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Home My WebLink AboutR29- Economic Development CITY OF SAN BERNARDINO ECONOMIC DEVELOPMENT AGENCY FROM: Emil A. Marzullo Interim Executive Director SUBJECT: Master Cooperative Agreement for the sbX Bus Rapid Transit Project by Omnitrans DATE: February 10,2009 -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Synopsis of Previous Commission/Council/Committee Action(s): On January 8, 2009, Redevelopment Committee Members Johnson, Baxter and Brinker unanimously voted to recommend that the Mayor and Common Council and/or the Community Development Commission consider this action for approval. -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Recommended Motion(s): (Mayor and Common Council) Resolution of the Mayor and Common Council of the City of San Bernardino approving and authorizing the City Manager to execute a Master Cooperative Agreement by and between the City and Omnitrans (sbX Bus Rapid Transit Project) (Community Development Commission) Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino to execute a Master Cooperative Agreement by and between the Agency and Omnitrans (sbX Bus Rapid Transit Project) -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Contact Person(s): Brian Turnbull Phone: (909) 663-1044 Project Area(s): Supporting Data Attached: N/A Ward(s): 151, 2nd, 3rd, 5th and ih 0' Staff Report 0' Resolution(s) 0' Agreement(s)/Contract(s) D Map(s) D Letter(s) FUNDING REQUIREMENTS: Amount: $ -0- Source: N/A Budget Authority: N/A Signa'",e ~~ Emil A. Marzullo, Interim Executive Director ___________________________________________________________---m-----------------=--L-It.B-LE::D------------------------_________________________________m___________________________m____ Commissio~ncil Notes: . 'CJ//t111 5 Lv 2-/ '7/ /J 9# ~ / 9 ~ / ~~~E~i! Fiscal Review: .1 ) -f/ / \_- '5-" n. . n (. .... / -<.. 1 (/_ ..1',: { , \ . t ( .. i t.. .. ~ ,.' I I")" ./'" / Barbara Lindseth, Administrative Services Director ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- P:\Agendas\Comm Dev Commission\CDC 2009\02-17-09 sbX Bus Rapid Transit Project - Master Coop Agreements SR.doc COMMISSION MEETING AGENDA Meeting Date: ' ~ III Dq Agenda Item Number: f!.. ~CJ ECONOMIC DEVELOPMENT AGENCY ST AFF REPORT ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- MASTER COOPERATIVE AGREEMENT FOR THE SBX BUS RAPID TRANSIT PROJECT BY OMNITRANS BACKGROUND: The City of San Bernardino ("City") has historically been known for its low-density, suburban growth patterns. However, as with many other Southern California communities, it is reexamining this growth model in the face of concerns about air quality and climate change and the growing demand for walkable, transit-accessible neighborhoods. San Bernardino is at the forefront of this trend, taking advantage of the growing interest in downtown living to draw new public and private investment into its historic core. Downtown San Bernardino is poised to experience a renaissance in the coming decades, as a number of catalytic redevelopment projects and transit improvements are completed. The City is focusing on increasing homeownership opportunities, concentrating employment in downtown, and engaging downtown's ethnically and culturally diverse population. Civic leaders are drawing new investment into the historic core, taking advantage of a resurging interest in walkable communities and the growing "healthy cities" movement in the Inland Empire. On July 21, 2008, the Mayor and Common Council of the City of San Bernardino ("Council") and the Community Development Commission of the City of San Bernardino ("Commission") approved a Memorandum of Understanding ("MOU") by and among the City, the Agency, Omnitrans and the San Bernardino Associated Governments ("SANBAG"). The purpose of that MOU was to promote mass transit, the planning and funding of various transportation projects, and the construction of the San Bernardino Intermodal Transit Center ("Transit Center") at the southwest comer of the intersection of"E" Street and Rialto Avenue which together will play a major role in the City's future downtown revitalization efforts. The MOU stated the purposes and goals of the parties is furthering mass transportation projects in San Bernardino. In addition, it was anticipated that there would be several further agreements either among all the parties to the MOU or separate agreements between various parties to implement certain aspects of the projects as envisioned under the MOU. The two separate Master Cooperative Agreements (the "Agreements") are the first of those agreements and both Agreements identify certain responsibilities of the City, the Agency and Omnitrans in the design, construction and administration of the "E" Street Corridor sbX Bus Rapid Transit Project (the "Project"). CURRENT ISSUE: On December 7, 2005, the Omnitrans Board of Directors adopted a Locally Preferred Alternative (the "LP A") of the Project, consisting of a 16.1-mile Project and authorized Omnitrans staff to seek a Funding Plan for the Project to include funding from federal, state, local and private sources. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- P:\Agendas\Comm Dev Commission\CDC 2009\02-17-09 sbX Bus Rapid Transit Project - Master Coop Agreements SRdoc COMMISSION MEETING AGENDA Meeting Date: 02/17/2009 Agenda Item Number: f2\Cl Economic Development Agency Staff Report Omnitrans - sbX Bus Rapid Transit Project Page 2 The proposed sbX route is 16.1 miles long, starting from Palm Avenue and traveling southeast on Kendall Drive with a station at California State University, San Bernardino, then south to "E" Street, through downtown San Bernardino, then east on Hospitality Lane, south on Tippecanoe A venue! Anderson Street past Lorna Linda University Medical Center, and then east on Barton Road to the Jerry Pettis Memorial Veterans Health Center. The route offers 16 stations with stops at major activity centers. The Project will meet a variety of mobility needs along the "E" Street Corridor. Existing transit service is slower than auto travel. Given that the corridor has a high need for transit and an aging population, this translates into reduced mobility for many residents. It also results in low usage by other potential riders, particularly during lunchtime and mid-day periods. The corridor also is in need of a catalyst for redevelopment efforts. Depressed economic conditions exist in the central corridor. Parking capacity is a problem at the university and hospital campuses. In addition, scheduling existing transit routes is difficult because of the potential for delays due to congestion. This problem will get much worse as the population and employment grows. Pursuant to these Master Cooperative Agreements, the Agency will provide an "in-kind" contribution to Omnitrans in the form of free office space and the City will provide a level of staffing to be determined by the City to be adequate for the design, engineering and construction of the Project. The City will commit sufficient staffing levels to assist Omnitrans in the Implementation Phase of the Project. City Staffing responsibilities will include: attending all planning and coordination meetings with Omnitrans representatives and consultants; reviewing engineering design plans and specifications for work to be undertaken by Omnitrans public works contractors within City streets and City public rights- of-way; reviewing traffic patterns and traffic lane closures during construction; reviewing engineering designs for foundations and Omnitrans passenger structures to be installed within City public rights-of- way; reviewing new traffic signal patterns and synchronizations with existing traffic signals to coordinate sbX bus movements with those of typical vehicular traffic; coordinating the relocation of City utilities and all other utility lines of public agencies; assisting in the design, site selection and location of all transit stops, transit stations and transit oriented development ("TOD") opportunities within the sbX corridor in the City; and the City shall provide Omnitrans with such map, descriptions, and engineering drawings as may currently be on file with the City, including such information which may be available as to the locations and descriptions of utilities within City public rights-of-way within the sbX Corridor-San Bernardino. During the Construction Phase of the Project: the City will provide inspectors to review and inspect all aspects of the construction work, relocation of all utility lines and appurtenant facilities and to assure that all public works contractors of Omnitrans are complying with the construction in accordance with approved plans and specifications and are adequately managing all traffic control through construction areas; and City engineering staff or consultants shall also be available to provide fast turn around approvals of any field changes that are required due to unforeseen circumstances discovered after the commencement of construction activities. After the Project is constructed and operational, the City will have the responsibility of maintaining and payment of all electrical usage chargers for the traffic control systems and traffic signal lights and undertaking typical and customary City street cleaning and sweeping for the typical travel lanes. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- P:\Agendas\Comm Dev Commission\CDC 2009\02-17-09 sbX Bus Rapid Transit Project - Master Coop Agreements SRdoc COMMISSION MEETING AG ENDA Meeting Date: 02/17/2009 Economic Development Agency Staff Report Omnitrans - sbX Bus Rapid Transit Project Page 3 As part of the transit friendly land use patterns, the City will need to adopt Transit Oriented Development guidelines to encourage mixed use and transit friendly development at the station locations. The City will grant encroachment permits and issue other typical permits and approvals for the following: the construction of the roadway improvements; re-striping of vehicular travel lanes and designated bus lanes; installation of traffic signals; relocation of utilities; and the construction and installation of additional improvements as may be required for bus stops and transit stations within the City rights-of- way. The City 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 the City. The City will also provide all permits as part of its In-Kind support of the Project. The City shall submit to Omnitrans such annual compilation of the "in-kind" costs and services that the City has contributed towards the Project during the Implementation Phase as specified in Section 2.1 and the Construction Phase as specified in Section 2.2. on or before January 1 of each calendar year commencing as of January 1,2010. ENVIRONMENTAL IMP ACT: Approval of these Agreements have no environmental impact under the California Environmental Quality Act ("CEQA") Guidelines. FISCAL IMPACT: The Agency will provide 1,421 square feet of office space to Omnitrans staff at 201 North "E" Street with an annual fair market value of $28,140. This office space will be provided for a period not to exceed three (3) years. The City will provide planning and engineering personnel equivalent to 2.5 FTE staff persons for a period not to exceed 18 months. RECOMMENDATION: That the Mayor and Common Council and the Community Development Commission adopt the attached Resolutions. ~~~., ~_ifs~- Emil A. Marzullo, Interim Executive Director ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- P:\Agendas\Comm Dev Commission\CDC 2009\02-17-09 sbX Bus Rapid Transit Project - Master Coop Agreements SRdoc COMMISSION MEETING AGENDA Meeting Date: 02/17/2009 Agenda Item Number: $11- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM CITY MANAGER TO EXECUTE A MASTER COOPERATIVE AGREEMENT BY AND BETWEEN THE CITY AND OMNITRANS (SBX BUS RAPID TRANSIT PROJECT). WHEREAS, the Mayor and Common Council of the City of San Bernardino (the "City") recognize 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 will play a major role in the future downtown revitalization efforts to be undertaken by the City; and WHEREAS, the City recognizes the benefits to be derived from entering in a Master Cooperative Agreement ("Agreement") with Omnitrans which states the purposes and goals of the parties in implementing, constructing and operating a bus rapid transit project within the City; and WHEREAS, the Agreement sets forth the roles and responsibilities of the City and Omnitrans in the implementation, construction and operation of the sbX Bus Rapid Transit Project. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: Section 1. The Mayor and Common Council of the City of San Bernardino hereby approves the Agreement, attached hereto marked Exhibit' A', and hereby authorizes the Interim City Manager of the City of San Bernardino to execute on behalf of said City the Agreement on behalf of the City together with such technical an conforming changes as may be recommended by the City Manager and approved by the Mayor and Common Council. Section 2. This Resolution shall take effect from and after its date of adoption by the Mayor and Common Council. III 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM CITY MANAGER TO EXECUTE A MASTER COOPERATIVE AGREEMENT BY AND 1 BETWEEN THE CITY AND OMNITRANS (SBX BUS RAPID TRANSIT PROJECT). 2 3 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the 4 Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of ,2009, by the following vote to-wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA BAXTER BRINKER VACANT KELLEY JOHNSON MCCAMMACK Rachel G. Clark, City Clerk The foregoing resolution is hereby approved this day of 2009. Patrick J. Morris, Mayor City of San Bernardino 23 Approved as to form: 24 25 JAMES F. PENMAN, City Attorney 26 27 28 By: 2 "E" STREET CORRIDOR SBX BUS RAPID TRANSIT ("BRT") PROJECT MASTER COOPERATIVE AGREEMENT FOR DESIGN, CONSTRUCTION AND ADMINISTRATION BY AND BETWEEN THE CITY OF SAN BERNARDINO AND OMNITRANS This Master Cooperative Agreement (this "Agreement") is made and entered into by and between the City of San Bernardino, California (the "City"), a municipal corporation duly existing pursuant to the laws of the State of California, and Omnitrans ("Omnitrans"), a joint powers public transit authority, and this Agreement is dated as of this _ day of , 2009 (the "Effective Date"). The City and Omnitrans are each a "Party" to this Agreement and are sometimes collectively referred to hereinafter as the "Parties". RECIT ALS: WHEREAS, at the December 7, 2005, meeting of the Omnitrans Board of Directors, the Omnitrans Board of Directors adopted a Locally Preferred Alternative (the "LP A") of the "E" Street Corridor sbX Bus Rapid Transit Project (the "Project"), and further~ authorized the Omnitrans staff to seek a Funding Plan for the Project to include funding from federal, state, local and private sources, and to commence with implementation of the LP A; and WHEREAS, On December 7, 2005, the Mayor and Common Council of the City adopted Resolution No. 2005-412, "...Adopting in Concept the Locally Preferred Alternative (LP A) for the E Street Transit Corridor and Transit Supportive Uses Adjacent to the LP A Stations..." thereby providing evidence of the support of the City of San Bernardino for the LP A; and WHEREAS, the Project proposes multiple modalities to effectuate the goals of the Parties in reducing travel delay and inefficiency, curtailing greenhouse gas emissions and promoting transit oriented development; and WHEREAS, Omnitrans is in the process of initiating said Project to thus cause the Project to come to fruition; and WHEREAS, Omnitrans anticipates the imminent issuance of a Record of Decision from the Federal Transit Administration ("FT A") in furtherance of the completion of an Environmental Impact Statement ("EIS") pursuant to the National Environmental Protection Act ("NEP A") and further anticipates that it will shortly come into compliance with all requirements 2/11/20091:52:57 PM of the California Environmental Quality Act ("CEQA") for the construction of the Project as described herein; and WHEREAS, Omnitrans will need to obtain all necessary real estate and additional rights- of-way to expand current City streets, for the Project and procure the bus rapid transit ("BRT") vehicles to be used in furtherance of the operation of the Project, and WHEREAS, the Project will be funded, designed and constructed with all due diligence to enable the Project to become fully operational by calendar year 2012 as intended by the Parties to this Agreement; and NOW THEREFORE, in consideration of the mutual covenants and promises as herein provided, the City and Omnitrans do hereby agree as follows: Article 1 DESCRIPTION OF AGREEMENT Section 1.1 The Project. The Project is a proposed 16.1-mi1e transit improvement project that will connect the northern portion of the City of San Bernardino with the City of Lorna Linda. The proposed transit route initiates in the vicinity of Palm A venue and Kendall Drive within the City of San Bernardino and terminates at the Veterans' Administration Hospital located at Barton Road/Benton Street within the City of Lorna Linda. The Project will provide high quality limited stop service with ten (10) minute headways, and a number not to exceed sixteen (16) station stops specially designed for fast boarding and employing modem articulated buses, all as more thoroughly described in Appendix A . Section 1.2 Parties to this Agreement. (a) The City of San Bernardino is a municipal corporation and a charter city organize and existing pursuant to the laws of the State of California. The principal office of the City is located at 300 North "D" Street, Sixth Floor, San Bernardino, California 92418. (b) Omnitrans is 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, to provide public transit service within the urbanized San Bernardino Valley portion of San Bernardino County. The members of Omnitrans are the County of San Bernardino and the Cities of Chino, Colton, Fontana, Lorna Linda, Montclair, Ontario, Redlands, Rialto, San Bernardino, Upland, Grand Terrace and Highland. The principal office of Omnitrans is located at 1700 West Fifth Street, San Bernardino, California 92401. Section 1.3 Purpose of Agreement. The purpose of this Agreement is to set forth a mutual understanding between the Parties of the obligations, terms, covenants, and conditions of each relating to the Project design, construction, administration and scheduling. Further, the Agreement provides evidence of the extent of the commitment of the City and Omnitrans in furtherance of the Project. The Parties acknowledge and agree that this Agreement sets forth the means by which Omnitrans and City shall accomplish the transportation and mass commuting goals of Omnitrans and foster environmental responsibility and the redevelopment and revitalization of various areas within the municipal boundaries ofthe City. Article 2 2/12/20099:52:47 AM CITY COMMITMENTS Section 2.1 Implementation Phase. The "Implementation Phase" of the Project shall consist of all activity in furtherance of the Project occurring between the Effective Date and the commencement of the Construction Phase. (a) The City shall provide such City staff support as it shall deem necessary to fulfill the obligations of the City pursuant to this Agreement to assist Omnitrans in the Implementation Phase of the Project. Such City staff support shall include the appropriate individuals or consultants for participation with Omnitrans representatives prior to and during the Construction Phase (as provided in Section 2.2 below) of the Project (i) at all planning and coordination meetings with Omnitrans representatives and consultants, (ii) to review engineering design plans and specifications for work to be undertaken by Omnitrans public works contractors within City streets and City public rights-of-way, (iii) to review traffic patterns and traffic lane closures during construction, (iv) to review engineering designs for foundations and Omnitrans passenger structures to be installed within City public rights-of-way, (v) to review new traffic signal patterns and synchronizations with existing traffic signals to coordinate sbX bus movements with those of typical vehicular traffic, (vi) to coordinate the relocation of City sewer lines, water lines of the City Municipal Water Department and all other utility lines of public agencies and regulated investor owned public utilities and other appurtenant public utility facilities both below ground and above ground within City public rights-of-way, and (vii) to assist in the design, site selection and location of all transit stops, transit stations and transit oriented development ("TOD") opportunities within the sbX corridor in the City. For the purposes of this Agreement, the terms "City streets", "City rights-of-way" and "City public rights-of-way" shall mean those existing streets and rights-of-way that are either held by the City in fee or pursuant to an easement for public street purposes, including such additional rights-of-way as may be transferred by Omnitrans to the City in furtherance of the implementation of the sbX Corridor- San Bernardino (as defined in Section 3.1). (b) The Parties recognize and agree that during the Implementation Phase of the Project issues, such as traffic signal prioritization, may arise or be discovered which are presently not fully defined, unknown or cannot be addressed as of the date of this Agreement. Such issues may require certain amendments or modifications to this Agreement to be approved by the Parties in the manner as set forth pursuant to Section 15 hereof. Section 2.2 Construction Phase. The "Construction Phase" of the Project shall consist of all activity in the 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._During the Construction Phase the City shall assign such number of City inspectors as determined to be necessary by the CityJo review and inspect all aspects of the construction work, relocation of all utility lines and appurtenant facilities and to assure that all public works contractors of Omnitrans are complying with the construction in accordance with approved plans and specifications and are adequately managing all traffic control through construction areas. The City shall assign or contract with consultants to provide such supervisory and inspection personnel services to be readily available to physically inspect all aspects of the work to be undertaken by Omnitrans without significant delays in the Omnitrans construction schedule for the Project. City engineering staff or consultants shall also be available to provide fast turn around approvals of any field changes that are required due to 2/11/20091 :52:57 PM unforeseen circumstances discovered after the commencement of construction activities. In reference to the issuing of and closing of permits, the City shall provide all construction permits as part of its In-Kind support of the Project. Section 2.3 Operational Phase. The "Operational Phase" of the Project shall consist of all activity in furtherance of the Project commencing with the first entry of an Omnitrans driver into an SbX bus for the purpose of the commencement of regular service along the transit route of the Project. It may overlap the Construction Phase. (a) City Commitments. During the Operational Phase and for each identifiable segment of the Project, the obligations and duties of the City shall be limited to the following: (i) maintaining and payment of all electrical usage chargers for the traffic control systems and traffic signal lights as installed and/or upgraded by Omnitrans within street intersections in City public rights-of-way, and (ii) undertake typical and customary City street cleaning and sweeping in accordance with schedules and timeframes as may then be adopted by the City for those travel lanes within the Project that are used jointly by the sbX buses and the general public (b) Omnitrans Commitments. During the Operational Phase and after the completion of the Construction Phase for each identifiable segment of the Project, the obligations and duties of Omnitrans, in addition to the typical operational and management considerations of the Project and the rapid transit buses of Omnitrans for the sbX line, Omnitrans shall additionally be responsible for the repair and maintenance of the designated travel lanes that are solely used by the rapid transit buses of Omnitrans for the sbX line within public street rights-of-way as further identified in Appendix A above and any other structures constructed or installed by Omnitrans, including any landscaping improvements and irrigation systems within public rights-of-way, except as otherwise agreed by the Parties in writing or, unless ,the necessity for such repair was caused by the actions of City or its agents or contractors. With respect to such designated travel lanes for the exclusive use by rapid transit buses of Omnitrans, the City shall enter into such agreements with Omnitrans as may be permissible under California law to allow Omnitrans the exclusive use of such designated travel lanes for which Omnitrans shall be solely responsible for the maintenance, repair and reconstruction costs thereof and for all other improvements and structures located within such areas. Section 2.4 Notice of Existing and/or Upcoming Projects. During the Implementation and Construction Phases the City agrees to provide notice or other informational documents to Omnitrans and its designated consultants in a timely manner as to any existing and/or proposed projects which may impede or adversely impact the construction of the Project. The City hereby further agrees to work with Omnitrans to resolve any scheduling and construction conflicts that may be caused by such other projects. Section 2.5 TOn Guidelines. The City recognizes that Omnitrans has adopted a set of "Joint Development Policies and Guidelines" towards the goal, inter alia, of encouraging Transit Oriented Development ("TOD") on public and private properties adjacent to Omnitrans Transit Centers and future stations. Such "Joint Development Policies and Guidelines" are attached to this Agreement as Appendix D for informational purposes only. The 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 the sbX Corridor-San Bernardino (as defined in Section 3.1). 2/11/20091 :52:57 PM The Parties recognize that an "E" Street Corridor Task Force was constituted in 2007 comprised of representatives of the 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 Appendix C. Adoption of this Agreement by the City constitutes approval in concept by the 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 Planning Commission and the Mayor and Common Council as may pertain to the consideration 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. Article 3 CITY UNDERTAKING AND COMPLETION OF COMMITMENTS Section 3.1 Right-of-Way Acquisition and Use. (a) The City shall cooperate with Omnitrans and the City shall allow, subject to appropriate conditions as determined by the City and deemed acceptable by Omnitrans, the use of existing City public rights-of-way for the following streets for the use and operation of the sbX rapid transit buses: (i) Kendall Drive from Palm A venue 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 City boundary with the City of Lorna Linda (collectively, the "sbX Corridor-San Bernardino"). Within the sbX Corridor-San Bernardino the City shall grant such encroachment permits, subject to appropriate conditions as determined by the City and deemed acceptable by Omnitrans, and issue such other typical permits and approvals for the construction of the roadway improvements, re-striping of vehicular travel lanes and designated bus lanes, installation of traffic signals, relocation of utilities and the construction and installation of additional improvements as may be required for bus stops and transit stations within the City rights-of-way for the sbX Corridor-San Bernardino. Such encroachment permits for the continued use of the improvements constructed by Omnitrans within the sbX Corridor-San Bernardino shall be for a mutually agreed upon period of time and as otherwise required by law. (b) Omnitrans shall be solely responsible for the acquisition of additional rights-of-way and to the extent necessary to expand the width of any travel lanes or to construct additional travel lanes, to construct bus stops or transit stations or if additional land area is required to accommodate the rapid transit bus movements within the sbX Corridor-San Bernardino. Omnitrans shall pay all costs associated with appraisals, property acquisition agents, legal, relocation costs and the purchase or acquisition of the required rights-of-way. (c) Upon the acquisition of the fee title interests or a public right-of-way easement by Omnitrans to expand any existing public right-of-way within the sbX Corridor-San Bernardino, Omnitrans shall prepare and present an irrevocable offer of dedication to the City for public roadway purposes in a condition and in a form as customarily accepted by the City. Such other 2/11/20091 :52:57 PM dedication shall include the completed roadway improvements and landscaping improvements which shall be in compliance with all engineering plans and specifications as previously approved by the City through the Development Services Department. Upon such dedication, City shall be responsible for all costs and liabilities associated with such dedicated public rights of way. (d) Within 90 calendar days of the final expiration date of any encroachment permit or other authorization issued by the City permitting Omnitrans to construct, own and operate facilities within the City public street rights-of-way in the sbX Corridor-San Bernardino, Omnitrans shall, upon the written request of the City, either remove all structures and above ground improvements previously constructed and installed by Omnitrans as part of the Project, or abandon such structures and improvements in place and quit claim or otherwise transfer all interests of Omnitrans in such structures and improvements to the City. Any location utilized by Omnitrans during the Project shall be restored to its original state upon completion of the Project. Section 3.2 Utility Relocations. (a) It is recognized that various underground and above ground utility relocations may be required to be undertaken within the sbX Corridor-San Bernardino to accommodate the construction of the intended rapid transit bus lanes and the other related structures within City public rights-of-way as necessary for the Project. Omnitrans shall submit to the City for review and approval by the City with respect to City sewer lines, and to the City Municipal Water Department for water lines, such engineering plans and specifications that illustrate the existing utility lines located within the rights-of-way of the sbX Corridor-San Bernardino and the intended rerouting or other engineering solutions to relocate such water and sewer lines within the existing City rights-of-way to the extent feasible. The City agrees to issue permits as necessary for the relocation of the City sewer lines and to undertake good faith efforts to obtain similar permits from the City Municipal Water Department for the relocation of water lines of the City Municipal Water Department; provided, however, that all such relocations of water and sewer lines shall be without any cost whatsoever to the City or the City Municipal Water Department (except additional costs provided in Section 3.2 (c)) and Omnitrans must demonstrate through engineering feasibility studies that there will be no degradation in service to City and City Municipal Water Department customers for water and sewer services and no additional maintenance costs for the City or the City Municipal Water Department due to such relocations. (b) Omnitrans recognizes that other governmental agencies and investor owned public utilities own certain utility lines both underground and above ground within the City public street rights-of-way through the sbX Corridor-San Bernardino. Such utility purveyors have the benefit of franchise agreements, certain easements or other rights granting such utility purveyors certain prior rights to be located within the City public street rights-of-way of the sbX Corridor-San Bernardino. 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 the City public street rights-of-way for the sbX Corridor-San Bernardino. Omnitrans and not the 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 the City public street rights-of-way without any cost or other liability whatsoever to the City. City shall 2111/20091 :52:57 PM assist Omnitrans in identifying such other agencies and utilities and their contact information from information in the City's records. c) The City shall provide Omnitrans with such map, descriptions, and engineering drawings as may currently be on file with the City, including such information which may be available as to the locations and descriptions of utilities within City public rights-of-way within the sbX Corridor-San Bernardino. The Parties recognize that Omnitrans will be undertaking independent engineering analyses, field inspections and testing for the locations and descriptions of all utilities and to verify the location of the utilities indicated on the maps, descriptions, and engineering drawings provided by the City. (d) Any increased capacity or upgrades to the existing system to any City owned utility lines as may be requested in writing by the City to be undertaken by Omnitrans simultaneously with the relocation of any such City owned utility lines shall be at the sole cost of the City with respect to the incremental costs related to such increased capacity. In addition, any costs associated with the presence or removal of hazardous substances that are directly caused by the actions or inactions of the City shall be paid by the City. Any and all other costs associated with the presence or removal of hazardous substances not caused by the City shall be paid from those grant funds that are available to Omnitrans for the undertaking the Construction Phase of the Project; provided, however, that in the event that any line item or other contingency amount of the grant funds for the Construction Phase of the Project are no longer sufficient to undertake the environmental remediation of any such hazardous conditions as may be discovered in furtherance of the relocation of the utilities pursuant to this Section 3.2, both the City and Omnitrans shall work in cooperation to obtain other state or federal funding sources to complete any such required environmental remediation. (e) Any repairs or upgrade due to preexisting known or unknown condition(s), including but not limited to street upgrades and utility relocations shall be at the cost of the City. Omnitrans and/or its contractor/consultant shall make the City aware of the condition and obtain approval in writing before proceeding with the work. Section 3.3 Determination of In-Kind Contributions. The City 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 the City in furtherance of this Agreement. The City shall submit to Omnitrans such annual compilation of the "in-kind" costs and services that the City has contributed towards the Project during the Implementation Phase as specified in Section 2.1 and the Construction Phase as specified in Section 2.2. on or before January 1 of each calendar year commencing as of January 1, 2010. Appendix D is attached and is identified as the "Planning Department Policy and Procedures, In-Kind Contributions" of Omnitrans. This 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 Appendix D in the determination of what shall constitute in-kind contributions for purposes of the Project. Section 3.4 Ongoing Maintenance and Operations. 2/11/20091 :52:57 PM a) Upon completion of the Construction Phase as specified in Section 2.2, the City shall continue to be responsible for the operation of all traffic signals installed or upgraded by Omnitrans within the sbX Corridor-San Bernardino. The City shall be responsible for the repair and maintenance of the public rights-of-way within the sbX Corridor-San Bernardino that are dedicated to the City, except for those certain bus travel lanes designated exclusively for the use of sbX buses of Omnitrans as provided Appendix A. The City at its sole and absolute discretion shall determine all maintenance levels and maintenance schedules for the undertaking all such repair and maintenance activities that are the obligation and responsibility of the City. (b) Omnitrans shall be responsible for the repair, maintenance, upkeep and replacement of all other physical above ground improvements of any nature constructed or placed by Omnitrans within the sbX Corridor-San Bernardino, including, but not limited to, bus stops, transit centers, related signage and other appurtenant facilities whether located on sidewalks between the street curb and the right-of-way line or within the center travel lanes of such streets all as additionally provided in Section 2.3(b) above, unless and until such improvements are dedicated to the City. Section 3.5 CEQA and NEP A Compliance. All funding obligations of the City incurred pursuant to this Agreement are subject to, and performance by the City is hereby specifically conditioned upon, the satisfactory completion of proceedings and the certification of the appropriate CEQA and/or NEP A documents as required to be undertaken and completed by Omnitrans. The City shall have no obligation to undertake any such CEQA and/or NEP A proceedings and certifications in furtherance of either the Project or any other obligation of the City under this Agreement. The City shall be entitled to provide comments to any and all environmental documents prepared by or on behalf of Omnitrans and circulated for review and comment pursuant to CEQA and/or NEP A. Section 3.6 Development of Commuter Parking Facilities. a) Omnitrans recognizes and agrees that the City does not have any present authority to acquire property or otherwise require developers or landowners to construct joint use commuter parking facilities at the area generally identified as "E" Street and Marshall Blvd. as generally described in Appendix A hereto. The City will review any proposals submitted for the development of such commuter parking facilities and reasonably cooperate with Omnitrans as to the consideration and review of such development proposals. b) City recognizes that having ample parking spaces is a project requirement and further agrees to support Omnitrans efforts for obtaining adequate parking spaces within the City. Any support from the City shall be in the form of In Kind Contribution in support of the Project's local share requirements. Article 4 INSURANCE REQUIREMENTS Section 4.1 Prior to the commencement of the Construction Phase of the Project, Omnitrans shall furnish, or shall cause to be furnished, to the City duplicate originals or appropriate certificates of public indemnity and liability insurance in the amount of Ten Million Dollars ($10,000,000.00) combined single limit, naming the City and its elected officials, 2/11/20091:52:57 PM officers, employees, attorneys and agents as additional insureds; this provision is subject to further review by Omnitrans. Said insurance shall cover comprehensive general liability, including, but not limited to, contractual liability; acts of contractors and subcontractors; and premises-operations; broad form property damage, and personal injury including libel, slander and false arrest. In addition, from and after the date of this Agreement, Omnitrans shall provide to the City adequate proof of comprehensive automobile liability insurance covering owned, non-owned and hired vehicles, combined single limit in the amount of Ten Million Dollars ($10,000,000.00) each occurrence; and proof of workers' compensation insurance for all retained contractors and subcontractors providing services with respect to the Project. Any and all insurance policies required hereunder shall be obtained from insurance companies admitted in the State of California and rated at least B+: XII in the most current Best's Key Rating Insurance Guide. Any and all insurance obtained by Omnitrans hereunder shall be primary to any and all insurance which the City may otherwise carry, including self-insurance, which for all purposes of this Agreement shall be separate and apart from the requirements of this Agreement. Appropriate insurance means those insurance policies approved by the City Attorney of City consistent with the foregoing. Any and all insurance required hereunder shall be maintained and kept in force throughout the duration of the Construction Phase of this Agreement. Omnitrans may meet the requirements of this Section 4.1 through coverage provided by its contractors for services performed pursuant to this Agreement. This condition shall in no manner adversely affect or diminish the obligations of the Parties under Article 8 of this Agreement for defense, indemnification and holding harmless of the other Party. Section 4.2 In order to meet the requirements of 4.1, Omnitrans shall require that any contractor providing services with respect to the Project obtain and maintain insurance in accordance with federal requirements and/or the Omnitrans Procurement Policy, whichever is greater, and statutory workers' compensation coverage if required by law. Copies of such aforementioned policies shall be filed with the Risk Manager of the City prior to Omnitrans and its contractors undertaking any work under this Agreement. All insurance policies shall name Omnitrans and its directors, officers, employees, agents, and volunteers and also the City and its elected officials, officers, employees, attorneys and agents as additional insureds in accordance with the most recent Insurance Services Office ("ISO") form. Section 4.3 All said insurance policies shall provide that such insurance polices shall not be subject to change, cancellation, reduction in coverage, or non-renewal except after notice in writing shall have been sent by registered mail addressed to the City and Omnitrans not less than thirty (30) calendar days prior to the effective date thereof. Article 5 AUDIT AND INSPECTION OF RECORDS Section 5.1 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 Implementation and the Project Construction Phases (all foregoing hereinafter referred to as "records"), shall be open 2/11/20091:52:57 PM 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 ofthe Party requesting the audit. Section 5.2 The Parties, through any of their duly authorized representatives, upon reasonable written notice, shall be afforded reasonable access to all of the records of the other related to both the Implementation Phase and the Construction Phase and shall be allowed to interview any employee, consultant or contractor of the other, subject to reasonable limitations, throughout the term of this Agreement. Section 5.3 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. Section 5.4 All records pertaining to the Project must be retained by the Parties for three (3) years following the complete fulfillment and satisfaction by the Parties of all commitments made and undertaken pursuant to this Agreement. Article 6 TERM OF AGREEMENT Section 6.1 This Agreement shall become effective upon the Effective Date and shall remain in full force and effect through and including December 31, 2014, or upon the completion of the Construction Phase, whichever is the later to occur. The obligations of the Parties which, by their nature or description, continue beyond the term of this Agreement will survive the termination of this Agreement. Article 7 CITY FUNDING COMMITMENT AND PARTICIPATION OF OTHER FUNDING SOURCES Section 7.1 The funding commitment of the City pursuant to this Agreement is subject to Omnitrans securing adequate funds from Omnitrans resources, the Federal Government, the State of California, and other local funding sources. However, Omnitrans, at its discretion, may from time to time change the amounts to be received from its funding sources other than the City upon delivery of notice to the City at least thirty (30) calendar days prior to the decision of Omnitrans Board of Directors to change any such funding amounts. Section 7.2 Any additional funds in excess of the amounts identified in the approved budget for the Project that are obtained by Omnitrans to enhance the Project shall not be prohibited pursuant to this Agreement. Jf such money is obtained, Omnitrans, at its discretion, may determine the manner in which such funds will be used and applied in furtherance of the Project. Article 8 INDEMNIFICATION 2/11/20091 :52:57 PM Section 8.1 City Indemnification. Omnitrans hereby undertakes and agrees to indemnify, protect, defend with legal counsel reasonably acceptable to the City and hold harmless the City and its directors, officers, members, managers, consultants, contractors, employees, agents, attorneys, successors and assigns from and against all actions, administrative actions, causes of action, claims, demands, liabilities, damages, judgments, costs, expenses and fees (including, without limitation, reasonable attorneys' fees and court costs), now or hereafter arising from or related to any act or omission, or willful misconduct of Omnitrans, and/or of any of Omnitrans' directors, officers, boards, members, managers, consultants, contractors, subcontractors, employees and agents, and the successors and/or assigns of each of them (collectively referred to as the "Omnitrans Parties"), in performing, or failing to perform, its obligations hereunder. Section 8.2 Omnitrans Indemnification. The City agrees to indemnify, defend, protect and hold harmless the Omnitrans Parties from and against all damages, judgments, administrative actions or orders, costs, expenses and fees (including, without limitation, reasonable attorneys' fees and court costs), now or hereafter, arising from or related to any act or omission, or willful misconduct of the City and/or of any of City's council members, officials, directors, officers, boards, members, managers, consultants, contractors, subcontractors, employees and agents, and the successors and/or assigns of each of them in performing its obligations hereunder. Section 8.3 Nonliability of City Officials and Employees. No member, official or employee of the City or Omnitrans shall be personally liable to the other, or any successor in interest, in the event of any default or breach by the other party or on any obligations under the terms of this Agreement, except for acts or omissions of such member, officer or employee that are not covered as a agent of the City or for gross negligence or willful acts of such member, officer or employee. Section 8.4 Survival of Indemnity. The indemnity proVIsIOns contained within Sections 8.1 through 8.3 shall survive the execution, delivery, performance, termination, and early termination of this Agreement. Article 9 INCORPORATION OF APPENDICES Section 9.1 The following Attachments 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 Appendices have been deleted or superseded by other Sections of this Agreement. Appendix D Appendix E Project Description In-Kind Contribution Policy and Procedure San Bernardino Express Transit Oriented Development Policies and Guidelines Omnitrans Joint Development Policies and Guidelines In-Kind Staff Support Appendix A Appendix B Appendix C 2/11/20091 :52:57 PM Article 10 ORDER OF DOCUMENT PRECEDENCE Section 10.1 In the event of an inconsistency between any of the provisions of this Agreement and/or the Appendices hereto, the inconsistency shall be resolved by giving precedence in the following order: Articles of this Agreement Appendix A Appendix E Appendix B Appendix C Appendix D Article 11 ALTERNATIVE DISPUTE RESOLUTION Section 11.1 Negotiation. In the event of a minor 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 five (5) business days after the receipt of 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 the first negotiating session has been conducted, either Party may then request that the matter be submitted for mediation pursuant to Section 11.2 of this Agreement. Section 11.2 Mediation. If either Party, in accordance with Section 11.1, requests that an unresolved matter 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 either Party rejects the resulting mediation determination, within a period of ten (10) business days after such decision is deemed received, then, upon notice by either Party to the other Party, all disputes, claims, questions or differences shall be finally settled through arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures. Section 11.3 Arbitration. Any major dispute, claim or controversy arising from or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be settled by arbitration to be conducted by one (1) arbitrator selected in the manner as herein provided. Such arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator must be mutually acceptable to both Parties and shall be approved as such in writing prior to the commencement of any arbitration 2/11/20091 :52:57 PM proceedings. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction with respect thereto. Section 11.4 Waiver of Rights. The Parties acknowledge and agree that they are each waiving their rights to resolve disputes in a court and by a judge or jury. Section 11.5 Allocation of Fees and Costs. The selected arbitrator may allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys' fees of the prevailing Party in the award. Article 12 DEFAULT/TERMINATION OF AGREEMENT Section 12.1 Failure or delay by either Party to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided, however, that if the cure cannot be completed within thirty (30) days and the Party who is claimed to be in default by the other Party 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 remedy, such Party shall not be deemed to be in breach hereunder. The Party claiming that a default has occurred shall give written notice of default to the defaulting Party, specifying the deficiencies causing the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the non-defaulting Party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice as specified herein. Section 12.2 Failure to Cure. In the event that the defaulting Party fails to cure, correct or remedy a default within thirty (30) calendar days following receipt of written notice, or in the event of a cure that cannot be completed within thirty (30) days, the party claimed to be in default fails to commence to cure, correct or remedy a default within thirty (30) calendar days following receipt of written notice, and 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 may terminate this Agreement through a written notice of termination. Disputes regarding the facts that may have given rise to termination under this Section 12.2 shall be subject to the alternative dispute resolution as provided in Article 11 of this Agreement, but the right to terminate for such reason shall not be subject to review. Section 12.3 Assertion of Rights. Any failure or delay by a Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. The lights and remedies of the Parties hereunder are cumulative and the exercise by either 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 Party. Section 12.4 Termination of Funding Omnitrans shall retain the right 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, exclusive of the City and the performance of the obligations of the City assumed under this Agreement, having jurisdiction for any aspect ofthe Project 2111/20091 :52:57 PM Article 13 EVENTS BEYOND THE CONTROL OF EITHER PARTY Section 13.1 In the event that either 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 written notification to the other Party within seven (7) calendar days after the occurrence of the event giving rise to such inability specifying the reasons for which the requirements cannot be met. The Parties shall meet and confer in good faith to consider the changed conditions and the potentially adverse impacts upon this Agreement. Both 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 both Parties will recommend such changes as necessary to their respective governing bodies. Any approval of such restructured Agreement shall be subject to the provisions of Section 15.1 hereof. Section 13.2 Enforced Delay: Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by either 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. 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; provided however, that the Party which claims the existence ofthe delay has first provided the other Party with written notice of the occurrence of the delay within seven (7) calendar days after the commencement of such occurrence of delay. Failure to timely submit such notice of the occurrence of the delay shall thereafter preclude such Party from thereafter asserting an enforced delay pursuant to this Section. Article 14 ATTORNEYS' FEES Section 14.1 Either Party who files any action or brings any action or proceeding against the other arising from this Agreement, seeks the resolution of disputes pursuant to either Article 11 or Article 12 hereof, or is made a party to any action or proceeding brought by any other person or governmental entity, then as between Omnitrans and the City, shall bear its own costs and fees, except those required under Articles 4 and 8. Article 15 AMENDMENT TO AGREEMENT Section 15.1 This Agreement, or terms and Sections thereof, may only be amended, changed, modified, waived or altered by a written instrument signed by the appropriate authorities of each of the Parties to this Agreement and approved by the respective governing boards thereof in a manner as required by applicable laws each at their absolute and sole 2/11/20091 :52:57 PM discretion with respect to any such amendments, changes, modifications, waivers or alterations to this Agreement. Section 15.2 The City and Omnitrans have agreed to work in a cooperative manner with respect to the development of the Project in the City. It is acknowledged that this Agreement is being executed during the Implementation Phase of the Project, and that conditions arising or discovered during the Implementation Phase may require amendments to the terms of this Agreement regarding subsequent phases of the Project. Accordingly, the Parties agree that during the Implementation Phase they shall cooperate in reviewing whether it is necessary to amend terms of the Agreement relating to subsequent phases. Article 16 NOTICES, DEMANDS AND COMMUNICATIONS BETWEEN THE PARTIES Section 16.1 Formal notices, demands and communications between Omnitrans and the City shall be deemed sufficiently given if (i) dispatched by registered or certified mail via United State Postal Service, postage prepaid, return receipt requested, as designated in this Section 16.1, (ii) by messenger service for immediate personal delivery, (iii) by express delivery service with written verification of delivery, or (iv) by electronic transmittal including fax transmissions with telephonic verification of receipt. Such written notices, demands and communications may be sent in the same manner to such other addresses as either Party may from time to time designate by written notice to the other Party. Section 16.2 All notices, demands and communications shall be sent, as follows: If to Omnitrans: Omnitrans 1700 West Fifth Street San Bernardino, California 92411 Attention: CEO/General Manager Copy to: Rohan Kuruppu, Director of Planning and Development Services Uto City: City of San Bernardino San Bernardino Hall 300 North "D" Street, Sixth Floor San Bernardino, California 92418 Attention: City Manager's Office Copy to: Director of Development Services Section 16.3 Notices which 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, three (3) business days after deposit with the United States Postal Service. Notices which are dispatched by messenger for immediate personal delivery 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. 2/11/20091:52:57 PM Article 17 AUTHORIZED REPRESENT A TIVES Section 17.1 The following individuals and their successors are designated by the City and Omnitrans as the authorized representatives of the Parties for implementation of this Agreement, and all correspondence and notices relative hereto shall be considered delivered when received by these individuals at the following addresses: For City: City Manager City of San Bernardino 300 North "D" Street, Sixth Floor San Bernardino, CA 92418 For Omnitrans: Durand L. RaIl, Chief Executive Officer/ General Manager Omnitrans 1700 West Fifth Street San Bernardino, CA 92411 Article 18 APPROVALS Section 18.1 Approvals Shall Not Be Unreasonably Withheld. Approvals required of the City or Omnitrans, or any officers, agents or employees of either the City or Omnitrans, shall not be unreasonably withheld and approval or disapproval shall be given within a reasonable time. Article 19 OTHER TERMS AND CONDITIONS Section 19.1 Entire Agreement. This Agreement constitutes the full and complete understanding between the Parties and integrates all of the terms and conditions set forth herein or incidental hereto, and supersedes all negotiations, understandings or previous agreements between the Parties with respect to all or any portion of the design, construction and administration of the Project. This Agreement may only be amended or modified through written amendments hereto, pursuant to Section 15.1, approved and executed in the same manner as the original form of this Agreement. Each and every Appendix to this Agreement is incorporated by reference and made part of this Agreement. Section 19.2 Governing Law; Severability. This Agreement shall be governed by the laws of the State of California and the United States of America. If any provision of this Agreement is held by a trier of fact having competent jurisdiction as to the Parties to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. 2/11120091 :52:57 PM Section 19.3 Binding Upon Each Party. 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, but any assignment must be approved in writing by the other Party for such assignment to be deemed valid. Section 19.4 This Agreement shall be executed in four (4) duplicate originals, each of which shall be deemed to be an original for all purposes. 2/11/20091 :52:57 PM This Agreement has been duly executed and delivered by the Parties as of the date first above written, and this Agreement having been thus executed and delivered by the Parties shall constitute the binding commitments of the Parties in accordance with the terms and provisions of this Agreement. OMNITRANS CITY OF SAN BERNARDINO By: By: Durand L. RaIl, CEO/General Manager Mark Weinberg, Interim City Manager APPROVED AS TO FORM: APPROVED AS TO FORM: By: By: Fiona Luke Legal Counsel for Omnitrans City Attorney ATTEST: By: City Clerk Date: 2/11/20091 :52:57 PM APPENDIX A PROJECT DESCRIPTION The sbX E Street Corridor BRT Project is a proposed l5.7-mile transit improvement project that will connect the northern portion of the City of San Bernardino with the City of Loma Linda (see Figure 1). The proposed transit route would begin in the vicinity of Palm Avenue and Kendall Drive and terminate at the Veterans Administration Hospital located at Barton RoadlBenton Street (see Figure 2). It will provide high quality limited stop service (10 minute headways ) at up to 16 station stops, using modem articulated buses. Service is proposed to be initiated by 2011. Stations will be "rapid bus" style stations designed for fast boarding. Local buses will, in most cases, also stop adjacent to the sbX stations. The project will operate within existing city streets, in the cities of San Bernardino (north of Interstate (1)-10) and Loma Linda (south ofI-lO). Stations - The proposed station locations are planned as follows: (1) Palm AvenueIKendall Drive; (2) University Parkway; (3) Kendall Drive/Little Mountain Drive; (4) Kendall Drive/Shandin Hills Drive; (5) North E Street/West Marshall Boulevard; (6) North E Street/Highland Avenue; (7) North E Street/West Baseline Street; (8) North E Street/Court Street; (9) North E Street/West Rialto Avenue; (10) South E Street/Inland Center Mall; (11); Hospitality Lane/Hunts Lane; (12) Hospitality Lane/Carnegie Drive (vicinity of); (13) Hospitality Lane/Tippecanoe Avenue; (14) South Anderson Street/Redlands Boulevard; (15) South Anderson Street/Mound Street and (16) Barton RoadlBenton Street. Exclusive Lanes - Approximately five point four (5.4) miles of exclusive lanes are anticipated to be implemented in order to ensure competitive operational speeds and design system characteristics are maintained. Exclusive lanes are currently planned as follows: (a) on E Street, from approximately 10th Street to Hospitality Lane, (b) on Hospitality Lane, from E Street to Tippecanoe Avenue, and (c) on Barton Road, from Anderson Street to approximately Benton Street. Where exclusive lanes are not proposed, buses will operate in mixed flow traffic (i.e., general traffic). To allow transit vehicles to enter the mixed flow lanes more efficiently and safely, "transition lanes" will be provided at entrances and exits from the exclusive lane areas. Transit Signal Priority (TSP) will also be used at some intersections to enable rapid buses to enter traffic flow more efficiently and reduce travel delay. Park-and- Ride Facilities - Four (4) park -and -ride facilities are also proposed and will be located in conjunction with the station locations. The following locations have been identified: (1) Palm Avenue/Kendall Drive; (2) North E Street/West Marshall Boulevard; and (3) E Street, north of Court Street (shared parking with Carousel Mall), and (4) In the City of Loma Linda at the south west comer of Redlands and Anderson. 2/11/20091:52:57 PM PLANNING DEPARTMENT POLICY AND PROCEDURES Policy #: CP-01 Capital Projects 1 IPMO Program Management IN KIND CONTRIBUTIONS Page 1 of 7 Omnitrans Board of Directors Approval Date: 12/03/08 APPENDIX B 1.0 POLICY STATEMENT Omnitrans Planning andlor 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. 2/11/20091:52:57 PM PLANNING DEPARTMENT POLICY AND Policy #: CP-01 PROCEDURES Capital Projects IIPMO Program Management IN KIND CONTRIBUTIONS Page 2 of 7 Omnitrans Board of Directors Approval Date: 12/03/08 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, 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. 2/11120091:52:57 PM PLANNING DEPARTMENT POLICY AND Policy #: CP-01 PROCEDURES Capital Projects / IPMO ProQram ManaQement IN-KIND CONTRIBUTIONS Page 3 of 7 Omnitrans Board of Directors Approval Date 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 OMNITRANS 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. 2/11/2009] :52:57 PM PLANNING DEPARTMENT POLICY AND Policy #: CF-01 PROCEDURES Capital Projects /IPMO Program Management IN-KIND CONTRIBUTIONS Page 4 of 7 Omnitrans Board of Directors Approval Date: 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." 2111/20091 :52:57 PM PLANNING DEPARTMENT POLICY AND Policy #: CF-01 PROCEDURES Capital Projects /IPMO Program Management IN-KIND CONTRIBUTIONS Page 5 of 7 Omnitrans Board of Directors Approval Date: VII 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 THIRD 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: 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. 2/11/20091 :52:57 PM PLANNING DEPARTMENT PROCEDURES Procedure #: CF Capital Projects / I PMO Program Management IN-KIND CONTRIBUTIONS Page 6 of 7 Omnitrans Board of Directors Approval Date: 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 may be 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 I 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. 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. 2/11/20091 :52:57 PM PLANNING DEPARTMENT POLICY AND Policy#: CP-01 PROCEDURES Capital Projects / IPMO Program Management IN-KIND CONTRIBUTIONS PaQe 7 of 7 Omnitrans Board of Directors Approval Date 5.0 FLOW CHART None 6.0 REFERENCES . FT A, Grants and Financing - Definitions . 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 2/11/20091 :52:57 PM APPENDIX C "E" Street Corridor Task Force San Bernardino Express Transit Oriented Development Policies and Guidelines 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. 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. c. 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. Give priority to pedestrians and bicycles in building design and street layout. c. 2/11/20091:52:57 PM 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 a built-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. Define the appropriate variety of housing types based on existing and desired development patterns within the context of adjoining neighborhoods. c. 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. The City will discourage land use patterns in transit corridors and around transit stations that may preclude future Transit Oriented Development. c. 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. Ensure that developers and agencies comply with City requirements for road and intersection improvements. d. Land assembly opportunities c. 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. 2/11/20091 :52:57 PM 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. 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 of non-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. 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 green ways. c. 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. 2/11/20091:52:57 PM 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. 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. 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. Investigate utilizing forms-based zoning or other new zone district categories as tools for implementing Overlay Zone Districts. c. f. 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. Surface parking should be located to the side or rear of buildings wherever possible, and broken into smaller areas through the use oflandscaping 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. 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. c. f. Appendix D Omnitrans Joint Development Policies and Guidelines POLICY PLANNING PROCEDURES SUBJECT Joint 2/11/20091 :52:57 PM 2/11/20091:52:57 PM Development Policies and Guidelines APPROVED BY OMNITRANS BOARD OF DIRECTORS DATE: September 6, 2006 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 FT A now encourages transit systems, such as OMNITRANS, 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, in fill 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, 2/11/20091:52:57 PM 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. 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, retail/commercial, recreational/entertainment 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 OMNITRANS, and encourage revitalization and sound growth in the communities which OMNITRANS serves. OMNITRANS'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 OMNITRANS 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: 2/11/20091 :52:57 PM . 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 OMNITRANS 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 financial 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: . 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 OMNITRANS 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 OMNITRANS' 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 party. 2/11/20091 :52:57 PM 5.0 POLICIES OF LOCAL JURISDICTIONS AFFECTING JOINT DEVELOPMENT OMNITRANS 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 OMNITRANS 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 OMNITRANS Board of Directors The OMNITRANS Board of Directors establishes policies on behalf of OMNITRANS for joint development, exercises specific approvals within the joint development process, and maintains oversight of the joint development program. Approve developer selection and a non-binding term 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 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. 2/11/20091:52:57 PM . 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 OMNITRANS 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 Jomt 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 OMNITRANS. 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. . 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: I) 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. 2/11/20091:52:57 PM . 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. · 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 OMNITRANS 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 OMNITRANS, the 2/11/20091 :52:57 PM 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 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 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. · 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 final 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. 2/11/20091 :52:57 PM . The selected developer will then go through any land use, zoning, penmttmg 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; . A pre-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. 8.0 JOINT DEVELOPMENT COMPETITIVE SELECTION PROCESS 8.1 Introduction Joint Development employs a competitive selection process to which the provisions of the OMNITRANS 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 2/11/20091:52:57 PM 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, OMNITRANS 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 OMNITRANS'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 OMNITRANS 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; and Compatibility of development with local requirements and transit area. Economic impact; Enhanced transit centers and OMNITRANS ridership; Financial benefits accruing to OMNITRANS and the local jurisdiction; Joint development project completion time-line. 8.3 Processing of 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 FT A'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. 2/11/20091 :52:57 PM 8.3.3 OMNITRANS 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 OMNITRANS 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, OMNITRANS 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 Officer 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 OMNITRANS and the selected developer until the Board has approved the final negotiated contract. 8.3.9 After receipt of Board approval, the Administrative Officer, 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 2/11/20091 :52:57 PM 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 ifthe 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 Property 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 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 OMNITRANS 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. 2/11/20091 :52:57 PM 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 a non-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 publically-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. APPENDIX E THE CITY OF SAN BERNARDINO'S IN-KIND STAFF SUPPORT ON THE PROJECT DEVELOPMENT TEAM 2/11/20091 :52:57 PM Year Job Title Department FY 2007-08 FY 2008 - 09 FY 2009 - 10 FY 2010 - 11 FY2011-12 FY 2012 - 13 FY 2013 - 14 I I 1 2 3 4 5 6 7 RESOLUTION NO. RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO EXECUTE A MASTER COOPERATIVE AGREEMENT BY AND BETWEEN THE AGENCY AND OMNITRANS (SBX BUS RAPID TRANSIT PROJECT) 8 recognizes the need to promote mass transit, the planning and funding of various transportation WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") 9 projects and the construction of the San Bernardino Express (sbX) Bus Rapid Transit Project which 10 together will playa ml\ior role in the future downtown revitalization efforts to be undertaken by the 11 Agency; and 12 WHEREAS, the Agency recognizes the benefits to be derived from entering into a Master 13 Cooperative Agreement ("Agreement") with Ornnitrans which states the purposes and goals of the 14 parties in constructing a bus rapid transit project within the City and various redevelopment project 16 15 areas of the Agency; and 18 17 Omnitrans in the construction of the sbX Bus Rapid Transit Project. WHEREAS, the Agreement sets forth the roles and responsibilities of the Agency and NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE 19 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS 20 FOLLOWS: 21 Section 1. The Community Development Commission of the City of San Bernardino 22 ("Commission") hereby approves the Agreement and hereby authorizes the Interim Executive 23 Director of the Redevelopment Agency of the City of San Bernardino to execute the Agreement on 24 behalf of the Agency together with such technical and conforming changes as may be recommended 25 by the Executive Director ofthe Agency and approved by the Agency Counsel. 26 Section 2. This Resolution shall take effect from and after its date of adoption by this 27 Commission. 28 1 P:\Agendas\Resolutions\ResolutionsI2009\02_] 7-09 sbX Bus Rapid Transit Project Master Coop Agreement CDC Reso,doc (2)9-6 1 2 3 4 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO EXECUTE A MASTER COOPERATIVE AGREEMENT BY AND BETWEEN THE AGENCY AND OMNITRANS (SBX BUS RAPID TRANSIT PROJECT) 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community 6 Development Commission of the City of San Bernardino at a 7 thereof, held on the 17th day of February, 2009, by the following vote to wit: meeting 8 Commission Members: Ayes Nays 9 ESTRADA 10 BAXTER 11 BRINKER 12 VACANT 13 KELLEY 14 JOHNSON 15 MC CAMMACK 16 Absent Abstain z~ 17 18 19 20 21 22 Secretary day of ,2009. The foregoing Resolution is hereby approved this Patrick J. Morris, Chairperson Community Development Commission of the City of San Bernardino 23 Approved as to Form: 24 1\11_)-, 25 By: ~~~cl~ 26 27 28 2 P:\Agendas\Resolutions\Resolutions\2009\02-17-09 sbX Bus Rapid Transit Project Master Coop Agreement CDC Reso.doc "E" STREET CORRIDOR SBX BUS RAPID TRANSIT ("BRT") PROJECT MASTER COOPERATIVE AGREEMENT FOR OFFICE SPACE AT 201 NORTH "E" STREET BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND OMNITRANS This Master Cooperative Agreement (this "Agreement") is made and entered into by and between the Redevelopment Agency of the City of San Bernardino, California (the "Agency"), a public body, corporate and politic, established as a community redevelopment agency, and Omnitrans ("Omnitrans"), a joint powers public transit authority, and this Agreement is dated as of this _ day of ,2009 (the "Effective Date"). The Agency and Omnitrans are each a "Party" to this Agreement and are sometimes collectively referred to hereinafter as the "Parties". RECITALS: WHEREAS, at the December 7, 2005, meeting ofthe Omnitrans Board of Directors, the Omnitrans Board of Directors adopted a Locally Preferred Alternative (the "LP A") ofthe "E" Street Corridor sbX Bus Rapid Transit Project (the "Project"), consisting of a proposed sixteen point one (16.1) mile transit improvement project, and further authorized the Omnitrans staff to seek a Funding Plan for the Project to include funding from federal, state, local and private sources, and to commence with implementation ofthe LP A; and WHEREAS, Omnitrans is in the process of initiating said Project to thus cause the Project to come to fruition, which Project shall extend from and connect the City of Lorna Linda to a point northerly of the campus of California State University, San Bernardino, and provide high quality limited stop service, using "rapid bus" style stations for quick boarding, along the proposed transit route, as more thoroughly described in Appendix A; and WHEREAS, the Project proposes multiple modalities to effectuate the goals of the Parties and the goals of the City of San Bernardino (the "City") in reducing travel delay and inefficiency, curtailing greenhouse gas emissions and promoting transit oriented development including implementing approximately five and six-tenths (5.6) miles of exclusive lanes along the proposed 1 sbX Master Agreement - Agency and Omnitrans- 01-22-09 route within the City to ensure competitive operational speeds and the maintenance of design system characteristics, providing Transit Signal Priority at various designated street intersections, where exclusive lanes are not proposed, to enable rapid buses to enter mixed-flow traffic more efficiently and establishing park and ride facilities in conjunction with selected station locations; and WHEREAS, Omnitrans anticipates the issuance ofa Record of Decision from the Federal Transit Administration ("FT A") in furtherance of the completion of an Environmental Impact Statement ("EIS") pursuant to the National Environmental Protection Act ("NEP A") and after complying with all requirements of the California Environmental Quality Act ("CEQA") for the construction of the Project as described herein and located within the corporate boundaries of the City; and WHEREAS, the Project will be funded, designed and constructed with all due diligence to enable the Project to become fully operational by calendar year 2012 as intended by the Parties to this Agreement; and WHEREAS, the Agency desires to provide Omnitrans with the use of certain office space located at the Agency owned building located at 20 1 North "E" Street, Second Floor, for purposes of providing office space for Omnitrans' Project staff in proximity to the Project location; and WHEREAS, Omnitrans will need to obtain all necessary real estate and additional rights-of- way to expand current City streets, as necessary, for the Project and procure the bus rapid transit ("BR T") vehicles to be used in furtherance of the operation of the Project; and WHEREAS, Omnitrans and the City have entered into a similar agreement to this Agreement wherein both Omnitrans and the City have agreed as to certain aspects of the Project which shall be the obligations and responsibilities of Omnitrans and the City, respectively (such agreement being referred to herein as the "City/Omnitrans Agreement"). NOW THEREFORE, in consideration of the mutual covenants and promises as herein provided, the Agency and Omnitrans do hereby agree as follows: Article 1 DESCRIPTION OF AGREEMENT Section 1.1 The Project. (a) The Project is a proposed 16.1-mile transit improvement project that will connect the northern portion of the City of San Bernardino with the City of Lorna Linda. The 2 sbX Master Agreement - Agency and Omnitrans- 01-22-09 proposed transit route initiates in the vicinity of Palm A venue and Kendall Drive within the City of San Bernardino and terminates at the Veterans' Administration Hospital located at Barton Road/Benton Street within the City of Lorna Linda. The Project will provide high quality limited stop service with ten (10) minute headways and a number not to exceed sixteen (16) station stops specially designed for fast boarding and employing modem articulated buses. (b) The proposed station locations are planned as follows: (1) Palm Avenue/Kendall Drive; (2) University Parkway; (3) Kendall Drive/Little Mountain Drive; (4) Kendall Drive/Shandin Hills Drive; (5) North "E" Street/West Marshall Boulevard; (6) North "E" Street/Highland Avenue; (7) North "E" Street/West Baseline Street; (8) North "E" Street/Court Street; (9) North "E" StreetlWest Rialto Avenue; (10) South "E" Street/Inland Center Mall; (11); Hospitality Lane/Hunts Lane; (12) in the vicinity of Hospitality Lane/Carnegie Drive; (13) Hospitality Lane/Tippecanoe Avenue; (14) South Anderson Street/Redlands Boulevard; (15) South Anderson Street/Mound Street; and (16) Barton Road/Benton Street. ( c) The Project includes plans for exclusive BR T lanes within public streets in the following proposed locations: on "E" Street, from approximately 1 Oth Street to Hospitality Lane; on Hospitality Lane, from "E" Street to Tippecanoe A venue; and on Barton Road, from Anderson Street to approximately Benton Street. (d) Where exclusive BRT lanes are not proposed within the Project, buses shall operate in mixed flow traffic. To allow transit vehicles to enter the mixed flow lanes more efficiently and safely, "queue jump lanes" will be provided at entrances and exits from the exclusive BR T lane areas. Transit Signal Priority ("TSP") will also be used at selected intersections to enable rapid transit buses to enter traffic flow more efficiently and thus reduce travel delays. (e) The Project additionally proposes a number of park- and-ride facilities to be located in conjunction with the station locations. The following locations have been identified as potential locations for such facilities: Palm A venue/Kendall Drive; North "E" Street/West Marshall Boulevard; and "E" Street, north of Court Street as a part of shared parking with the Carousel Mall subject to presently existing agreements among private parties, the Agency and the City affecting such parking areas. Section 1.2 Parties to this Agreement. (a) The Redevelopment Agency of the City of San Bernardino is a community redevelopment agency, a public body, corporate and politic, duly established by the City pursuant to the Community Redevelopment Law of the State of California. The principal office ofthe Agency is located at 201 North "E" Street, Third Floor, San Bernardino, California 92418. The City is not a party to this Agreement and nothing contained herein shall bind or obligate the City to any performance obligation or financial commitment otherwise required of either Party to this Agreement. 3 sbX Master Agreement - Agency and Omnitrans- 01-22-09 (b) Omnitrans is 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, to provide public transit service within the urbanized San Bernardino Valley portion of San Bernardino County. The members of Omnitrans are the County of San Bernardino and the Cities of Chino, Colton, Fontana, Lorna Linda, Montclair, Ontario, Red1ands, Rialto, San Bernardino, Upland, Grand Terrace and Highland. The principal office ofOmnitrans is located at 1700 West Fifth Street, San Bernardino, California 92401. (c) The City is not a party to this Agreement and shall have no duties, obligations or responsibilities, whether for performance or financial purposes, of any nature whatsoever pursuant to this Agreement. Section 1.3 Purpose of Agreement. The purpose of this Agreement is to set forth a mutual understanding between the Parties ofthe obligations, terms and conditions of each relating to the Project design, construction, administration and schedule and of the extent ofthe commitment of the Agency to Omnitrans and the Project and the corresponding commitments of Omnitrans in furtherance of the Project. The Parties acknowledge and agree that this Agreement provides Omnitrans and the Agency with a means to accomplish the transportation and mass commuting goals ofOmnitrans and to foster environmental responsibility and the redevelopment and revitalization of various areas within the municipal boundaries ofthe City. Article 2 AGENCY COMMITMENTS Section 2.1 Agency Office Space for Omnitrans Use. (a) The Agency hereby agrees to provide office space on the second floor of the Agency owned offices located at 201 North "E" Street in the City consisting of not more than 1 ,200 square feet of contiguous net usable office space for use by Omnitrans employees in furtherance of the Project. Omnitrans shall provide and pay separately for all furniture and furnishings, office equipment and supplies, telephones, computers, copy machines and fax machines as may be required by the Omnitrans staff assigned to this location. Omnitrans shall also pay for telephone lines, internet access and cable television connections and all installation and monthly service charges with respect to all such services. All other utilities consisting of water, sewer, HV AC service during normal business hours established by the Agency, and electricity usage shall be furnished by the Agency without additional cost to Omnitrans. Public parking on a non-reserved basis will be available in the 5-1eve1 parking structure adjacent to the Agency owned offices without cost. Additional time restricted public parking is also available on "E" Street for general public use. (b) Omnitrans shall execute a standard form of Agency tenant lease that is currently in use by the leasing agent for the Agency owned offices, and Omnitrans at its sole cost and expense shall provide all insurance coverages and other indemnifications to the Agency as required by such form 4 sbX Master Agreement - Agency and Omnitrans- 01-22-09 of tenant lease and in accordance with this Agreement, so long as such lease agreement does not violate laws, regulations and policies applicable to Omnitrans. ( c) The Parties recognize that the value of this "in-kind" contribution of office space as shall be provided by the Agency in furtherance ofthe Project has a value to the Agency of not less than $160,179.21 for period oftime from and after the date ofthis Agreement through and including June 30, 2013. The Agency shall have the right to adjust such figure to represent the actual fair market rental value of the office space leased to Omnitrans as such other rental rates for similar office space leased to other tenants as such rental rates may be increased from time to time. The Agency shall have the right to submit statements to Omnitrans pursuant to Section 3.1 below to reflect increases in the dollar value of the "in-kind" services provided in the form of abatement of office lease payments. (d) Any holding over of the tenancy of Omnitrans beyond the period of time identified in subsection ( c) above shall be at the then current per square foot fair market value of rental space then charged by the Agency for other tenants for comparable office space at this location. Article 3 AGENCY UNDERTAKING AND COMPLETION OF COMMITMENTS Section 3.1 Determination ofln-Kind Contributions. The Agency shall determine on at least an annual basis the value of all services that may be provided by the Agency at a later date at the sole option and description ofthe Agency in furtherance of the Project including, but not limited to, cost for the payment or deferral of City fees, costs of staff and consultants assigned to the Project and other costs incurred and paid by the Agency in furtherance ofthis Agreement including increases to the fair market value rental rate of the office space identified in Section 2.1 above. The Agency shall submit to Omnitrans such annual compilation of the "in-kind" costs and services that the Agency has contributed towards the Project during the term of this Agreement for the office space and other office services as specified in Section 2.1 and for the other services as specified in this Section, on or before January 15th of each calendar year commencing as of January 15, 2010. Reference is made to Appendix B identified as the "Planning Department's Policy and Procedures for In-Kind Contributions," that contains 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.. Section 3.2 CEQA and NEP A Compliance. All obligations of the Agency incurred pursuant to this Agreement shall be subject to, and performance by the Agency shall be specifically conditioned upon, the satisfactory compliance with CEQA and/or NEP A documents as may be required to be undertaken and completed by Omnitrans pursuant to the funding sources to be utilized by Omnitrans for the funding, design and construction of the Project. The Agency shall have no obligation to undertake any such CEQA and/or NEP A proceedings and certifications in furtherance of either the Project or any other obligation ofthe Agency as incurred pursuant to this Agreement. However, the Agency shall be entitled to provide comments on any and all environmental documents 5 sbX Master Agreement - Agency and Omnitrans- 01-22.09 and Agency agrees to cooperate with Omnitrans, as reasonably required by any CEQA and/or NEP A proceedings undertaken for the Proj ect. Section 3.3 Development of Commuter Parking Facilities. (a) Omnitrans recognizes and agrees that neither the City nor the Agency have any present authority to acquire property or otherwise require developers or landowners to construct joint use commuter parking facilities at the area generally identified as "E" Street and Marshall Blvd. As provided in the City/Omnitrans Agreement, the City has agreed to review any proposals submitted for the development of such commuter parking facilities and reasonably cooperate with Omnitrans as to the consideration and review of any development proposals submitted to the City. It is further agreed, ifin the future the area generally identified as "E Street and Marshall Blvd." is included in a redevelopment project area of the Agency, the Agency agrees to consider the location as a suitable to include such parking facility in the applicable redevelopment plan. (b) The Parties recognize that the proposed commuter parking facilities at the areas generally identified as "E" Street and Rialto A venue are presently within an existing redevelopment project area of the Agency. All commitments for the acquisition of property and the financial incentives that may be provided by the Agency with respect to any such commuter parking facility shall be as provided in agreements by and between Omnitrans and the Agency as may be approved by the governing boards of Omnitrans and the Agency each at their absolute and sole discretion. (c) The Agency recognizes that having ample parking spaces is a project requirement and further agrees to support the efforts of Omnitrans in obtaining adequate parking spaces within the City. The current identified parking space needs as defined in the Final Refined LP A are: (i) 160 space park-n-ride facility at E-Street and Marshall Blvd; and (ii) 120 spaces at the Carousel Mall subject to obtaining such consents as required by the Reciprocal Easement Agreement ("REA") affecting the use of such parking areas and subject to any future development projects that provide for an adaptive reuse of the Carousel Mall. (d) Subject to the conditions contained in subjection (c)(ii) above, the Agency hereby agrees to use best efforts to provide the 120 parking spaces at the Carousel Mall as an In-Kind Contribution in support of the local share requirements of the Project. Article 4 INSURANCE REQUIREMENTS Section 4.1 In addition to such insurance as shall be required by the form of Agency tenant lease agreement identified in Section 2.1 (b) above, prior to the commencement of any construction or implementation of the Project, Omnitrans shall furnish, or shall cause to be furnished, to the 6 sbX Master Agreement - Agency and Omnitrans- 01-22-09 Agency duplicate originals or appropriate certificates of public indemnity and liability insurance in the amount ofTen Million Dollars ($10,000,000.00) - this provision is subject to further review by Omnitrans combined single limit, naming the Agency and its elected officials, officers, employees, attorneys and agents as additional insureds. Said insurance shall cover comprehensive general liability, including, but not limited to, contractual liability; acts of contractors and subcontractors; and premises-operations; broad form property damage, and personal injury including libel, slander and false arrest. In addition, from and after the date of this Agreement, Omnitrans shall provide to the Agency adequate proof of comprehensive automobile liability insurance covering owned, non- owned and hired vehicles, combined single limit in the amount of Ten Million Dollars ($10,000,000.00) each occurrence; and proof of workers' compensation insurance for all retained contractors and subcontractors providing services with respect to the Project. Any and all insurance policies required hereunder shall be obtained from insurance companies admitted in the State of California and rated at least B+: XII in the most current Best's Key Rating Insurance Guide. Any and all insurance obtained by Omnitrans hereunder shall be primary to any and all insurance which the Agency may otherwise carry, including self-insurance, which for all purposes of this Agreement shall be separate and apart from the requirements of this Agreement. Appropriate insurance means those insurance policies approved by legal counsel to the Agency consistent with the foregoing. Any and all insurance required hereunder shall be maintained and kept in force throughout the duration ofthis Agreement.. Omnitrans may meet the requirements of this Section 4.1 through coverage provided by its contractors for services performed pursuant to this Agreement. This condition shall in no manner adversely affect or diminish the obligations of the Parties under Article 8 of this Agreement for defense, indemnification and holding harmless of the other Party. Section 4.2 In order to meet the requirements of 4.1, Omnitrans shall require that any contractor providing services with respect to the Project obtain and maintain insurance in accordance with federal requirements and/or the Omnitrans Procurement Policy, whichever is greater, and statutory workers' compensation coverage if required by law. Copies of such aforementioned policies shall be filed with the Risk Manager ofthe City on behalf of the Agency prior to Omnitrans and its contractors undertaking any work under this Agreement. All insurance policies shall name Omnitrans and its directors, officers, employees, agents, and volunteers as additional named insureds in accordance with the most recent Insurance Services Office ("ISO") form. The Agency shall be set forth as an additional named insured in each such policy. Section 4.3 All said insurance policies shall provide that such insurance polices shall not be subject to change, cancellation, reduction in coverage, or non-renewal except after notice in writing shall have been sent by registered mail addressed to the Agency and Omnitrans not less than thirty (30) calendar days prior to the effective date thereof. Article 5 AUDIT AND INSPECTION OF RECORDS 7 sbX Master Agreement - Agency and Omnitrans- 01-22-09 Section 5.1 The Parties agree that their respective records of Omnitrans, which shall include but not be limited to: 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 development and the Project construction phases (all foregoing hereinafter referred to as "records"), shall be open to inspection and subject to audit and reproduction by each parties' auditors or other authorized representative 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. Section 5.2 The Parties, through any of their duly authorized representatives, upon reasonable written notice, shall be afforded reasonable access to all of the records ofthe otherrelated to the Project and shall be allowed to interview any employee, consultant or contractor of the other, subject to reasonable limitations throughout the term of this Agreement. Section 5.3 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. Section 5.4 All records pertaining to the Project must be retained by the Parties for three (3) years following the complete fulfillment and satisfaction by the Parties of all commitments made and undertaken pursuant to this Agreement. Article 6 TERM OF AGREEMENT Section 6.1 This Agreement shall become effective upon the Effective Date and shall remain in full force and effect through and including December 31,2014, or upon the completion of the hnplementation Phase as defined in the City/Omnitrans Agreement, whichever is the later to occur. For purposes of this Agreement, completion of the Project development and construction phases, after the completion ofthe Implementation Phase, shall be defined as the "start of revenue operations". Article 7 AGENCY FUNDING COMMITMENT AND PARTICIPATION OF OTHER FUNDING SOURCES Section 7.1 The funding commitment ofthe Agency pursuant to this Agreement is subject to Omnitrans securing adequate funds from Omnitrans resources, the Federal Government, the State of Cali fomi a, and other local funding sources. However, Omnitrans, at its discretion, may from time 8 sbX Master Agreement - Agency and Omnitrans- 01-22-09 to time change the amounts to be received from its non-Agency funding sources upon delivery of notice to the Agency at least thirty (30) calendar days prior to the decision of Omnitrans Board of Directors to change any such funding amounts. Section 7.2 Any additional funds in excess of the amounts identified in the approved budget for the Project that are obtained by Omnitrans to enhance the Project shall not be prohibited pursuant to this Agreement. If such money is obtained, Omnitrans, at its discretion, may determine the manner in which such funds will be used and applied in furtherance ofthe Project. Article 8 INDEMNIFICATION Section 8.1 Agency Indemnification. . Omnitrans hereby undertakes and agrees to indemnify, protect, defend with legal counsel reasonably acceptable to the Agency and hold hannless the Agency and its directors, officers, members, managers, consultants, contractors, employees, agents, attorneys, successors and assigns from and against all actions, causes of action, claims, demands, liabilities, damages, judgments, costs, expenses and fees (including, without limitation, reasonable attorneys' fees and court costs), now or hereafter arising from or related to any act or omission, or willful misconduct ofOmnitrans, and/or of any ofOmnitrans' directors, officers, boards, members, managers, consultants, contractors, subcontractors, employees and agents, and the successors and/or assigns of each of them (collectively referred to as the "Omnitrans Parties"), in performing, or failing to perform, its obligations hereunder. Section 8.2 Omnitrans Indemnification. The Agency agrees to indemnify, defend, protect and hold harmless the Omnitrans Parties with legal counsel reasonably acceptable to the Omnitrans Parties from and against all damages, judgments, costs, expenses and fees (including, without limitation, reasonable attorneys' fees and court costs), now or hereafter, arising from or related to any act or omission, or willful misconduct of the Agency and/or of any ofthe Agency's governing body, officials, directors, officers, boards, members, managers, consultants, contractors, subcontractors, employees and agents, and the successors and/or assigns of each of them in performing its obligations hereunder; provided, however, the Agency shall have no liability under this Section 8.2 should for claims result directly or indirectly from the negligence or wrongful conduct of Omnitrans or the Omnitrans Parties, or anyone of them. Section 8.3 Nonliability of Agency Officials and Employees. No member, official or employee of the Parties shall be personally liable to the other, or any successor in interest, in the event of any default or breach by the other Party or on any obligations under the terms of this Agreement, except for gross negligence or willful acts of such member, officer or employee. Section 8.4 Survival ofIndemnity. The indemnity provisions contained within Sections 8.1 through 8.3 shall survive the execution, delivery, performance and early termination of this Agreement. 9 sbX Master Agreement - Agency and Omnitrans- 01-22-09 Article 9 INCORPORATION OF APPENDICES Section 9.1 The following Attachments are hereby incorporated into and made a part ofthis Agreement wherever referred to as though set forth at length, except where certain portions of specific Appendices have been deleted or superseded by other Sections of this Agreement. Appendices B, C and D are subject to revision as approved by the governing board ofOrnnitrans and shall be binding upon the Agency if and when submitted to and approved by the governing board of the Agency. Appendix D Project Description In-Kind Contributions Policy and Procedure San Bernardino Express Transit Oriented Development Policyand Guidelines Omnitrans Joint Development Policies and Guidelines Appendix A Appendix B Appendix C 10 sbX Master Agreement - Agency and Omnitrans- 01-22-09 Article 10 ORDER OF DOCUMENT PRECEDENCE Section 10.1 In the event of an inconsistency between any of the provisions of this Agreement and/or the Appendices hereto, the inconsistency shall be resolved by giving precedence in the following order. Ifthe applicable Appendix has been revised by the Board ofOmnitrans, then, the version in effect on the date of the event giving rise to the purported inconsistency shall be the version applied by the Parties provided that the Agency has approved such revised Appendix as required by Section 9.1 : Articles of this Agreement Appendix A Appendix B Appendix C Appendix D Article 11 ALTERNATIVE DISPUTE RESOLUTION Section 11.1 Negotiation. In the event of a minor 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 five (5) business days after the receipt of 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 the first negotiating session has been conducted, either Party may then request that the matter be submitted for mediation pursuant to Section 11.2 ofthis Agreement. Section 11.2 Mediation. If either Party, in accordance with Section 11.1, requests that an unresolved matter 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 either Party rejects the resulting mediation determination, within a period often (10) business days after such decision is deemed received, then, upon notice by either Party to the other Party, all disputes, claims, questions or differences shall be finally settled through arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures. Section 11.3 Arbitration. Any major dispute, claim or controversy ansmg from or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, 11 sbX Master Agreement - Agency and Omnitrans- 01-22-09 including the determination of the scope or applicability of this Agreement to arbitrate, shall be settled by arbitration to be conducted by one (1) arbitrator selected in the manner as herein provided. Such arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator must be mutually acceptable to both Parties and shall be approved as such in writing prior to the commencement of any arbitration proceedings. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction with respect thereto. Section 11.4 Waiver of Rights. The Parties acknowledge and agree that they are each waiving their rights to resolve disputes in a court and by a judge or jury. Section 11.5 Allocation of Fees and Costs. The selected arbitrator may allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys' fees of the prevailing Party in the award. Article 12 DEFAULT/TERMINATION OF AGREEMENT Section 12.1 Failure or delay by either Party to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided, however, that ifthe Party who is otherwise claimed to be in default by the other Party 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 remedy, such Party 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, specifying the deficiencies causing the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the nondefaulting Party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice as specified herein. Section 12.2 Failure to Cure. In the event that the defaulting Party fails to commence to cure, correct or remedy a default within thirty (30) calendar days following receipt of written notice, or thereafter fails diligently to complete such cure, correction or remedy, a breach of this Agreement shall be deemed to have occurred. In the event of a breach, the nondefaulting Party may terminate this Agreement through a written notice of termination. Disputes regarding the facts that may have given rise to termination under this Section 12.2 shall be subject to the alternative dispute resolution as provided in Article 11 of this Agreement, but the right to terminate for such reason shall not be subject to review. Section 12.3 Assertion of Rights. Any failure or delay by a Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. The rights and remedies of the Parties hereunder are cumulative and the exercise by either 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 12 sbX Master Agreement - Agency and Omnitrans- 01-22-09 any other default by the other Party. Section 12.4 Termination for Convenience. Both Omnitrans and the Agency may terminate this Agreement in whole or part, at any time by written notice to the other Party when it is in the best interests of the Party so seeking to terminate this Agreement. Article 13 EVENTS BEYOND THE CONTROL OF EITHER PARTY Section 13.1 In the event that either 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 Party within seven (7) calendar days after the occurrence of the event specifying the reasons for which the requirements cannot be met. The Parties shall meet and confer in good faith to consider the changed conditions and the potentially adverse impacts upon this Agreement. Both Parties shall work in good faith to resolve the problem and ifthis meet-and-confer process results in a recommended restructured form of this Agreement, representatives of both Parties will recommend such changes as necessary to their respective governing bodies. Any approval of such restructured Agreement shall be subject to the provisions of Section 15.1 hereof. Section 13.2 Enforced Delay: Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by either 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 ofthe 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 either Party in obtaining governmental actions, reviews, approvals and permits shall not be deemed to be an enforced delay or a force majeure event pursuant to this Section 13.2. 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 ofthe delay; provided however, that the Party which claims the existence of the delay has first provided the other Party with written notice of the occurrence of the delay within seven (7) calendar days after the commencement of such occurrence of delay. Failure to timely submit such notice of the occurrence of the delay shall thereafter preclude the Party from asserting that occurrence as an enforced delay pursuant to this Section. Article 14 ATTORNEYS' FEES 13 sbX Master Agreement - Agency and Omnitrans- 01-22-09 Section 14.1 Either Party who files any action or brings any action or proceeding against the other arising from this Agreement, seeks the resolution of disputes pursuant to either Article 11 or Article 12 hereof, or is made a party to any action or proceeding brought by any other person or governmental entity, then as between Omnitrans and the Agency, shall bear its own costs and fees, except those required under Articles 4 and 8. Article 15 AMENDMENT TO AGREEMENT Section 15.1 This Agreement, or terms and Sections thereof, may only be amended, changed, modified, waived or altered by a written instrument signed by the appropriate authorities of each ofthe Parties to this Agreement and approved by the respective governing boards thereof in a manner as required by applicable laws each at their absolute and sole discretion with respect to any such amendments, changes, modifications, waivers or alterations to this Agreement. Article 16 NOTICES, DEMANDS AND COMMUNICATIONS BETWEEN THE PARTIES Section 16.1 Formal notices, demands and communications between Omnitrans and the Agency shall be deemed sufficiently given if(i) dispatched by registered or certified mail via United State Postal Service, postage prepaid, return receipt requested, as designated in this Section 16.1, (ii) by messenger service for immediate personal delivery, (iii) by express delivery service with written verification of delivery, or (iv) by electronic transmittal including fax transmissions with telephonic verification of receipt. Such written notices, demands and communications may be sent in the same manner to such other addresses as either Party may from time to time designate by written notice to the other Party. Section 16.2 All notices, demands and communications shall be sent, as follows: If to Omnitrans: Omni trans 1700 West Fifth Street San Bernardino, California 92411 Attention: CEO/General Manager Copy to: Rohan Kuruppu, Director of Planning and Development Services If to Agency: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Third Floor San Bernardino, California 92418 Attn: Executive Director 14 sbX Master Agreement - Agency and Omnitrans- 01-22-09 Section 16.3 Notices which 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, three (3) business days after deposit with the United States Postal Service. Notices which are dispatched by messenger for immediate personal delivery 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. Article 17 AUTHORIZED REPRESENT A TIVES Section 17.1 The following individuals and their successors are designated by the Agency and Omnitrans as the authorized representatives of the Parties for implementation of this Agreement, and all correspondence and notices relative hereto shall be considered delivered when received by these individuals at the following addresses: For Agency: Executive Director Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Third Floor San Bernardino, CA 92418 For Omnitrans: Durand L. RaIl, Chief Executive Officer/ General Manager Omni trans 1700 West Fifth Street San Bernardino, CA 92411 Article 18 APPROVALS Section 18.1 Approvals Shall Not Be Unreasonably Withheld. Approvals required of the Agency or Omnitrans, or any officers, agents or employees of either the Agency or Omnitrans, shall not be unreasonably withheld and approval or disapproval shall be given within a reasonable time. Article 19 OTHER TERMS AND CONDITIONS Section 19.1 Entire Agreement. This Agreement constitutes the full and complete understanding between the Parties and integrates all of the terms and conditions set forth herein or incidental hereto, and supersedes all negotiations, understandings or previous agreements between the Parties with respect to all or any portion of the design, construction and administration of the 15 sbX Master Agreement - Agency and Omnitrans- 01-22-09 Project and the providing of the office space subject to the tenant lease agreement as provided in Section 2.1 (c) hereof to be entered into by the Parties subsequent to the date of this Agreement. This Agreement may only be amended or modified through written amendments hereto, pursuant to Section 15.1, approved and executed in the same manner as the original form of this Agreement. Each and every Appendix to this Agreement is incorporated by reference and made part of this Agreement. Section 19.2 Governing Law; Severability. This Agreement shall be governed by the laws ofthe State of California and the United States of America. If any provision ofthis Agreement is held by a trier of fact having competent jurisdiction as to the Parties to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. Section 19.3 Binding Upon Each Party. 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, but any assignment must be approved in writing by the other Party for such assignment to be deemed valid. Section 19.4 This Agreement shall be executed in four (4) duplicate originals, each of which shall be deemed to be an original for all purposes. This Agreement has been duly executed and delivered by the Parties as of the date first above written, and this Agreement having been thus executed and delivered by the Parties shall constitute the binding commitments of the Parties in accordance with the terms and provisions of this Agreement. OMNITRANS REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: By: Durand L. Rall CEO/General Manager Interim Executive Director 16 sbX Master Agreement - Agency and Omnitrans- 01-22-09 APPROVED AS TO FORM: By: Fiona Luke Legal Counsel for Omnitrans sbX Master Agreement - Agency and Omnitrans- 01-22-09 APPROVED AS TO FORM: By: Agency Counsel ATTEST: By: Secretary 17 \ APPENDIX A PROJECT DESCRIPTION The sbX E Street Corridor BRT Project is a proposed 16.1 mile transit improvement project that will connect the northern portion ofthe City of San Bernardino with the City of Lorna Linda (see Figure 1). The proposed transit route would begin in the vicinity of Palm A venue and Kendall Drive and terminate at the Veterans Administration Hospital located at Barton RoadlBenton Street (see Figure 2). It will provide high quality limited stop service (10 minute headways) at up to 16 station stops, using modem articulated buses. Service is proposed to be initiated by 2011. Stations will be "rapid bus" style stations designed for fast boarding. Local buses will, in most cases, also stop adjacent to the sbX stations. The project will operate within existing city streets, in the cities of San Bernardino (north of Interstate (I)-1 0) and Lorna Linda (south ofI-1 0). Stations - The proposed station locations are planned as follows: (1) Palm A venue/Kendall Drive; (2) University Parkway; (3) Kendall Drive/Little Mountain Drive; (4) Kendall Drive/Shandin Hills Drive; (5) North E Street/West Marshall Boulevard; (6) North E Street/Highland Avenue; (7) North E Street/West Baseline Street; (8) North E Street/Court Street; (9) North E Street/W est Rialto A venue; (10) South E Street/Inland Center Mall; (11); Hospitality Lane/Hunts Lane; (12) Hospitality Lane/Carnegie Drive (vicinity of); (13) Hospitality Lane/Tippecanoe Avenue; (14) South Anderson StreetlRedlands Boulevard; (15) South Anderson StreetIMound Street and (16) Barton RoadlBenton Street. Exclusive Lanes - Approximately five and six-tenths (5.6) miles of exclusive lanes are anticipated to be implemented in order to ensure competitive operational speeds and design system characteristics are maintained. Exclusive lanes are currently planned as follows: (a) on E Street, from approximately 10th Street to Hospitality Lane, (b) on Hospitality Lane, from E Street to Tippecanoe Avenue, and (c) on Barton Road, from Anderson Street to approximately Benton Street. Where exclusive lanes are not proposed, buses will operate in mixed flow traffic (i.e., general traffic). To allow transit vehicles to enter the mixed flow lanes more efficiently and safely, "queue jump lanes" transition lanes will be provided at entrances and exits from the exclusive lane areas. Transit Signal Priority (TSP) will also be used at some intersections to enable rapid buses to enter traffic flow more efficiently and reduce travel delay. Park-and-Ride Facilities - Four (4) park-and-ride facilities are also proposed and will be located in conjunction with the station locations. The following locations have been identified: (1) Palm A venue/Kendall Drive; (2) North E Street/W est Marshall Boulevard; and (3) E Street, north of Court Street (shared parking with Carousel Mall), and (4) In the City of Lorna Linda at the south west corner of Red1ands and Anderson. 18 sbX Master Agreement - Agency and Omnitrans- 01-22-09 APPENDIX 8 PLANNING DEPARTMENT POLICY AND PROCEDURES Policy #: CP-O 1 roval Pa e 1 of 7 Date: 12/03/08 1.0 POLICY STATEMENT Omnitrans Planning andlor 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 Aareement 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. 19 sbX Master Agreement - Agency and Omnitrans- 01-22-09 'III PLANNING DEPARTMENT POLICY AND PROCEDURES Policy #: CP-01 roval Pa e 2 of 7 Date: 12/03/08 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, 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-partv 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. 20 sbX Master Agreement - Agency and Omnitrans- 01-22-09 PLANNING DEPARTMENT POLICY AND PROCEDURES Policy #: CP-01 roval Pa e 3 of 7 Date: 12/03/08 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 OMNITRANS 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. 21 sbX Master Agreement - Agency and Omnitrans- 01-22-09 PLANNING DEPARTMENT POLICY AND PROCEDURES Policy #: CF-01 roval Pa e 4 of 7 Date: 12/03/08 LeQal and ReQulatorv Compliance ManaQer 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 221 05(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 22 sbX Master Agreement - Agency and Omnitrans- 01-22-09 working in the State rail assistance program, but not including overhead and general administrative costs." PLANNING DEPARTMENT POLICY AND PROCEDURES Ca ital Pro.ects /IPMO Pro ram Mana ement IN-KIND CONTRIBUTIONS Omnitrans Board of Directors A roval Policy #: CF-01 Pa e 5 of 7 Date: 12/03/08 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 THIRD 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: 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 23 sbX Master Agreement - Agency and Omnitrans- 01-22-09 as cost-sharing or matching. PLANNING DEPARTMENT PROCEDURES Procedure #: CF Capital Projects /IPMO Program Manaaement IN-KIND CONTRIBUTIONS Page 6 of 7 Omnitrans Board of Directors Approval Date: 12/03/08 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 may be 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 I 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. 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. 24 sbX Master Agreement - Agency and Omnitrans- 01-22-09 PLANNING DEPARTMENT POLICY AND PROCEDURES Policy#: CP-01 roval Pa e 7 of 7 Date: 12/03/08 5.0 FLOW CHART None 6.0 REFERENCES . FT A, Grants and Financing - Definitions . 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 25 sbX Master Agreement - Agency and Omnitrans- 01-22-09 Appendix C INSERT POLICY AND PROCEDURE 26 sbX Master Agreement - Agency and Omnitrans- 01-22-09 Appendix D Omnitrans Joint Development Policies and Guidelines POLICY PLANNING PROCEDURES SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 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 opportumtIes 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 (FT A) changed its policies concerning excess land, originally bought with Federal Funds for station development and now available for related uses. The FT A now encourages transit systems, such as OMNITRANS, 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 27 sbX Master Agreement - Agency and Omnitrans- 01-22-09 PLANNING PROCEDURES I POLICY SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 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. 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, retail/commercial, recreational/entertainment 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 pedestrianlbicycle 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 OMNITRANS, and encourage revitalization and sound growth in the communities which OMNITRANS serves. OMNITRANS's joint development 28 sbX Master Agreement - Agency and Omnitrans- 01-22-09 POLICY PLANNING PROCEDURES SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 opportumtIes 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 OMNITRANS 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 ofrevenue for OMNITRANS 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 oftheir past financial contributions to the support of public transit by expanding the local property tax base and adding value to available local revenue. 29 sbX Master Agreement - Agency and Omnitrans- 01-22-09 POLICY PLANNING PROCEDURES SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 3.0 PURPOSE The purpose of this policy and guidelines is: . 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 ofthe OMNITRANS 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 OMNITRANS' 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 party. 5.0 POLICIES OF LOCAL JURISDICTIONS AFFECTING JOINT DEVELOPMENT OMNITRANS coordinates closely with local jurisdictions, Redevelopment Agencies, SANBAG, SCAG, SCRRA and the State of Cali fomi a, to implement its joint development program. Additionally, OMNITRANS requires its selected developers to work with local jurisdictions throughout the joint development process. 30 sbX Master Agreement - Agency and Omnitrans- 01-22-09 POLICY PLANNING PROCEDURES SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 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 OMNITRANS 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 OMNITRANS Board of Directors The OMNITRANS Board of Directors establishes policies on behalf of OMNITRANS for joint development, exercises specific approvals within the joint development process, and maintains oversight of the joint development program. Approve developer selection and a non-binding term 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 responsible for the overall management, administration and conduct of the joint development activities on behalf of OMNITRANS. 6.3 Local Jurisdictions 31 sbX Master Agreement - Agency and Omnitrans- 01-22-09 POLICY \ PLANNING PROCEDURES SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 Jurisdictions in the OMNITRANS service area include: the San Bernardino County, and the Cities of Chino, Chino Hills, Colton, Fontana, Grand Terrance, Highland, Lorna 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 OMNITRANS 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. (N ote: 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 OMNITRANS. 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. 32 sbX Master Agreement - Agency and Omnitrans- 01-22-09 PLANNING PROCEDURES I pQuey SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6. 2006 . 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: I) 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) ofthe 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. 33 sbX Master Agreement. Agency and Onmitrans- 01-22-09 .~! POLICY PLANNING PROCEDURES SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 . 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. . 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 an OMNITRANS 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 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. 34 sbX Master Agreement - Agency and Omnitrans- 01-22-09 POLICY PLANNING PROCEDURES SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 . 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 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 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. . 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. 35 sbX Master Agreement - Agency and Omnitrans- 01-22-09 .-?! PLANNING PROCEDURES I POLICY I SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 . Proposals will be processed in accordance with Sections 7.0 and 8.0. . Following the Board's approval of the negotiated final 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; 36 sbX Master Agreement - Agency and Omnitrans- 01-22-09 .!!! POLICY PLANNING PROCEDURES SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 . A pre-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. 8.0 JOINT DEVELOPMENT COMPETITIVE SELECTION PROCESS 8.1 Introduction Joint Development employs a competitive selection process to which the provisions of the OMNITRANS 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 ofthe 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, OMNITRANS 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 OMNITRANS's best interest.) 37 sbX Master Agreement - Agency and Omnitrans- 01-22-09 PLANNING PROCEDURES I ~L1CY SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 . 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 OMNITRANS 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; and Compatibility of development with local requirements and transit area. Economic impact; Enhanced transit centers and OMNITRANS ridership; Financial benefits accruing to OMNITRANS and the local jurisdiction; Joint development project completion time-line. 8.3 Processing of 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. 38 sbX Master Agreement - Agency and Omnitrans- 01-22-09 POLICY PLANNING PROCEDURES SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6. 2006 8.3.3 OMNITRANS 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 OMNITRANS 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, OMNITRANS 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 Officer 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 OMNITRANS and the selected developer until the Board has approved the final negotiated contract. 39 sbX Master Agreement - Agency and Omnitrans- 01-22-09 PLANNING PROCEDURES I POLICY SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 8.3.9 After receipt of Board approval, the Administrative Officer, 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 a 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 ofthe 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 IfOMNITRANS 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 Adiacent Property Owner 40 sbX Master Agreement - Agency and Omnitrans- 01-22-09 POLICY PLANNING PROCEDURES SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 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 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 OMNITRANS 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 a non-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 41 sbX Master Agreement - Agency and Omnitrans- 01-22-09 POLICY PLANNING PROCEDURES SUBJECT APPROVED BY OMNITRANS BOARD OF DIRECTORS Joint Development Policies and Guidelines DATE: September 6, 2006 assembling the OMNITRANS-owned property with other private or publically-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. 42 sbX Master Agreement - Agency and Omnitrans- 01-22-09