS
Artn: Milo Victoria
CEO/General Manager
1700 W. Fifth Street
San Bernardino, CA 92411-2499
Page 10 of 15
City of SAN BERNARDINO
Artn: Charles E. McNeeley
City Manager
300 N. "D" Street, 6th Floor
San Bernardino, CA 92418
2011-261
ATTACHMENT 1
9. This Contract shall be binding on the successors and assigns of the parties, but may
not be assigned by CITY without approval from OMNITRANS.
10. Prohibited Interests.
CITY OF SAN BERNARDINO:
A. Solicitation. CITY maintains and warrants that it has not employed nor retained
any company or person, other than a bona fide employee working solely for
CITY, to solicit or secure this Agreement. Further, CITY warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide
employee working solely for CITY, any fee, commission, percentage, brokerage
fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty,
OMNITRANS shall have the right to rescind this Agreement without liability.
B. Conflict of Interest. For the term of this Contract, no member, officer or
employee of CITY, during the term of his or her service with CITY, shall have
any direct interest in this Agreement, or obtain any present or anticipated material
benefit arising there from. CITY covenants that at present time it has no interest,
and will not have any interest, direct or indirect, which would conflict in any
manner with the performance of the Agreement or the PROJECT required
hereunder.
OMNITRANS:
A. Solicitation. OMNITRANS maintains and warrants that it has not employed nor
retained any company or person, other than a bona fide employee working solely
for OMNITRANS, to solicit or secure this Agreement. Further, OMNITRANS
warrants that it has not paid nor has it agreed to pay any company or person,
other than a bona fide employee working solely for OMNITRANS, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent
upon or resulting from the award or making of this Agreement. For breach or
violation of this warranty, CITY shall have the right to rescind this Agreement
without liability.
B. Conflict of Interest. For the term of this Contract, no member, officer or
employee of OMNITRANS, during the term of his or her service with
OMNITRANS, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising there from. OMNITRANS
covenants that at present it has no interest, and will not have any interest, direct
or indirect, which would conflict in any manner with the performance of the
Agreement or the PROJECT required hereunder.
Page 11 ofl5
2011-261
ATTACHMENT I
II. If any legal action is instituted to enforce or declare any party's rights hereunder, each
party, including the prevailing party, must bear its own costs and attorney's fees.
This paragraph shall not apply to those costs and attorney's fees directly arising from
any third party legal action against a party hereto and payable under Section I,
Paragraph 5 or Section II, Paragraph 16, Indemnification.
12. In the event any dispute arises between the parties hereto under or in connection with
this Agreement, the dispute shall be decided by the Director of Planning of
OMNITRANS or his duly authorized representative within thirty (30) calendar days
after notice thereof in writing which notice shall include a detailed statement of the
grounds of the dispute and why the dispute should be resolved in OMNITRANS'
favor. If CITY does not agree with the decision, then CITY shall have thirty (30)
calendar days after receipt of the decision in which to file a written appeal thereto
with the CEO/General Manager ofOMNITRANS. If the CEO/General Manager fails
to resolve the dispute in a manner acceptable to CITY, then such appeal shall be
decided by a court of competent jurisdiction. During resolution of the dispute, CITY
shall proceed with the performance of this Agreement to the extent practicable.
13. Whenever review, consent, or approval of either party must be given or where it can be
withheld, that party must not unreasonably review or unreasonably withhold such
consent or approval.
This Agreement constitutes the entire understanding of the parties with respect to the subject
matter hereof, and there are no other representations, promises, warranties, covenants or
undertakings with respect thereto.
In witness thereof, the parties have caused this Agreement to be executed by their respective
officers.
OMNITRANS
CITY OF SAN BERNARDINO
By:
By
Milo Victoria
CEO/General Manager
Charles E. McNeely
City Manager
Date:
Date:
APPROVED AS TO FORM:
APPROVED AS TO FORM:
By:
By:
Carol Greene
Omnitrans Legal Counsel
City Attorney
Page 12 of 15
2011-261
ATIACHMENTI
Exhibit - A. Conceptual Plans for the Ruben Compos Park Project
1717 West Fifth Street, San Bernardino, California 92411
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Page 13 of 15
2011-261
A IT ACHMENT 1
Exhibit - B. Project Milestones & Schedule
Completion Date
Preparation of conceptual site plan and related preliminary engineering 9/19/11
studies (hydrology, traffic, etc).
Review period by OMNITRANS/CITY (simultaneous review by both 9/19/11-9/20/11
agencies each review to take no more than two (2) weeks, after that,
deemed approved by that agency).
Agencies to select "preferred design and site" collectively. 9/20/11
Final design consultant to be selected jointly. N/A
Final design completed. 9/20/11
Review period by OMNITRANS/CITY (simultaneous review by both N/A
agencies each review to take no more than two (2) weeks, after that,
deemed approved by that agency).
Final design complete. N/A
A ward Construction Contract 10/17/11
Start Construction. 11/1/11
Complete Construction 3/3011 I
To be developed by the City along with the final construction plan, budget and construction
milestones.
Page 14 of 15
2011-261
ATTACHMENT I
Exhibit - C. Estimated Project Construction Budget
To be developed during Phase One.
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RUBEN CAMPOS RARK PROJECT
FUNDING, DESIGN, CONSTRUCTION, MAINTENANCE AND OPERATING
AGREEMENT
BETWEEN
THE CITY OF SAN BERNARDINO
300 NORTH "D" STREET 6th FLOOR
,
SAN BERNARDINO, CALIFORNIA 92418
AND
OMNITRANS
1700 WEST FIFTH STREET
SAN BERNARDINO, CALIFORNIA 92411-2499
This AGREEMENT, entered into on Sept 6, 2011 is between the CITY OF SAN
BERNARDINO a body politic and a municipal corporation of the State of California, referred to
herein as CITY
and
OMNITRANS, ajoint powers public transit agency, referred to herein as OMNITRANS.
RECITALS
1. OMNITRANS and CITY mutually desire to cooperate and partIcIpate in the
development and construction improvements to Ruben Campos Park, referred to
herein as "PROJECT" and located in the City of SAN BERNARDINO at 1717 West
Fifth Street. (Exhibit - A)
2. This AGREEMENT supersedes any prior oral or written agreement in relation to this
PROJECT.
3. OMNITRANS and CITY desire to specify herein the terms and conditions under
which the PROJECT shall be funded, designed, constructed, maintained, and
operated.
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4. CITY will select an experienced architectural and/or engineering firm(s) or team of
firms herein referred to as CONSULTANT(s), to aid the CITY and OMNITRANS in
the planning and, if approved, the design process of the project.
5. CITY will award a construction contract, upon joint approval of the design, to an
experienced contractor or group of contractors herein referred to as CONTRACTOR
once the design process has been completed and the respective agencies elect to go
forward with the project at that time.
Payment Upon Termination
All eligible and approved costs incurred during each phase of the project, including
consulting, contracting, printing, copying, advertising, noticing and project administration as
required to complete said phase shall be reimbursed through the State funding identified. In
addition, should some unforeseen circumstance beyond the control of the parties occur, such
as a loss in funding for the project at the State level during any phase of the project, then
either party may give written notice of its intent to terminate the project and all eligible costs
to date will be reimbursed through the State funds identified for the project. In the event of
such termination OMNITRANS shall authorize payment to the CONSULTANT and CITY
for project administration as full payment for all services performed which have been
previously approved and actually incurred by CONSULTANT/CITY at the time of
termination, which amount shall not exceed the reasonable value of the work completed
according to the schedule established pursuant to Section I.
In ascertaining the services actually rendered hereunder up to the date of termination of this
Agreement, consideration shall be given to both completed work and work in process of
completion.
SECTION I
OMNITRANS AGREES:
1. To provide an amount not to exceed $336,000. Funding sources shall be limited to a
$336,000 from California Department of Transportation from Proposition IB and the
Highway Safety, Traffic Reduction, Air Quality and Port Security Bond Act of 2006
(referred to collectively herein as "State Funds")
2. To fully fund the work performed by the CONSULTANT during the architectural and
engineering phases of the PROJECT, including the preparation of construction
documents utilizing State aid.
3. To attend pertinent meetings set forth by the CONSULTANT and/or CITY regarding
the development process of PROJECT.
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4. OMNITRANS shall defend with counsel reasonably approved by CITY, indemnify
and hold CITY, its officials, officers, employees and agents free and harmless from
any and all liability from loss, damage, or injury to property or persons, including
wrongful death, in any manner arising out of or incident to any breach of contract,
negligent acts, omissions or willful misconduct of OMNITRANS arising out of or in
connection with OMNITRANS' performance of this Agreement and/or the
PROJECT.
5. Facilitate the reimbursement of the eligible planning and conceptual engineering costs
utilizing the California Department of Transportation (DOT) funds approved for this
PROJECT.
SECTION II
CITY AGREES:
1. To cooperate and partIcIpate fully in the selection of an experienced
architectural/engineering firm or team of firms herein collectively referred to as
CONSUL T ANT, which will aid the CITY and OMNITRANS in the planning and
design process of the PROJECT. The CITY shall select the CONSULTANT. Once
the CONSUL T ANT is selected, CITY shall be responsible to negotiate and
administer the contract with the CONSULTANT. The contract with the
CONSULTANT shall provide for the CONSULTANT's responsibility for organizing
and coordinating meetings with the CITY and OMNITRANS, for developing design
features, necessary elements, and amenities for the PROJECT and for creating
preliminary and final construction budget estimates for the PROJECT.
2. To pay up-front costs of the work performed by the CONSULTANT during the
planning and conceptual engineering phase of the PROJECT, including the
preparation of construction documents until such time as reimbursement requests are
expediently processed.
3. To provide the land for the development and construction of PROJECT, keep the land
free and clear from any encumbrances, to perform all necessary investigations and
complete and obtain all necessary permits for the use of the identified land for this
PROJECT, and to apply the value of the land as the local match by OMNITRANS for
its portion of state funding. CITY warrants that it has available to it all funds and
other assets necessary to comply fully with the terms of this Agreement.
4. To attend pertinent meetings set forth by the CONSULTANT and/or OMNITRANS
regarding the development of PROJECT.
5. To provide $880,000 in local funds for the conceptual design, planning, final design
and construction of PROJECT.
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6. To provide all applicable permits required by CITY, the State of California and other
entities at no cost to OMNITRANS as a part of the CITY's local match.
7. To claim full ownership of PROJECT.
8. To maintain and upkeep all portions of the completed PROJECT.
9. To construct, maintain, and operate future traffic control and street safety lighting, to
include the aforementioned be installed on adjacent streets affecting traffic standards
due to PROJECT at CITY's sole expense.
10. To provide conceptual and final design administration, construction management and
the related administrative support required during the bid and construction phase of
the PROJECT.
11. To provide bid guarantee, contract performance, payment bonds, and any other
bonding requirements to the extent deemed adequate by Federal, State, and Local
jurisdictions. For the purpose of this Agreement, City agrees to require that
CONTRACTORS provide performance and payment bonds at a level of 100% of the
contract price.
12. Comply with all provIsIOns of the receipt of State Funds, including DOT's
procurement and construction guidelines related to PROJECT. In addition to and
notwithstanding any other of CITY's obligations under this Agreement, CITY agrees
that it will be responsible for any damages and expenses, including fines imposed by
the DOT and any attorneys fees which OMNITRANS suffers by virtue of the CITY's
breach of any term of this Agreement.
13. To submit, on a quarterly basis, reports that document the status of PROJECT'S
implementation progress, including task completion status, budget status, and
adherence to PROJECT milestones. (Exhibits - B, C and D) Omnitrans shall retain
10% of the State Funds authorized by this Agreement until project completion. The
first report shall be submitted to OMNITRANS within three (3) months of the
execution date of this Agreement.
a. To submit requests for reimbursement or disbursement of State Funds III
conformity with the following procedures:
1). For each reimbursement or disbursement requested, the City shall provide
a written invoice to OMNITRANS specifying the amount requested to be
disbursed, the purpose for which the disbursement is required and such
additional supporting documentation and background information as
OMNITRANS may reasonably require.
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2). Each invoice requesting a distribution shall be accompanied by a written
certification of the CITY's City Administrator or his designee that such
disbursement as requested by the CITY will not constitute any violation of the
terms of the grant, or of any applicable federal, state or local law or regulation
and that the CITY will use the funds disbursed for the purpose indicated in its
lllVOlce.
3). Within five (5) working days of the receipt of an invoice and
accompanying certification, OMNITRANS shall notify the CITY as to what,
if any, additional supporting documentation and background information will
be required. CITY shall make all required documentation available to
OMNITRANS within five (5) working days, unless stipulated otherwise in
writing by OMNITRANS.
4). The first week of the following month after invoice submittal to
OMNITRANS pursuant to Section II.l3.A.(1) above, OMNITRANS shall: (i)
disburse (including through electronic transfer of funds, if so requested and if
CITY provides the necessary information) so much of the requested funds
which it reasonably believes it can disburse without violating the terms of
either the grant or of applicable federal, state, or local law or regulation; and
(ii) notify the CITY as to why it reasonably believes that it is unable to
disburse some or all of the requested funds without violating the terms of
either the grant or of applicable federal, state, or local law or regulation
pursuant to Section II.13.A.(6) herein.
5). To the extent that the DOT advises Omnitrans that any disbursement of
grant funds would constitute a violation of the terms of either the grant or of
applicable federal, state or local law or regulation, Omnitrans shall have no
obligation to disburse such funds. If Omnitrans has any question as to
whether any disbursement will be in violation of any provision of either the
grant or of applicable federal, state or local law or regulation, notwithstanding
the City's certification, it shall be entitled to receive at the City's expense, a
legal opinion from competent counsel of its choice to resolve any such
question.
6). Omnitrans shall have no liability to the City for any refusal to disburse
funds so long as Omnitrans has a good faith and reasonable belief that such
disbursement would constitute a violation of the terms of the grant or of
applicable federal, state or local law or regulation.
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14. Once the parties agree upon a CONSULTANT, CITY shall perform the work
required to complete the PROJECT under this Agreement. CITY shall be responsible
for all duties relative to the construction phase of this PROJECT, including
complying with all bidding and contract administration requirements relative to
construction of a public works project, with all due diligence and in a skillful and
competent manner. CITY shall be responsible to OMNITRANS for any errors or
omissions in its execution of this Agreement. CITY represents and warrants to
OMNITRANS that it and/or its CONTRACTORS has or will have all licenses,
permits, qualifications and approvals of whatever nature that are legally required to
perform the work required to complete the PROJECT. CITY further represents and
warrants that it and/or its contractors shall keep in effect all such licenses, permits,
and other approvals during the term of this Agreement.
15. CITY shall keep and maintain all books, papers, records, accounting records
including but not limited to all direct and indirect costs allocated to the PROJECT,
files, accounts, reports, cost proposals with backup data, and all other material
relating to the PROJECT. CITY shall, upon request, make all such materials
available to OMNITRANS or its designee at any reasonable time during the term of
the Agreement and for three (3) years from the date of final payment to CITY, for
auditing, inspection, and copying. Any contract, entered into as a result of this
Agreement, shall contain all of the provisions of this paragraph.
16. CITY shall defend with counsel reasonably approved by OMNITRANS, indemnify
and hold OMNITRANS, its officials, officers, employees and agents free and
harmless from any and all liability from loss, damage, or injury to property or
persons, including wrongful death, in any manner arising out of or incident to any
breach of contract, negligent acts, omissions or willful misconduct of CITY arising
out of or in connection with CITY's performance of this Agreement and/or the
PROJECT.
17. CITY shall require and ensure that its subcontractors will obtain and maintain
insurance of the types and in the amounts described below and satisfactory to
OMNITRANS.
A. Commercial General Liability Insurance. CITY's CONSULTANT shall maintain
occurrence version commercial general liability insurance or equivalent form with
a combined single limit of not less than $1,000,000 per occurrence. If such
insurance contains a general aggregate limit, it shall apply separately to this
Agreement or be no less than two times the occurrence limit. Such insurance
shall:
(1) Name CITY, OMNITRANS and their officials, officers, employees,
agents, and consultants, as insureds with respect to performance of this
Agreement and/or the PROJECT. Such insured status shall contain no
special limitations on the scope of its protection to the above-listed
insureds.
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(2) Together, with the City of SAN BERNARDINO, be primary with
respect to any insurance or self-insurance programs covering
OMNITRANS, its officials, officers, employees, agents, and
consultants.
(3) Contain standard separation of insured's provisions.
B. Business Automobile Liability Insurance. CITY's CONSULTANTS shall
maintain business automobile liability insurance or equivalent form with a
combined single limit of not less than $1,000,000 per occurrence. Such insurance
shall include coverage for owned, hired and non-owned automobiles.
C. Public and Property Damage Liability Insurance. CITY's CONTRACTORS shall
maintain public and property damage liability insurance policy of not less than
$1,000,000 combined single limits liability coverage for bodily injury and/or
property damage.
D. Workers' Compensation Insurance. CITY's CONSULTANT shall maintain
workers' compensation insurance with statutory limits and employers' liability
insurance with limits of not less than $1,000,000 per accident.
E. Errors and Omissions. CITY's CONSUL T ANT shall maintain errors and
omissions insurance with a $1,000,000 combined single limit bodily and property
damage liability per occurrence and $3,000,000 aggregate or,
F. Professional Liability. $1,000,000 per occurrence.
G. Certificates/Insurer Rating/Cancellation Notice.
(l) CITY shall require, prior to commencement of the Project, that
CONSUL T ANT furnish properly executed certificates of insurance,
and certified copies of endorsements, and policies, which shall clearly
evidence all insurance required in this Section. CITY shall require that
the contract with CITY's consultant include thirty (30) days prior
written notification to both CITY and OMNITRANS of pending
insurance cancellation, expiration, or material reduction.
(2) CITY's CONSULTANT shall maintain such insurance from the time
the Agreement commences until the PROJECT is completed, except as
may be otherwise required by this Section.
(3) CITY's CONSULTANT shall place insurance with insurers having an
A.M. Best Company rating of no less than A: VIII and licensed to do
business in California.
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2011-261
(4) CITY's CONSULTANT shall replace certificates, policies and
endorsements for any insurance expiring prior to completion of the
PROJECT.
18. In the event that the parties agree to go forward with Phase V of the PROJECT, CITY
agrees to contribute a minimum of 50 % of the costs for this Phase that are not paid for
by the funds described in Section 1.1.
19. The CITY shall agree to comply with 49 U.S.C. S 5323(j) and FTA regulations, "Buy
America Requirements," 49 C.F.R. Part 661, and any amendments thereto.
20. The CITY shall comply with all conditions and obligations of the California Department
of Transportation grant for the PROJECT, to the extent it is within CITY's authority to
do so.
SECTION III
IT IS MUTUALLY AGREED:
1. The term of this Agreement shall be from the date of execution by both parties until
PROJECT completion, including submission of all required reports, unless earlier
terminated herein by either party.
2. The cost of any and all maintenance referred to throughout this Agreement shall include
all direct and indirect costs (functional and administrative overhead assessment)
attributable to such work, applied in accordance with the State of California's standard
accounting procedures.
3. Any termination of operation or maintenance to the PROJECT will reqUIre DOT
approval prior to termination. The initiating party, for whom which decided to
terminate service, will notify both DOT and second party in writing, the reasons thereof
and will be responsible for any penalties imposed by DOT.
a. Upon termination of operation or maintenance to the PROJECT, both parties shall
identify a mutually preferred site for transit operations, if applicable. After the
useful life, if relocation is necessary, both parties will notify DOT and request
disposition instructions and identify a mutually preferred location.
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4. CITY acknowledges that failure to comply with any material provlSlons of this
Agreement (such failure to comply is hereinafter called a "Default"), including failure
to adhere to specified PROJECT milestones of Exhibit "B" Milestones and Reporting,
may, in the sole but reasonable discretion of OMNITRANS, result in revocation of
funding for the PROJECT by OMNITRANS. In the event OMNITRANS's Director of
Planning determines that CITY has committed a Default by failing to comply with a
material provision of this Agreement, OMNITRANS will notify CITY in writing of the
Default. CITY shall have thirty (30) days (unless a shorter time is reasonably
determined by OMNITRANS's Director of Planning to be required under the
circumstances) from the date of OMNITRANS' letter of notification of Default to cure
the Default. In the event CITY fails to cure the Default or dispute the Default under the
provisions of Section III, item 11 within the time allowed or if the CITY's dispute is not
resolved in the CITY's favor, OMNITRANS' Director of Planning may revoke the
funding for the PROJECT and terminate this Agreement by written notice to the CITY.
If the Default is a failure to adhere to one or more specified milestones of Exhibit "B",
Milestones and Reports, the CITY may request an amendment to this Agreement which
specifies a revised schedule for attaining the milestone(s). The request for amendment
to the Agreement must provide complete justification for the proposed schedule
revision. If such an amendment is approved by the OMNITRANS Board of Directors,
such amendment shall cure the Default. Any state funds which may become
available as a result of revocation of such funding and termination of this
Agreement due to CITY's failure to timely cure a Default, may not be utilized by
the CITY in any manner, but will be returned to or remain with OMNITRANS to
be used in its sole discretion.
5. No alteration or variation of the terms of this Agreement shall be valid unless made in
writing and signed by the parties hereto, and no oral understanding or agreement not
incorporated herein shall be binding on any of the parties hereto.
6. Upon completion of all work under this Agreement, ownership and title to materials,
equipment, structures, and appurtenances, which are installed within CITY's property,
shall automatically be vested in the CITY.
7. Nothing in the provisions of this Agreement is intended to create duties or obligations to
or rights in third parties not party to this Agreement or affect the legal liability of any
party to the Agreement by imposing any standard of care with respect to the
maintenance of facilities different from the standard of care imposed by law.g
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8. All notices and correspondence are to be sent to the following addresses:
OMNITRANS
Attn: Milo Victoria
CEO/General Manager
1700 W. Fifth Street
San Bernardino, CA 92411-2499
Page 10 of 15
City of SAN BERNARDINO
Attn: Charles E. McNeeley
City Manager
300 N. "D" Street, 6th Floor
San Bernardino, CA 92418
2011-261
9. This Contract shall be binding on the successors and assigns of the parties, but may
not be assigned by CITY without approval from OMNITRANS.
10. Prohibited Interests.
CITY OF SAN BERNARDINO:
A. Solicitation. CITY maintains and warrants that it has not employed nor retained
any company or person, other than a bona fide employee working solely for
CITY, to solicit or secure this Agreement. Further, CITY warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide
employee working solely for CITY, any fee, commission, percentage, brokerage
fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty,
OMNITRANS shall have the right to rescind this Agreement without liability.
B. Conflict of Interest. For the term of this Contract, no member, officer or
employee of CITY, during the term of his or her service with CITY, shall have
any direct interest in this Agreement, or obtain any present or anticipated material
benefit arising there from. CITY covenants that at present time it has no interest,
and will not have any interest, direct or indirect, which would conflict in any
manner with the performance of the Agreement or the PROJECT required
hereunder.
OMNITRANS:
A. Solicitation. OMNITRANS maintains and warrants that it has not employed nor
retained any company or person, other than a bona fide employee working solely
for OMNITRANS, to solicit or secure this Agreement. Further, OMNITRANS
warrants that it has not paid nor has it agreed to pay any company or person,
other than a bona fide employee working solely for o MNITRAN S, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent
upon or resulting from the award or making of this Agreement. For breach or
violation of this warranty, CITY shall have the right to rescind this Agreement
without liability.
B. Conflict of Interest. For the term of this Contract, no member, officer or
employee of OMNITRANS, during the term of his or her service with
OMNITRANS, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising there from. OMNITRANS
covenants that at present it has no interest, and will not have any interest, direct
or indirect, which would conflict in any manner with the performance of the
Agreement or the PROJECT required hereunder.
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11. If any legal action is instituted to enforce or declare any party's rights hereunder, each
party, including the prevailing party, must bear its own costs and attorney's fees.
This paragraph shall not apply to those costs and attorney's fees directly arising from
any third party legal action against a party hereto and payable under Section I,
Paragraph 5 or Section II, Paragraph 16, Indemnification.
12. In the event any dispute arises between the parties hereto under or in connection with
this Agreement, the dispute shall be decided by the Director of Planning of
OMNITRANS or his duly authorized representative within thirty (30) calendar days
after notice thereof in writing which notice shall include a detailed statement of the
grounds of the dispute and why the dispute should be resolved in OMNITRANS'
favor. If CITY does not agree with the decision, then CITY shall have thirty (30)
calendar days after receipt of the decision in which to file a written appeal thereto
with the CEO/General Manager of OMNITRANS. If the CEO/General Manager fails
to resolve the dispute in a manner acceptable to CITY, then such appeal shall be
decided by a court of competent jurisdiction. During resolution of the dispute, CITY
shall proceed with the performance of this Agreement to the extent practicable.
13. Whenever review, consent, or approval of either party must be given or where it can be
withheld, that party must not unreasonably review or unreasonably withhold such
consent or approval.
This Agreement constitutes the entire understanding of the parties with respect to the subject
matter hereof, and there are no other representations, promises, warranties, covenants or
undertakings with respect thereto.
In witness thereof, the parties have caused this Agreement to be executed by their respective
officers.
OMNITRANS
By
Milo Victoria
CEO/General Manager
Date: /t'?/Q'///
; /
Date: C",_ \,,\_ \ \
APPROVW AS TO FORM:
By ~~7~
Omnitrans Legal Counsel
APPROVED AS TO FORM:
c ~ ~____
City Attorney
Page 12 of 15
2011-261
Exhibit - A. Conceptual Plans for the Ruben Compos Park Project
1717 West Fifth Street, San Bernardino, California 92411
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Page 13 of 15
2011-261
Exhibit - B. Project Milestones & Schedule
Completion Date
Preparation of conceptual site plan and related preliminary engmeenng 9/19/11
studies (hydrology, traffic, etc).
Review period by OMNITRANS/CITY (simultaneous review by both 9/19/11-9120/11
agencies each review to take no more than two (2) weeks, after that,
deemed approved by that agency).
Agencies to select "preferred design and site" collectively. 9/20/11
Final design consultant to be selected jointly. N/A
Final design completed. 9/20/11
Review period by OMNITRANS/CITY (simultaneous review by both N/A
agencies each review to take no more than two (2) weeks, after that,
deemed approved by that agency).
Final design complete. N/A
A ward Construction Contract 10/17/11
Start Construction. 11/1/11
Complete Construction 3/30/11
To be developed by the City along with the final construction plan, budget and construction
milestones.
Page 14 of 15
2011-261
Exhibit - C. Estimated Project Construction Budget
To be developed during Phase One.
Page 15of15