HomeMy WebLinkAbout2011-2921
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RESOLUTION NO. 2011-292
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAP
BERNARDINO APPROVING AN AGREEMENT BY AND AMONG OMNITRANS, THF
SAN BERNARDINO ASSOCIATED GOVERNMENTS, THE CITY OF SAr
BERNARDINO, AND THE SAN BERNARDINO ECONOMIC. DEVELOPMENT
CORPORATION REGARDING THE PLANNING, DESIGN, CONSTRUCTION
OPERATION, AND MAINTENANCE OF THE SAN BERNARDINO TRANSIT
CENTER
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. That the Mayor and Common Council of the City of San Bernan
hereby approve the Agreement between Omnitrans, the San Bernardino Associ
Governments, the City of San Bernardino, and the San Bernardino Economic Developr
Corporation to plan, design, construct, operate, and maintain the San Bernardino Transit Ce
generally located on the 5 -acre piece of property on the southwest corner of Rialto Avenue
"E" Street in Downtown San Bernardino.
SECTION 2. That the City Manager is hereby authorized and directed to execute
behalf of the City said Agreement, a copy of which is attached hereto and incorporated herein
Exhibit "A".
SECTION 3. The authorization to execute the above -referenced Agreement is
if the parties fail to execute it within sixty (60) days of the passage of this Resolution.
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2011-292
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
APPROVING AN AGREEMENT BY AND AMONG OMNITRANS, THE SAN BERNARDINO
ASSOCIATED GOVERNMENTS, THE CITY OF SAN BERNARDINO, AND THE SAN BERNARDINO
ECONOMIC DEVELOPMENT CORPORATION REGARDING THE PLANNING, DESIGN,
CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE SAN BERNARDINO TRANSIT
CENTER
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Ma;
and Common Council of the City of San Bernardino at a Regular meeting thereof, held
the 7th day of November , 2011 by the following vote, to wit:
Council Members: AYES NAYS ABSTAIN ABSENT
MARQUEZ x
JENKINS x
x
BRINKER
I SHORETT x
KELLEY
JOHNSON x
MCCAMMACK
x
x
Rachel G. Clark, City Clerk
The foregoing resolution is hereby approved this � day of November , 2011.
Approved as to form:
JAMES F. PENMAN
City Attorney
By:
-2
Patri k J. Morris,
1 of San Bernardino
2011-292
SANBAG Contract No. 12117
SAN BERNARDINO TRANSIT CENTER (SBTC)
PLANNING, DESIGN, CONSTRUCTION, OPERATING
AND MAINTENANCE AGREEMENT
BY AND AMONG
SAN BERNARDINO ASSOCIATED GOVERNMENTS
1170 West Third Street, 2nd Floor
San Bernardino, California92410-1715
CITY OF SAN BERNARDINO
San Bernardino City Hall
300 North "D" Street, 6`h Floor
San Bernardino, California92418
SAN BERNARDINO ECONOMIC DEVELOPMENT CORPORATION
201 North "E" Street, 3rd Floor
San Bernardino, California92401
AND
OMNITRANS
1700 West Fifth Street
San Bernardino, California92411-2499
012117 9/15/11
2011-292
SAN BERNARDINO TRANSIT CENTER (SBTC)
PLANNING, DESIGN, CONSTRUCTION, OPERATING
AND MAINTENANCE AGREEMENT
This AGREEMENT, entered into as of November 7, 2011, is by and among the San
Bernardino Associated Governments ("SANBAG"), acting as the (i) the San Bernardino
Transportation Authority, and (ii) the County Transportation Commission for San Bernardino
County; the City of San Bernardino, a municipal corporation and a charter city (the "City"); the
San Bernardino Economic Development Corporation, a California non-profit corporation (the
"Agency"); and Omnitrans, a Joint Powers Authority established pursuant to Chapter 5
(commencing with Section 6500) of Division 7 of Title 1 of the Government Code
("Omnitrans"), collectively referred to herein as the "Parties," regarding the planning, design,
construction, operation, and maintenance of the San Bernardino Transit Center ("SBTC"),
generally located at the southwest quadrant of Rialto Avenue and "E" Street in the City of San
Bernardino as shown on Exhibit "A."
RECITALS
WHEREAS, the "SBTC" generally consists of several independent projects including, (1)
an Omnitrans bus facility (the "Omnitrans Facility"); (2) SANBAG's Downtown San Bernardino
Passenger Rail Project; (3) SANBAG's Redlands Passenger Rail Project; (4) the City's San
Bernardino Downtown Streetscape Planning & Design Project and San Bernardino Transit
Oriented Development Overlay District; (5) a surface parking lot; and (6) other certain off-site
improvements; and
WHEREAS, the City has adopted certain Transit Oriented Development Guidelines (the
"TOD Guidelines") which the City intends to utilize as the basis for undertaking appropriate
amendments to the City General Plan and Development Code to codify such TOD Guidelines
into formal land use entitlement and zoning requirements applicable to all private developments
occurring at or in the vicinity of various transit related projects within the City; and
WHEREAS, it is intended that Omnitrans and SANBAG will cooperate with the City in
the conversion of such TOD Guidelines into the formal General Plan and Development Code
amendments that will incorporate the applicable requirements of such TOD Guidelines which
have been previously reviewed and accepted by both Omnitrans and SANBAG to thus become
incorporated into future private developments associated with transit oriented developments
within the City; and
WHEREAS, SANBAG shall be the lead agency to deliver the above referenced projects
comprising the SBTC, either concurrently, or independently, of each other with a target
completion date of November 2013; and that the projects for the SBTC will be coordinated,
planned, designed, and constructed according to the conceptual plans and the estimated Project
Schedule all as further set forth in the attached Exhibits "A" through "E;" and
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WHEREAS, all parties agree and understand that the Redlands Passenger Rail Project
("RPRP") will be completed after the completion of the SBTC; and
WHEREAS, the Parties mutually agree to cooperate and participate in the planning,
design, construction, operation, and maintenance of the SBTC; and
WHEREAS, the Parties conducted the site selection study led by Omnitrans and based
upon the factors identified mutually determined that the southwest quadrant of Rialto Avenue
and "E" Street is the best location for the Omnitrans Facility as a part of the SBTC; and
WHEREAS, SANBAG has identified SBTC as the preferred location for the terminus of
Metrolink and the Redlands Passenger Rail service; and
WHEREAS, the City has identified the SBTC as an optimal location for the development
of mixed use/transit station and pedestrian friendly development to enhance the revitalization of
its downtown through a transit -oriented development overlay district; and
WHEREAS, the Parties desire to specify herein the terms and conditions under which the
SBTC will be undertaken, implemented, and constructed to its completion; and
WHEREAS, the Parties recognize the need for an additional operational and management
("O&M") agreement, in addition to the scope of issues addressed in this Agreement, including,
but not limited to, security, on-site maintenance, utilities, and the joint use buildings that will be
entered into by and among the Parties prior to the commencement of construction of the SBTC.
NOW, THEREFORE, SANBAG, the City, the Agency, and Omnitrans do hereby
mutually agree as follows:
ARTICLE I
GENERAL INFORMATION
Section 1.1 The Parties agree that the above referenced Recitals are true and correct in
all respects and shall constitute a substantive part of this Agreement and are incorporated herein
by this reference. This Agreement supersedes any and all prior oral or written agreements with
respect to the SBTC.
Section 1.2 The Parties shall form a Project Development Team ("PDT") comprised of
duly authorized representatives of the Parties to this Agreement and other stakeholders that shall
routinely meet, at a minimum on a quarterly basis, to review and approve the design documents
in addition to the review and approval of other SBTC tasks and other engineering and
architectural work product as may be prepared by or on behalf of the Parties through the
completion of the construction of the SBTC.
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ARTICLE II
SANBAG-RELATED COVENANTS AND RESPONSIBILITIES
Section 2.1 SANBAG hereby agrees and covenants to be the lead agency responsible
for undertaking, implementation, and construction of the SBTC, more specifically, the planning,
design, and construction, in addition to the operational issues related to joint use facilities among
or between the Parties, including but not limited to, a security office, sales/customer service,
train/bus crew building, and site maintenance as determined by the Parties.
Section 2.2 SANBAG hereby agrees and covenants to appoint the Director of Transit
and Rail Programs as Project Manager for the undertaking, implementation, and construction of
the SBTC.
Section 2.3 SANBAG hereby agrees and covenants to contract with an experienced
architectural/engineering firm or a team of firms (herein collectively referred to as the
"Consultant") for the design and engineering of the SBTC and to conduct meetings with the
Parties and the Consultant.
Section 2.4 SANBAG hereby agrees and covenants to comply with the requirements
of the Federal Transit Administration ("FTA") 2010 Master Agreement, found at
httl)://www.fta.dot.gov/documents/16-Master pdf, including submission to Omnitrans on a
quarterly basis of all necessary reports that document the status of the Omnitrans Facility's
implementation progress, including task completion status, budget status, and adherence to the
funding requirements. SANBAG further hereby agrees and covenants that any equipment or
material purchased pursuant to this Agreement shall be purchased in compliance with 49 U.S.C.
§53230) and FTA regulations, "Buy America Requirements," 49 C.F.R. Part 661, and any
amendments thereto.
Section 2.5 SANBAG hereby agrees and covenants to use its best efforts to construct
the Omnitrans Facility shown in conceptual plans marked Exhibits `B," "C," and "D" inclusive
of on-site and off-site elements that generally comprise the Omnitrans Facility portion of the
SBTC before November 2013 and contingent upon available funding and approvals by the PDT
and the receipt of all other required regulatory approvals. The time for completion of the
Omnitrans Facility shall be extended should any legal challenge (to include writ proceedings) be
filed as to the environmental approvals of the project, or the authority to construct and build the
same, for the length of time that said legal challenge is pending, to include the expiration of
appellate rights. The following is a summary of the aforementioned on-site and off-site
elements. Depending on funding some elements may be reduced, altered, and deleted from the
Omnitrans Facility but only with the concurrence of the Parties. Such elements include:
a. Twenty-two (22) on-site bus bays.
b. Capacity for four (4) articulated buses (part of the total twenty-two (22) on-site
bus bays).
C. Two (2) bus turn -outs on "E" Street (north of Rialto Avenue).
d. Two (2) vehicular points of egress/ingress from Rialto Avenue.
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e. Street conversion and landscaping consistent with City's Downtown Streetscape.
Planning & Design project (attached hereto as Exhibit
f. Onsite landscaping and irrigation
g. Solar canopies that provide an energy source for the site and other possible uses.
h. Public restrooms building.
i. Signage and striping.
j. Site lighting.
k. Coach operator restrooms.
1. Coach operator break room.
M. Maintenance storage building.
n. Parking for maintenance vehicles.
o. Customer service building.
p. Electronic real time notification.
q. Provision for future electric charging to include four (4) bus stalls.
r. Security office building and cameras.
S. Bike lockers.
t. Appropriate vehicular and pedestrian signalization to allow for safe and efficient
traffic flow within the site.
U. Obtain Leadership in Energy and Environmental Design ("LEED") Gold
certification.
Section 2.6 Off -Site Improvements. In addition to the improvements generally
depicted in Exhibit "B" hereto, the Off -Site Improvements shall, contingent on PDT and City
approval and available funding, include:
a. Rialto Avenue improvements including a potential traffic circle at "F" Street.
b. "E" Street improvements including the removal and replacement of the curb,
gutter and sidewalk fronting the Project Site.
C. Traffic signal modifications at the intersection of Rialto Avenue and "E" Street as
needed for SBTC operations.
d. One (1) potential vehicular traffic signal on Rialto Avenue at the exit of the
SBTC.
e. Street landscaping improvements on Rialto Avenue and "E" Street in accordance
with the requirements of the City's "Downtown Streetscape Masterplan."
f. Potential storm run-off detention basin or other facility needed for compliance
with Municipal Separate Storm Sewer Systems ("MS4") permit to support on-site
improvements.
g. Right-of-way acquisition necessary for the potential traffic circle at "F" Street and
the two (2) fixed route bus turnouts on "E" Street immediately north of Rialto
Avenue with one (1) to be located on the west side of "E" Street and one (1) on
the east side.
Section 2.7 On -Site Improvements. In addition to the Omnitrans Facility elements
described above in this Article II, the On -Site Improvements shall include:
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(a) The creation and implementation of building and engineering plans necessary to
provide all of the Omnitrans Facility elements, in addition to other requirements necessary to
construct the SBTC, including but not limited to: buildings plans; engineering plans for precise
grading depicting the bus roadway, sidewalks and other hardscape surfaces, planters, and
utilities; and landscape and irrigation.
(b) Potential storm run-off detention basin or other infrastructure needed for
compliance with the County's MS4 permit for water quality requirements.
Section 2.8 Miscellaneous Studies and Investigations.
a. Lot Line Adjustment. As real property ownership of the Omnitrans Facility and
the Downtown San Bernardino Passenger Rail Project ("DSBPRP") shall be
shared between SANBAG and Omnitrans, SANBAG hereby agrees and
covenants to prepare and process through the City for approval a lot line
adjustment, or as allowed under the Subdivision Map Act, to coincide with the
needs of the Omnitrans Facility and the DSBPRP, contingent upon further
investigations to be conducted during the preliminary des ign/environmental
process.
b. Record of Survey ("ROS"). SANBAG hereby agrees and covenants to file a ROS
with the County of San Bernardino Recorders Office, depicting the final boundary
of the Omnitrans Facility site following the recordation of the lot line adjustment.
C. SANBAG hereby agrees and covenants to perform a geotechnical investigation of
the SBTC site and to prepare a preliminary report necessary for the design and
construction of all anticipated structures such as buildings, walls, canopies and
light poles in addition to such additional studies and engineering designs for all
grading and paving on the SBTC site.
d. SANBAG hereby agrees and covenants to perform a hydraulic and hydrologic
study relating to the SBTC site to determine storm water run-off and compliance
with the MS4 permit.
e. SANBAG hereby agrees and covenants to thoroughly perform all necessary
traffic studies related to the Omnitrans Facility development and to implement all
recommendations and requirements as shall be contained therein as mitigation
measures or other requirements to be imposed upon the SBTC.
Section 2.9 Environmental. SANBAG hereby agrees and covenants to act as lead
agency to prepare the necessary documentation for environmental clearance for the Omnitrans
Facility under the California Environmental Quality Act ("CEQA") and through the National
Environmental Protection Agency ("NEPA"), pursuant to 49 U.S.C. § 5307 ("Section 5307") in
grant CA -90-Y064, CA -90-Y672 and CA -90-Y164, and the Federal Transit Administration
("FTA") pursuant to 49 U.S.C. § 5309 ("Section 5309") in grant CA -03-0624=00, as the
Omnitrans Facility shall also have FTA funding. It is the intent of the Parties that the Omnitrans
Facility shall have one single final environmental compliance document to be prepared as a joint
NEPA/CEQA document in the form determined by SANBAG within the requirements of
NEPA/CEQA.
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Section 2.10 SANBAG hereby agrees and covenants to provide project administration,
construction management, and public relations, in coordination with the Parties, and the related
administrative support required during the development of SBTC. SANBAG further agrees and
covenants to submit to Omnitrans quarterly reports that document the status of the progress of
the SBTC, including task completion status, budget status and adherence to SBTC milestones.
The first report shall be submitted to Omnitrans within three (3) months after issuance of the
"Notice to Proceed" to the public works contractor retained by SANBAG performing the
construction of the SBTC (the "Contractor").
Section 2.11 Downtown San Bernardino Passenger Rail Project and Redlands
Passenger Rail Project. Depending upon final approval of the construction documents and
funding, SANBAG shall construct the DSBPRP generally consisting of expansion of the Eastern
Maintenance Facility ("EMF"); a double -track mainline from the Santa Fe Depot to "E" Street
with four stations, tracks, and platforms at the SBTC; new platforms, track reconfiguration,
pedestrian overpass, parking lot expansions, 3rd Street improvements, and other various
improvements in and around the Santa Fe Depot. Also depending upon final approval of
construction documents and funding, SANBAG shall construct Phase I of the Redlands Corridor
Strategic Plan for the RPRP, generally consisting of the replacement of existing tracks, bridges,
and grade crossings and the addition of one passing siding; four stations; a maintenance facility;
and other related infrastructure components. The conceptual plan marked Exhibit "E" describes
the on-site and off-site elements that generally comprise the rail facility portion of the SBTC.
The following is a summary of those elements.
a. Joint use buildings between rail and bus operations.
b. Track, signals, platforms, canopies and amenities.
C. Storage and maintenance building(s) specifically for rail use.
Section 2.12 Submission of Invoices. SANBAG hereby agrees and covenants to submit
a monthly, itemized statement to Omnitrans on or before the 15th calendar day of each month
that indicates all costs, fees, and other charges that SANBAG has incurred related to the
Omnitrans Facility. The statement shall describe the amount of services and supplies provided
since the initial commencement date, or since the first calendar day of the subsequent billing
period, as appropriate, through the date of the current statement. The statement shall be
submitted in accordance with Section 5.12.
Section 2.13 TOD Guidelines. SANBAG hereby agrees and covenants to cooperate
with the City and to provide comments and input, if requested by the City staff, with regard to
the conversion of the TOD Guidelines into a General Plan Amendment and a Development Code
Amendment as the same shall be applicable to all private development to occur at or near the
vicinity of transit projects of SANBAG within the City.
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ARTICLE III
CITY RESPONSIBILITIES AND COVENANTS
Section 3.1 The City hereby agrees and covenants to appoint the City Manager, or
his/her designee as its authorized representative regarding the development of SBTC.
Section 3.2 The City hereby agrees and covenants to provide expedited reviews,
issuance of permits and inspections at no cost for the SBTC, including but not limited to, plans
for buildings, grading, street improvements, traffic signals; water quality management;
architectural designs; and land use.
Section 3.3 The City hereby agrees and covenants to form an internal working group,
comprised of directors or other senior management personnel of the Public Works, Community
Development and Police Departments, to partner with and assist the Parties in facilitating the
expedited completion of the SBTC.
Section 3.4 The City hereby agrees and covenants to provide City required design
criteria to SANBAG within thirty (30) days after SANBAG has retained the Consultant to thus
enable the Consultant as so retained by SANBAG to consider the inclusion of such design
criteria into the final architectural and engineering plans and specifications for the Omnitrans
Facility.
Section 3.5 TOD Guidelines. The City hereby agrees and covenants to seek the
comments and input from SANBAG and Omnitrans with regard to the conversion of the TOD
Guidelines into a General Plan Amendment and a Development Code Amendment as the same
shall be applicable to all private development to occur at or near the vicinity of transit projects of
SANBAG or Omnitrans within the City.
ARTICLE IV
AGENCY RESPONSIBILITIES AND COVENANTS
Section 4.1 The Agency hereby agrees and covenants to fund, in an amount not to
exceed $2,000,000 the design elements and construction activities of the proposed surface
parking lot located south of the Metrolink platform on the property known as APN 0136-11.1-24,
presently a vacant lot, which is bounded by the property containing what is commonly known as
the "Bekins building" to the east, the Gas Company property to the west, and the Agency owned
baseball stadium to the south. Said property shall also be configured to allow for any property
acquisition exchanges with adjacent land owners for the development of the Downtown San
Bernardino Passenger Rail Project.
Section 4.2 The Agency hereby agrees and covenants to convey, by fee title, that
portion of the property described in Section 4.1 to SANBAG as necessary to construct the
Downtown San Bernardino Passenger Rail Project.
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ARTICLE V
OMNITRANS RESPONSIBILITIES AND COVENANTS
Section 5.1 Omnitrans hereby agrees and covenants to fund the Omnitrans Facility
portion of the SBTC in an amount equal to $6,943,261. Funding sources shall be limited to: (i)
a $5,554,609 apportionment approved by pursuant to 49 U.S.C. § 5307 ("Section 5307") in grant
CA -90-Y064, CA -90-Y672 and CA -90-Y164 and by the FTA pursuant to 49 U.S.C. § 5309
("Section 5309") in grant CA -03-0624-00, and (ii) a $1,388,652 apportionment from State
Transit Assistance Funds ("STAF") and Local Transportation Funds ("LTF"). Said amount
equal to $6,943,261 will be used directly for the Omnitrans Facility portion of the SBTC.
Omnitrans shall reimburse SANBAG the total of all such documented costs incurred by
SANBAG according to the procedures set forth herein and in an amount not to exceed
$6,943,261 as further provided in Section 2.12.
Section 5.2 As of the date of this Agreement the Parties recognize that not all funding
for the Omnitrans Facility has been secured in dollar amounts in excess of the $6,943,261 dollar
amount specified in Section 5.1. The Parties agree to pursue, without cost or liability on the part
of the Parties, additional funding as may be required to construct and deliver of the maximum
portion of the Omnitrans Facility as possible with either current or future funds.
Section 5.3 Omnitrans hereby agrees and covenants to prepare written specifications
to be provided to the PDT and SANBAG regarding the general space requirements of Omnitrans
and further identifying the other amenities that are required to meet the operational needs of
Omnitrans. Specific needs will be identified by Omnitrans and presented to the other Parties
during the preliminary design phase of the Omnitrans Facility design development.
Section 5.4 Omnitrans hereby agrees and covenants to appoint the Omnitrans Director
of Planning & Development Services or his or her designee as its authorized representative
regarding the development of the Omnitrans Facility.
Section 5.5 Omnitrans hereby agrees and covenants to attend all pertinent meetings set
forth by the Consultant and/or SANBAG regarding the all aspects of the design, funding and
construction of the Omnitrans Facility.
Section 5.6 TOD Guidelines. Omnitrans hereby agrees and covenants to cooperate
with the City and to provide comments and input, if requested by City staff, with regard to the
conversion of the TOD Guidelines into a General Plan Amendment and a Development Code
Amendment as the same shall be applicable to all private development to occur at or near the
vicinity of transit projects of Omnitrans within the City.
Section 5.7 Omnitrans hereby agrees and covenants to provide the land necessary to
construct the SBTC as shown on Exhibit `B" through such documents and agreements as may
reasonably be required by SANBAG to gain access to the SBTC site and to legally perform work
to the said site and to undertake the construction of the SBTC. Omnitrans shall retain full
ownership of the property as owned by Omnitrans comprising the SBTC site.
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Section 5.8 Omnitrans hereby agrees and covenants to accept the dedication of and
full ownership responsibilities and all other operational and ownership liabilities of the
Omnitrans Facility, including all buildings, airspace, landscape, and all other fixtures and
improvements located on Omnitrans property upon completion of construction.
5.8.1 The Parties hereby acknowledge and agree that a separate
agreement concerning the operation and management ("O&M") of the SBTC and inclusive of
other joint use facilities that may be developed for the benefit and use of the Parties during the
design process of the SBTC shall be executed between the Parties prior to the commencement of
construction for the SBTC and each other joint use facility.
Section 5.9 Omnitrans hereby agrees and covenants that upon SANBAG's acceptance
of the construction as having been completed by the Contractor and the City's issuance of a
Certificate of Occupancy, together constituting the "Final Acceptance," Omnitrans will provide
all equipment and staff necessary to operate the Omnitrans Facility.
Section 5.10 Omnitrans hereby agrees and covenants that upon Final Acceptance,
Omnitrans will begin transit operations on the next available service/schedule change date,
provided SANBAG, using its best efforts, provides an accurate date of occupancy at least ninety
(90) days prior to the next available service/schedule change date.
Section 5.11 Omnitrans hereby agrees and covenants to comply with all requirements of
the FTA 2010 Master Agreement, found at http://www.fta.dot.gov/docuinents/16-Masterpdf,
including submission of reports documenting the status of the implementation progress of the
Omnitrans Facility, including task completion status, budget status, and adherence to the
development of the Omnitrans Facility, all of which shall be submitted to the FTA on a quarterly
basis. Omnitrans hereby further agrees and covenants that any equipment or material purchased
pursuant to this Agreement shall be purchased in compliance with 49 U.S.C. §53230) and FTA
regulations, "Buy America Requirements," 49 C.F.R. Part 661, and any amendments thereto.
Section 5.12 Omnitrans hereby agrees and covenants to pay all invoices as received
from SANBAG, if any should be submitted by SANBAG on or before the 15th calendar day of
each month, in compliance with Section 2.12. Omnitrans shall remit payment during the first
full week of the following month to the designated payee or as a reimbursement to SANBAG.
Omnitrans shall not unreasonably withhold payment and shall promptly pay all undisputed
amounts. Should Omnitrans dispute any portion of an invoice, Omnitrans must deliver written
notice within ten (10) working days after receipt of the invoice from SANBAG. The written
notice must reasonably describe the dollar amount withheld and the reason or reasons therefore;
provided, however, that Omnitrans shall not be entitled to dispute the amount of a condemnation
award or any item previously approved by Omnitrans. Any such dispute shall be resolved
pursuant to Article VII: Default and Remedies. Failure of Omnitrans to deliver timely written
notice of a disputed payment or reimbursement as required in this Section 5.12 shall be deemed
approval by Omnitrans of any such payment or reimbursement.
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ARTICLE VI
SELF-INSURANCE AND MUTUAL INDEMNIFICATION
Section 6.1. Self -Insured Public Entities. Each Party hereby represents and covenants
that they are an authorized self-insured public entity for purposes of professional liability,
general liability, automobile liability, and workers compensation, and each Party warrants that
through their respective program of self-insurance, it has adequate coverage and/or resources to
protect against its potential liabilities arising out of the performance of this Project and
Agreement.
Section 6.2 Mutual Indemnification. The Parties agree that each Party shall
responsible for its own actions, and the actions of its officers, employees, agents, and volunteers
in the performance of this Project and Agreement. Each Party shall indemnify, defend and hold
harmless all other Parties and their officers, employees, agents, and volunteers from any cost,
expense, fine, penalty, claim, demand, judgment, loss, injury and/or liability of any kind or
nature, including personal injury, death or property damage, or regulatory violation(s) asserted or
otherwise, whether in contract or in tort, that may arise from, directly or indirectly, or be in any
way caused by any wrongful or negligent act, error, or omission of the indemnifying Party, its
officers, employees, agents, or volunteers in the performance of this Project or this Agreement,
including without limitation the payment of all consequential damages and reasonable attorneys'
fees, expert witness fees and other related costs and expenses of defense. The sole exception to
the indemnifying Party's obligation to indemnify shall be for acts of negligence or willful
misconduct of the indemnified Party, its officers, employees, agents, or volunteers. This is a
comparative negligence provision and each Party shall bear their own costs to the extent to
which they are each negligent. The indemnifying Party shall defend, at its own cost, expense
and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that
may be brought or instituted against the indemnified Party, its officers, employees, agents, or
volunteers. The indemnifying Party shall pay and satisfy any judgment, award or decree that
may be rendered against the indemnified Party, its officers, employees, agents, or volunteers in
any such suits, actions or other legal proceedings. Each Party's obligation to indemnify shall not
be restricted to the terms or limitations of its self-insurance coverage or to any insurance
proceeds, if any, received.
ARTICLE VII
DEFAULT AND REMEDIES
Section 7.1 Default. Each of the following shall constitute an "event of default"
hereunder:
(a) A failure by any Party to make, or cause to be made, any payment due and
payable by said Party to another non -defaulting Party on or before the date that any such
payment or deposit is due following the expiration of any applicable grace period set forth in the
applicable document;
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(b) Failure by any Party to perform or observe any of its respective covenants or
agreements contained in this Agreement and such failure shall continue for the period and after
the delivery of notice by a non -defaulting Party;
Section 7.2 Opportunity to Cure. Except as provided below, no event of default under
Section 7.1 hereof shall constitute a "Default" hereunder until:
(a) The non -defaulting Party shall give written notice to the defaulting Party of such
event of default specifying the particular facts and circumstances that cause and constitute an
event of default to be deemed to be a Default hereunder;
(b) The defaulting Party shall have had thirty (30) days after receipt of such written
notice presented in the manner specified in Section 8.9 hereof to correct the event of default, and
if such defaulting Party shall not have corrected such event of default if such event of default
cannot be corrected within thirty (30) days, the defaulting Party shall initiate and diligently
pursue (in the reasonable judgment of the non -defaulting Party) such corrective measures as may
be required to cure such event of default; provided, however, that such event of default must be
remedied within one hundred eighty (180) days after the occurrence of the event of default that
established such event of default by the non -defaulting Party; in the event the defaulting Party
shall have failed to initiate and diligently pursue (in the reasonable judgment of the non -
defaulting Party) appropriate corrective action to completion as required by this Section, then
such event of default shall be a Default hereunder;
(c) If the defaulting Party shall fail to institute an action necessary to cure any event
of default described in Section 7.1(b) or, if such action is instituted, the defaulting Party shall fail
to diligently pursue such action, the non -defaulting Party may, at its option, initiate such
corrective action as it deems appropriate; and
(d) All notices of an event of default and all Defaults hereunder shall be provided by
a non -defaulting Party to the defaulting Party at the addresses set forth in Section 8.9 hereof.
Failure to provide notice in the manner required hereunder shall not limit the rights of any Party
to subsequently provide notice in the required manner nor shall such failure be considered as a
waiver of any rights of any party pursuant to this Agreement. Notices shall be given to the
defaulting Party and to all other Parties by the non -defaulting Party for perfection of the delivery
of notices pursuant to this Section 7.2.
Section 7.3 Remedies. Whenever any event of default pursuant to Section 7.1 shall
become a Default under Section 7.2 hereof and shall be continuing, any or all of the following
remedial procedures shall be available to the non -defaulting Party:
(a) The non -defaulting Party, with respect to events of default occurring pursuant to
Section 7.1, may take whatever action at law or in equity that may appear necessary or desirable
to collect the payments required to be made by the defaulting Party then due and thereafter to
become due; and
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(b) The non -defaulting party, with respect to all events of default occurring pursuant
to Section 7.1, may take whatever action at law or in equity may appear necessary or desirable to
cause the defaulting Party to take an action that is required to be taken pursuant to this
Agreement or to refrain from taking an action that is precluded pursuant to this Agreement.
Section 7.4 No Remedy Exclusive. No remedy herein conferred upon or reserved to
any Party is intended to be exclusive of any other available remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any
right or power accruing upon any Default shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right or power may be exercised from time -to -
time and as often as may be deemed expedient.
Section 7.5 Attorneys' Fees. In addition to any other remedies provided hereunder or
available pursuant to law, if any Party brings an action or proceeding to enforce, protect or
establish any right or remedy hereunder, the prevailing Party shall be entitled to recover from the
other Party or Parties, as applicable, its costs of suit and reasonable attorneys' fees. The costs,
salary and expenses of the City Attorney and members of his office in enforcing the Agreement
on behalf of the City or of the Agency shall be considered as "attorneys' fees" for the purposes
of this Section.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 The term of this Agreement shall be from the date of execution of this
Agreement by the Parties until the Omnitrans' Final Acceptance has been determined by
SANBAG, including submission of all required reports, unless earlier terminated pursuant to the
provisions herein.
Section 8.2 All costs referred to throughout this Agreement shall include all direct and
indirect costs attributable to such work, including but not limited to, functional and
administrative overhead assessment, applied in accordance with the State of California's
standard accounting procedures.
Section 8.3 Any termination of operation or maintenance to the Omnitrans Facility
shall require FTA approval prior to such termination. Should termination be necessary, the
initiating Party will provide written notice to both the FTA and all non -initiating Parties, which
shall include the reasons therefor, and will be responsible for any penalties imposed by FTA as a
result of the termination of operation or maintenance to the Omnitrans Facility.
(a) Upon notice of termination of operation and or maintenance of the Omnitrans
Facility, the Parties shall identify a mutually preferred site for transit operations, if applicable.
After the useful life of the Omnitrans Facility, or if relocation is necessary, Omnitrans will notify
FTA, as legally required, and will request disposition instructions from the FTA for the
Omnitrans Facility and Omnitrans shall identify the mutually preferred location of the
replacement facility subject to the concurrence of the Parties hereto.
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Section 8.4 No alteration to or variation of the terms of this Agreement shall be valid
unless made in writing and signed by the Parties hereto, and no oral understanding or agreement
not incorporated herein shall be binding on any of the Parties hereto. No waiver of any term,
condition or covenant of this Agreement shall be a continuing waiver thereof.
Section 8.5 Upon completion of the construction and improvements to the Omnitrans
Facility and any associated work pursuant to this Agreement, ownership and title to materials,
equipment, structures, and appurtenances that are installed within and/or upon property of which
SANBAG has ownership shall continue to be owned by SANBAG with title continuing to be
vested in SANBAG.
Section 8.6 Upon completion of the construction and improvements to the Omnitrans
Facility and any associated work pursuant to this Agreement, ownership and title to materials,
equipment, structures, and appurtenances that are installed within and/or upon property of which
City has ownership shall continue to be owned by the City with title continuing to be vested in
the City.
Section 8.7 Upon completion of the construction and improvements to the Omnitrans
Facility and any associated work pursuant to this Agreement, ownership and title to materials,
equipment, structures, and appurtenances that are installed within and/or upon property of which
Omnitrans has ownership shall continue to be owned by Omnitrans with title continuing to be
vested in Omnitrans.
Section 8.8 No Third Party Rights. Nothing contained within the provisions of this
Agreement is intended to create duties or obligations to or rights in third parties not a Party to
this Agreement or to affect the legal liability of any Party to the Agreement by imposing any
standard of care with respect to the maintenance of facilities different from the standards of care
imposed by law.
Section 8.9 Notice. All notices and correspondence, including invoices, between or
among the Parties to this Agreement shall be in writing and shall be deemed to have been given
when actually delivered, if given by hand delivery or transmitted by overnight courier service, or
if mailed, three (3) business days after being deposited in the United States mail, postage
prepaid, to the addresses noted below:
OMNITRANS
Attn: Rohan Kuruppu
Director of Planning & Development Services
1700 W. Fifth Street
San Bernardino, CA 92411-2499
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SANBAG
Attn: Mitchell Alderman
Director of Transit and Rail Programs
1170 W. Third St, 2nd Floor
San Bernardino, CA 92410-1715
CITY OF SAN BERNARDINO
Attn: Charles E. McNeely
City Manager
San Bernardino City Hall
300 North "D" Street, Sixth Floor
San Bernardino, California 92418
2011-292
SAN BERNARDINO ECONOMIC
DEVELOPMENT CORPORATION
Attn: Emil Marzullo
Interim Executive Director
201 North "E" Street, Suite 301
San Bernardino, California 92401
Any Party may change its address for receipt of written notice by notifying the other
Parties in writing of a new address for delivering notice to each such other Parties.
Section 8.10 This Agreement shall be binding on the successors and assigns of the
Parties, but may not be assigned by SANBAG without written approval from the City, the
Agency and Omnitrans.
Section 8.11 Consent. Whenever review, consent, or approval of any Party must be
given or where it can be withheld, that Party must not unreasonably review or unreasonably
withhold such consent or approval.
Section 8.12 Entire Agreement. This Agreement constitutes the entire understanding of
the Parties with respect to the subject matter hereof, and there are no other representations,
promises, warranties, covenants, or undertakings with respect thereto.
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In witness thereof, the Parties have caused this Agreement to be executed by their
respective officers as of the date indicated in the introductory paragraph of this Agreement.
OMNITRANS
By:
Milo Victoria
CEO/General Manager
Date: i 0 — r e -//
CITY OF SAN BERNARDINO
Date:
APPROVED AS TO FORM:
By —1
James F. Perim n, City At orney
C121179/15/11
SAN BERNARDINO ASSOCIATED
GOVERNMENTS
Date:
APPROV � TO FORM:
By: u -L
McCullough
AlvaradoSmith
SANBAG Counsel
CONCURRENCE:
Murphy-PerezL; ,
'r Contracts Manager
SAN BERNARDINO ECONOMIC
DEVELOPMENT CORPORATION
By:
Emil A. Marzu o
Interim Executive Director
Date:
APPROVED AS TO FORM:
By:
Timothy J. Sabo, Agency Counsel
EO
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LEGEND
r DSBPRP — DOWNTOWN SAN BERNARDINO PASSENGER RAIL PROJECT
RPRP — REDLANDS PASSENGER RAIL PROJECT
' SANBAG — SAN BERNARDINO ASSOCIATED GOVERNMENT AGENCY
RDA — SAN BERNARDINO REDEVELOPMENT AGENCY
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Attachment: Attachment -A (1319 : MOU SBTC Resolution)
DOWNTOWN SAN BERNARDINO
SANBAG PROJECTS
-- — 201
2011-292
Exhibit "B"
Omnitrans Facility Conceptual Plan
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Exhibit "C"
Omnitrans Facility Conceptual Plan
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Exhibit "D"
Omnitrans Facility Conceptual Plan
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Exhibit "E"
Project Schedule
San Bernardino Transit Center Project Timeline
Phase I
Activity
Duration
Dates
Begin ' 10/10
4-6
Conceptual Design & Site Plan
weeks
Oct -11
Rough Order of Magnitude Cost Estimate
Project Definition (Phasing Approach)
Lot Line Adjustment
Phase II
Activity
Duration
Begin November
2011
Preliminary Design Development &
Engineering
8 months
June -12
Phase III
Activity
Duration
Begin June 2012
4-6
Construction Documents Developed
months
Nov -12
Plan Check Review
Final Design
Phase IV
Activity
Duration
Begin December
2012
Construction Contract Bid
2 months
Jan -13
12
Construction
months
Jan -14
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