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HomeMy WebLinkAbout30- City Manager's Office ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Charles McNeely,City Manager Subject: Resolution authorizing a Bus Shelter Services Agreement with Omnitrans Dept: City Manager's Office to administer a passenger amenities program at current and fixture bus stops. Date: July 22, 2010 M/CC Meeting Date: 8/20/2010 Synopsis of Previous Council Action: 8/2/1999-Resolution 1999-189 was approved authorizing the execution of an agreement with Omnitrans to administer a passenger amenities program at current and future bus stops. Recommended Motion: Adopt Resolution. Signatur Contact person: Catherine Pritchett Phone: 5122 Supporting data attached: Staff report, Resolution& Ward: All Agreement FUNDING REQUIREMENTS: Amount: N/A Source: (Acct. No.) (Acct. Description) Finance: Council Notes: =;20/0 -z-3.;u5! 917�(� _ Agenda Item No. c3U New ,3Ackulo CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report Subject: Resolution authorizing a Bus Shelter Services Agreement with Omnitrans to administer a passenger amenities program at current and future bus stops. Background: In 1999, Omnitrans developed a Passenger Amenities Program for cities in the County of San Bernardino in an effort to construct and maintain bus shelters. Prior to that time, the City of San Bernardino had an agreement with an advertising company to maintain the shelters and the City received a small amount of revenue. However, there were constant complaints from business owners and residents regarding the lack of maintenance. The City of San Bernardino approved a ten year agreement to with Omnitrans to administer the Passenger Amenities Program in the City and the program has been very successful. New shelters were constructed and the contractor has done a good job in maintaining the strict maintenance standards set forth in the agreement. The program has vastly improved the appearance of bus stops throughout the City. The agreement has expired and Omnitrans is requesting that the City enter into a new agreement until December 2014 which is consistent with their opportunity to renew the agreement with the advertising company at the same time their "On Bus" advertising agreement expires. There may be interest at that time for a combination bus and bus shelter advertising agreement. Omnitrans does not anticipate building additional shelters during this period, but if they do, or if they reconstruct any of the current shelters, all work is subject to approval by the City. The agreement provides the City with two advertising panels for community service announcements. Omnitrans has always allowed additional space if needed when not in use. A total of eleven cities are participating in the in the program with Omnitrans. All of which have been participating since the program's inception. Financial Impact: None. Recommendation: Adopt Resolution. 1 RESOLUTION NO. 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A 4 BUS SHELTER AGREEMENT WITH OMNITRANS TO ADMINISTER A PASSENGER AMENITIES PROGRAM AT CURRENT AND FUTURE BUS STOPS. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 6 CITY OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. That the City Man ager of the City of San Bernardino is hereby authorized 8 and directed to execute on behalf of said City an Agreement with Omnitrans regarding the 9 10 maintenance and improvements at bus stop zones throughout the City, a copy of which is 11 attached hereto,marked Exhibit"A"and incorporated herein by reference as fully as though set 12 forth in length. 13 14 15 16 17 18 19 / 20 21 22 23 24 25 26 27 28 /// 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY 2 OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A 3 BUS SHELTER AGREEMENT WITH OMNITRANS TO ADMINISTER A PASSENGER AMENITIES PROGRAM AT CURRENT AND FUTURE BUS STOPS. 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 6 and Common Council of the City of San Bernardino at a 7 meeting thereof, held on the day of 2010, by the following 8 vote,to wit: 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 11 MARQUEZ 12 DESJARDINS 13 BRINKER 14 SHORETT 15 KELLEY 16 JOHNSON 17 18 MCCAMMACK 19 20 Rachel G. Clark, City Clerk 21 The foregoing resolution is hereby approved this day of 22 2010. 23 24 Patrick J. Morris, Mayor 25 City of San Bernardino Approved as to Form: 26 27 James F. Penman, City Attorney 28 2010-329 EXHIBIT"A" CITY OF SAN BERNARDINO BUS SHELTER SERVICES AGREEMENT 1. Parties and Date This Bus Shelter Services Agreement ("Agreement") is made and entered into this day of 2010 by and between the City of San Bernardino, a California municipal corporation organized under the laws of the State of California with its principal place of business at 300 N. D Street, San Bernardino, California 92418("City") and Omnitrans, a California Joint Powers Authority, with its principal place of business at 1700 West Fifth Street, San Bernardino, CA 92411 ("Omnitrans"). City and Omnitrans are also referred to herein individually as "Party" and collectively as "Parties". 2. Recitals 2.1 Purpose 2.1.1. Omnitrans is a provider of public mass transportation for the entire San Bernardino Valley, and has the professional ability to administer programs to construct and maintain bus shelters, and implement passenger amenities programs in cities. Omnitrans represents that it is experienced in providing such services to public clients and is generally familiar with the plans of City. 2.1.2. The Parties recognize that upgraded, well-maintained shelters at bus stop locations in the City benefit City residents, the City's business community and transit riders region wide. 2.1.3. Omnitrans has been providing maintenance at bus stops in the City of San Bernardino for the past ten years. 2.1.4. The Parties desire that by this Agreement Omnitrans shall have the exclusive right and responsibility to provide bus stop amenities and in exchange to receive all revenue from such amenities. 2.2. Program City desires to engage Omnitrans to continue administering a comprehensive passenger amenities program ("Program") at current and future bus stops throughout the City as set forth in this Agreement. 3. Terms 3.1. Scope of Services and Term 3.1.1. General Scope of Services. The City grants to Omnitrans the right to administer the Program at current and future bus stop zones throughout the City. Omnitrans may use a contractor or contractors to perform the construction and maintenance services in connection with the Program ("Services") at current and future bus stop zones within the City. 3.1.2. Bus Shelters. Omnitrans shall ensure that bus shelters ("Shelters or Amenity") in the City are sited and constructed in accordance with all applicable Americans with Disabilities Act ("ADA") RWUBWS 56tls9 1 2010-329 guidelines. Omnitrans will ensure that the contractor selected submits plans on all Shelters to the City and pays all fees and permits that may be required by the municipal code relative to amenity improvements at bus stop locations. The City at its sole discretion may require such information as it may deem necessary for consideration in issuing a permit. At minimum, plans when submitted shall consist of a plot plan, drawn to scale, showing the exact location of proposed shelters, improvements, and other existing improvements and topographic features. Examples of the shelter types to be used are more particularly described and pictured in Exhibit "A", attached hereto and hereby incorporated by reference. 3.1.3 Relocation. The City, in the exercise of its sole discretion may require the relocation or removal of any shelter, at any time, based on poor maintenance or appearance or if it is determined that the physical surroundings or use of the shelter poses a threat to the public health or safety. The shelter shall be removed within 10 business days of the request. On expiration of that time, City may remove the shelter as a nuisance and shall be entitled to receive reimbursement for the cost of the removal from Omnitrans. 3.1.4 Maintenance and Cleaning. Omnitrans shall wash all shelters within the City not less than once per month, clean the 15' radius of the shelters not less than once a week, and clean the benches not less than once per week. 3.1.5 Amenities - Waste Receptacles. Omnitrans will place and maintain trash receptacles at all existing and future amenity locations, empty waste receptacles at least once per week, clean at least once a month, and add trash receptacles as required by law or in Omnitrans' discretion. 3.1.6 Relocation or Removal. Omnitrans in its sole discretion and expense may remove and/or relocate any bus shelter for its operational convenience. Any new location shall be determined by the Parties in accordance with Section 3.1.9. 3.1.7. Advertising/Public Service Announcements. At a minimum, two (2) advertising panels within the City's boundaries shall be made available at no cost for the City's use for public service announcements. 3.1.8 Advertising Content. Omnitrans does not permit, under any circumstances, any Advertisements that violate any federal, state, county, or local regulation, law, code, or ordinance: is or can be construed to be false, misleading, deceptive, or clearly defamatory: violates or can be construed to violate any local community standards including without limitation obscenity or pornography; advocates any unlawful action; promotes alcohol, tobacco, or sexual products or services; or contains words or illustrations that RWU aSC1M759 2 2010-329 can be construed as a traffic control device or symbol. All Advertisements that contain content or have a presentation that is objectionable, as so deemed by Omnitrans will be removed from affected Amenities within 48 hours of notification to Omnitrans' contractor from Omnitrans, regardless of prior approvals, and at Omnitrans Contractor's sole expense. 3.1.9 Approval by City. Omnitrans and the City shall work cooperatively to identify bus shelter locations. No bus shelter may be placed without first obtaining all necessary approvals and permits by the City and any other person having ownership or jurisdiction of the bus shelter location. 3.1.10 Duty to Inform Public. Omnitrans shall make every practicable effort to inform the community of its responsibilities for maintenance of the shelters, and of the mechanisms in place for the public to report problems concerning the bus shelters. 3.1.11 Term. The term of this Agreement shall be from the date of execution of this Agreement through and until December 31, 2014, unless earlier terminated, as provided herein. 3.2 Responsibilities 3.2.1 Control and Payment of Subordinates; Independent Contractor. A) The Services shall be performed by Omnitrans or its selected Contractor(s). Contractor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Omnitrans' Contractor shall be an independent contractor and not an employee of Omnitrans or City. B) Omnitrans shall require Contractor, prior to commencement of work, to execute contracts for the benefit of the City and Omnitrans and indemnifications releasing the City from all costs, expenses and liabilities arising from Contractor's performance of the services. 3.2.2 Conformance to Applicable City Requirements. All work performed by Contractor in connection with this Agreement shall be subject to the City's ordinances. 3.2.3 City's Representative. The City hereby designates the City Manager or designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all proposed work under this Contract. Omnitrans shall not accept direction or orders from any person other than the City's Representative or his or her designee. 3.2.4 Omnitrans' Representative. Omnitrans hereby designates the Omnitrans Stops and Stations Supervisor, to act as its representative for the performance of this Agreement ("Omnitrans' Representative"). Omnitrans' Representative shall have the RVPUBVCSC�564]59 3 2010-329 authority to represent and act on behalf of Omnitrans for all purposes under this Agreement. Omnitrans' Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures for the satisfactory coordination of all portions of the Program and Services under this Agreement. 3.2.5 Coordination of Services. Omnitrans agrees to work with City staff in the performance of the Program and Services, and each party's representative shall be available to the other at reasonable times with reasonable notice. 3.3 Insurance 3.3.1 Minimum Requirements. Omnitrans shall require that the Contractor shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by Contractor, its subcontractors, its agents, representatives, employees or contractors. Omnitrans shall also require the Contractor to include contract provisions requiring that all subcontractors of the Contractor shall procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: 3.3.2 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. The City shall be named as an additional insured for all such coverage, and be provided with applicable endorsements as more particularly described below. 3.3.3 Minimum Limits of Insurance. Coverage shall be a least: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability: Worker's Compensation limits as required by the Labor Code of RVPURV(SC1569t59 4 • 2010-329 EXHIBIT "A" the State of California. Employer's Liability limits of$1,000,000 per accident for bodily injury or disease. The City shall be named as an additional insured for all such coverage, and be provided with applicable endorsements as more particularly described below. 3.3.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Omnitrans or its contractor shall provide endorsements on forms supplied or approved by the City, to add the following provisions to the insurance policies: 3.3.5 General Liability. The general liability policy shall be endorsed to state that: (1) the City, and Omnitrans, and their directors, officials, officers, employees, agents and volunteers shall be covered as additional insured with respect to the Work or operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the City and Omnitrans, and their directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor's or any subsequent contractor's scheduled underlying coverage. Any insurance or self-insurance maintained by the Omnitrans or the City, or their directors, officials, officers, employees, agents and volunteers shall be excess of Contractor's or any subsequent contractor's insurance and shall not be called upon to contribute with it in any way. 3.3.6 Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) Omnitrans, the City, and their directors, officials, officers, employees, agents and volunteers shall be covered as additional insured's with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Contractor; and (2) the insurance coverage shall be primary insurance as respects Omnitrans or the City, and their directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor scheduled underlying coverage. Any insurance or self-insurance maintained by Omnitrans or the City, and their directors, officials, officers, employees, agents and volunteers shall be excess of the Contractors insurance and shall not be called upon to contribute with it in any way. 3.3.7 Worker's Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by Contractor, or any other RVPMKS0564159 5 2010-329 contractor or subcontractor performing work pursuant to this Agreement. 3.3.8 All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to Omnitrans and the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to Omnitrans or the City, their directors, officials, officers, employees, agents and volunteers. 3.3.9 Separation of Insureds. No Special Limitations. All insurance required by this Section shall contain standard separation of insured's provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to Omnitrans or the City, its directors, officials, officers, employees, agents and volunteers. 3.3.10 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to Omnitrans and the City. The Contractor shall guarantee that the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects Omnitrans or the City, and their directors, officials, officers, employees, agents and volunteers. 3.3.11 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less A-VII, licensed to do business in California. 3.3.12 Certification of Coverage. The Contractor shall furnish to Omnitrans original certificates of insurance and endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf and shall be on forms satisfactory to Omnitrans. The City reserves the right to require complete copies of all required insurance policies, at any time. 3.3.13 Compensation. Omnitrans shall receive no monetary compensation or reimbursement from the City for the Program and the Services rendered under this Agreement. Except as provided elsewhere in this Agreement, the Program and Services are to be provided at no cost to the City. Omnitrans and the City acknowledge that all advertising revenue generated by the shelters shall be the property of Omnitrans and is sufficient consideration for the performance of Omnitrans' obligations hereunder. 0.WUB�CSC1561I59 6 i a 2010-329 3.4 General Provisions 3.4.1 Termination of Agreement. Either Party may commence the process for termination of the Agreement for cause, by written notice to the other. The written notice shall set forth the notice of intent to terminate, the grounds for termination, and shall set forth a cure period which shall be not less than 15 calendar days. The notice shall specify that if the cause is not cured within the cure period, or if the cause cannot be cured within the cure period, and if substantial efforts to cure have not been commenced, that the termination shall be effective on the 30th day following the date of the notice of termination. The party which creates the cause for termination shall be responsible to the terminating parties for the costs incurred as a result of the termination. Either Party may, by 30 day prior written notice to the other, terminate the whole or any part of this Agreement without cause. If this Agreement is terminated by the City without cause, City shall compensate Omnitrans for the advertising revenue that Omnitrans would have earned had the Agreement not been terminated early. City shall pay Omnitrans the average annual income received per year over the two years prior to the effective termination date for every year remaining in the contract term in a lump sum. Upon the payment of such compensation, Omnitrans shall remove, or City may require Omnitrans to remove, at Omnitrans' sole cost and expense within thirty (30) days from notification, all shelters installed by Omnitrans pursuant to this Agreement. Upon termination hereunder without cause by Omnitrans, Omnitrans shall remove, at Omnitrans' sole cost and expense within thirty (30) days from notification, all shelters installed by Omnitrans pursuant to this Agreement. 3.4.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective Parties at the following address, or at such other address as the respective Parties may provide in writing for this purpose: Omnitrans: Omnitrans 1700 West Fifth Street San Bernardino, CA 92411 Attention: Director of Marketing City: City of San Bernardino City Manager's Office 300 N. D Street. San Bernardino, CA 92418 Attention: City Manager RWUBWSM5W59 7 2010-329 Such notice shall be deemed made when personally delivered or when mailed, twenty-four (24)hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.4.3 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.4.4 Attorney's Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, neither Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorney's fees and any other costs of such action. 3.4.5 Indemnification. Omnitrans shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any actual or alleged acts, omissions or willful misconduct of Omnitrans, its officials, officers, employees, agents, contractors and subcontractors arising out of or in connection with the performance of, the Program, Services or this Agreement. City shall defend, indemnify and hold the Omnitrans, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any actual active negligence of City, its officials, officers, employees, agents, contractors and subcontractors of or in connection with its performance hereunder. 3.4.6 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County. 3.4.7 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.4.8 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties 3.4.9 Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or RWMKSC M759 8 2010-329 agreements. This Agreement may only be modified by a writing signed by both Parties 3.4.10 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not workdays. All references to Omnitrans include all personnel, employees, agents, and contractors of Omnitrans, except as otherwise specified in this Agreement. All references to City include its officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.4.11 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.4.12 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same of other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppels, or otherwise. 3.4.13 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.4.14 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.4.15 Prohibited Interest. Omnitrans maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Omnitrans, to solicit or secure this Agreement. Further, Omnitrans warrants that it has not q paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Omnitrans, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall I have the right to rescind this Agreement without liability. For the ti term of this Agreement, no member, officer or employee of City, { during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipate material benefit arising there from. { RWUBU(SQSWt59 9 2010-329 EXHIBIT "A" 3.4.16 Equal Opportunity Employment. Omnitrans represents that it is an equal opportunity employer and it shall not discriminate against any contractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non-discrimination shall include, but not be limited to, all activities relate to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Omnitrans shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.4.17 Authority to Enter Agreement. Omnitrans has all requisite power and authority to conduct its business and to execute, deliver, and perform this Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.4.18 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.4.19 Assignment. Omnitrans and City shall have the right to assign all or part of this Agreement upon consent of the other, in writing, which consent shall not be unreasonably withheld. /// RVPI WSL M759 10 • 2010-329 EXHIBIT"A" SIGNATURE PAGE TO BUS SHELTER SERVICES AGREEMENT CITY OF SAN BERNARDINO OMNITRANS A California Municipal Corporation A California Joint Powers Authority By: By: Charles, Mc Neely, Milo Victoria, City Manager CEO/General Manager Date: Date: ATTEST: Rachel Clark, City Clerk APPROVED AS TO FORM James Penman, City Attorney RWUB SMW759 11 2010-329 CITY OF SAN BERNARDINO BUS SHELTER SERVICES AGREEMENT 1. Parties and Date This Bus Shelter Services Agreement ("Agreement") is made and entered into this 20th day of September 2010 by and between the City of San Bernardino, a California municipal corporation organized under the laws of the State of California with its principal place of business at 300 N. D Street, San Bernardino, California 92418("City") and Omnitrans, a California Joint Powers Authority, with its principal place of business at 1700 West Fifth Street, San Bernardino, CA 92411 ("Omnitrans"). L City and Omnitrans are also referred to herein individually as "Party" and collectively as "Parties". 2. Recitals 2.1 Purpose 2,1.1, Omnitrans is a provider of public mass transportation for the entire San Bernardino Valley, and has the professional ability to administer programs to construct and maintain bus shelters, and implement passenger amenities programs in cities. Omnitrans represents that it is experienced in providing such services to public clients and is generally familiar with the plans of City. 2.1.2. The Parties recognize that upgraded, well-maintained shelters at bus stop locations in the City benefit City residents, the City's business community and transit riders region wide. 2.1.3. Omnitrans has been providing maintenance at bus stops in the City of San Bernardino for the past ten years. 2.1.4. The Parties desire that by this Agreement Omnitrans shall have the exclusive right and responsibility to provide bus stop amenities and in exchange to receive all revenue from such amenities. 2.2. Program City desires to engage Omnitrans to continue administering a comprehensive passenger amenities program ("Program") at current and future bus stops throughout the City as set forth in this Agreement. 3. Terms 3.1. Scope of Services and Term 3.1.1. General Scope of Services. The City grants to Omnitrans the right to administer the Program at current and future bus stop zones throughout the City. Omnitrans may use a contractor or contractors to perform the construction and maintenance services in connection with the Program ("Services") at current and future bus stop zones within the City. 3.1.2. Bus Shelters. Omnitrans shall ensure that bus shelters ("Shelters or Amenity") in the City are sited and constructed in accordance with all applicable Americans with Disabilities Act ("ADA") EXHIBIT"A" RVPU9IKSC SM759 1 2010-329 guidelines. Omnitrans will ensure that the contractor selected submits plans on all Shelters to the City and pays all fees and permits that may be required by the municipal code relative to amenity improvements at bus stop locations. The City at its sole discretion may require such information as it may deem necessary for consideration in issuing a permit. At minimum, plans when submitted shall consist of a plot plan, drawn to scale, showing the exact location of proposed shelters, improvements, and other existing improvements and topographic features. Examples of the shelter types to be used are more particularly described and pictured in Exhibit "A", attached hereto and hereby incorporated by reference. 3.1.3 Relocation. The City, in the exercise of its sole discretion may require the relocation or removal of any shelter, at any time, based on poor maintenance or appearance or if it is determined that the physical surroundings or use of the shelter poses a threat to the public health or safety. The shelter shall be removed within 10 business days of the request. On expiration of that time, City may remove the shelter as a nuisance and shall be entitled to receive reimbursement for the cost of the removal from Omnitrans. 3.1.4 Maintenance and Cleaning. Omnitrans shall wash all shelters within the City not less than once per month, clean the 15' radius of the shelters not less than once a week, and clean the benches not less than once per week. 3.1.5 Amenities - Waste Receptacles. Omnitrans will place and maintain trash receptacles at all existing and future amenity locations, empty waste receptacles at least once per week, clean at least once a month, and add trash receptacles as required by law or in Omnitrans' discretion. 3.1.6 Relocation or Removal. Omnitrans in its sole discretion and expense may remove and/or relocate any bus shelter for its operational convenience. Any new location shall be determined by the Parties in accordance with Section 3.1.9. 3.1.7. Advertising/Public Service Announcements. At a minimum, two (2) advertising panels within the City's boundaries shall be made available at no cost for the City's use for public service announcements. 3.1.8 Advertising Content. Omnitrans does not permit, under any circumstances, any Advertisements that violate any federal, state, county, or local regulation, law, code, or ordinance: is or can be construed to be false, misleading, deceptive, or clearly defamatory: violates or can be construed to violate any local community standards including without limitation obscenity or pornography; advocates any unlawful action; promotes alcohol, tobacco, or sexual products or services; or contains words or illustrations that RVPUBU(SC 0759 2 2010-329 can be construed as a traffic control device or symbol. All Advertisements that contain content or have a presentation that is objectionable, as so deemed by Omnitrans will be removed from affected Amenities within 48 hours of notification to Omnitrans' contractor from Omnitrans, regardless of prior approvals, and at Omnitrans Contractor's sole expense. 3.1.9 Approval by City. Omnitrans and the City shall work cooperatively to identify bus shelter locations. No bus shelter may be placed without first obtaining all necessary approvals and permits by the City and any other person having ownership or jurisdiction of the bus shelter location. 3.1.10 Duty to Inform Public. Omnitrans shall make every practicable effort to inform the community of its responsibilities for maintenance of the shelters, and of the mechanisms in place for the public to report problems concerning the bus shelters. 3.1.11 Term. The term of this Agreement shall be from the date of execution of this Agreement through and until December 31, 2014, unless earlier terminated, as provided herein. 3.2 Responsibilities 3.2.1 Control and Payment of Subordinates; Independent Contractor. A) The Services shall be performed by Omnitrans or its selected Contractor(s). Contractor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Omnitrans' Contractor shall be an independent contractor and not an employee of Omnitrans or City. B) Omnitrans shall require Contractor, prior to commencement of work, to execute contracts for the benefit of the City and Omnitrans and indemnifications releasing the City from all costs, expenses and liabilities arising from Contractor's performance of the services. 3.2.2 Conformance to Applicable City Requirements. All work performed by Contractor in connection with this Agreement shall be subject to the City's ordinances. 3.2.3 City's Representative. The City hereby designates the City Manager or designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all proposed work under this Contract. Omnitrans shall not accept direction or orders from any person other than the City's Representative or his or her designee. 3.2.4 Omnitrans' Representative. Omnitrans hereby designates the Omnitrans Stops and Stations Supervisor, to act as its representative for the performance of this Agreement ("Omnitrans' Representative"). Omnitrans' Representative shall have the RVPUO%K50.56759 3 2010-329 authority to represent and act on behalf of Omnitrans for all purposes under this Agreement. Omnitrans' Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures for the satisfactory coordination of all portions of the Program and Services under this Agreement. 3.2.5 Coordination of Services. Omnitrans agrees to work with City staff in the performance of the Program and Services, and each party's representative shall be available to the other at reasonable times with reasonable notice. 3.3 Insurance 3.3.1 Minimum Requirements. Omnitrans shall require that the Contractor shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by Contractor, its subcontractors, its agents, representatives, employees or contractors. Omnitrans shall also require the Contractor to include contract provisions requiring that all subcontractors of the Contractor shall procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: 3.3.2 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance I Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. The City shall be named as an additional insured for all such coverage, and be provided with applicable endorsements as more particularly described below. I 3.3.3 Minimum Limits of Insurance. Coverage shall be a least: (1) !j General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is j used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability: Worker's Compensation limits as required by the Labor Code of t 7 RWMWSM564759 4 f 2010-329 the State of California. Employer's Liability limits of$1,000,000 per accident for bodily injury or disease. The City shall be named as an additional insured for all such coverage, and be provided with applicable endorsements as more particularly described below. 3.3.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Omnitrans or its contractor shall provide endorsements on forms supplied or approved by the City, to add the following provisions to the insurance policies: 3.3.5 General Liability. The general liability policy shall be endorsed to state that: (1) the City, and Omnitrans, and their directors, officials, officers, employees, agents and volunteers shall be covered as additional insured with respect to the Work or operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work; and (2)the insurance coverage shall be primary insurance as respects the City and Omnitrans, and their directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor's or any subsequent contractor's scheduled underlying coverage. Any insurance or self-insurance maintained by the Omnitrans or the City, or their directors, officials, officers, employees, agents and volunteers shall be excess of Contractor's or any subsequent contractor's insurance and shall not be called upon to contribute with it in any way. 3.3.6 Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) Omnitrans, the City, and their directors, officials, officers, employees, agents and volunteers shall be covered as additional insured's with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Contractor; and (2) the insurance coverage shall be primary insurance as respects Omnitrans or the City, and their directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor scheduled underlying coverage. Any insurance or self-insurance maintained by Omnitrans or the City, and their directors, officials, officers, employees, agents and volunteers shall be excess of the Contractors insurance and shall not be called upon to contribute with it in any way. 3.3.7 Worker's Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by Contractor, or any other RVPMKSC\564759 5 2010-329 contractor or subcontractor performing work pursuant to this Agreement. 3.3.8 All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to Omnitrans and the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to Omnitrans or the City, their directors, officials, officers, i employees, agents and volunteers. 3.3.9 Separation of Insureds. No Special Limitations. All insurance required by this Section shall contain standard separation of insured's provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to Omnitrans or the City, its directors, officials, officers, employees, agents and volunteers. 3.3.10 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to Omnitrans and the City. The Contractor shall guarantee that the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects Omnitrans or the City, and their directors, officials, officers, employees,agents and volunteers. 3.3.11 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less A-VII, licensed to do business in California. 3.3.12 Certification of Coverage. The Contractor shall furnish to Omnitrans original certificates of insurance and endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf and shall be on forms satisfactory to Omnitrans. The City reserves the right to require complete copies of all required insurance policies, at any time. 3.3.13 Compensation. Omnitrans shall receive no monetary compensation or reimbursement from the City for the Program and the Services rendered under this Agreement. Except as provided elsewhere in this Agreement, the Program and Services are to be provided at no cost to the City. Omnitrans and the City acknowledge that all advertising revenue generated by the shelters shall be the property of Omnitrans and is sufficient consideration for the performance of Omnitrans' obligations hereunder. RvpUB SC 6059 6 2010-329 3.4 General Provisions 3.4.1 Termination of Agreement. Either Party may commence the process for termination of the Agreement for cause, by written notice to the other. The written notice shall set forth the notice of intent to terminate, the grounds for termination, and shall set forth a cure period which shall be not less than 15 calendar days. The notice shall specify that if the cause is not cured within the cure period, or if the cause cannot be cured within the cure period, and if substantial efforts to cure have not been commenced, that the termination shall be effective on the 30th day following the date of the notice of termination. The party which creates the cause for termination shall be responsible to the terminating parties for the costs incurred as a result of the termination. Either Party may, by 30 day prior written notice to the other, terminate the whole or any part of this Agreement without cause. If this Agreement is terminated by the City without cause, City shall compensate Omnitrans for the advertising revenue that Omnitrans would have earned had the Agreement not been terminated early. City shall pay Omnitrans the average annual income received per year over the two years prior to the effective termination date for every year remaining in the contract term in a lump sum. Upon the payment of such compensation, Omnitrans shall remove, or City may require Omnitrans to remove, at Omnitrans' sole cost and expense within thirty (30) days from notification, all shelters installed by Omnitrans pursuant to this Agreement. Upon termination hereunder without cause by Omnitrans, Omnitrans shall remove, at Omnitrans' sole cost and expense within thirty (30) days from notification, all shelters installed by Omnitrans pursuant to this Agreement. 3.4.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective Parties at the following address, or at such other address as the respective Parties may provide in writing for this purpose: Omnitrans: Omnitrans 1700 West Fifth Street San Bernardino, CA 92411 Attention: Director of Marketing City: City of San Bernardino City Manager's Office 300 N. D Street. San Bernardino, CA 92418 Attention: City Manager RWU SC\564759 7 2010-329 Such notice shall be deemed made when personally delivered or when mailed, twenty-four(24) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.4.3 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.4.4 Attorney's Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, neither Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorney's fees and any other costs of such action. 3.4.5 Indemnification. Omnitrans shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any actual or alleged acts, omissions or willful misconduct of Omnitrans, its officials, officers, employees, agents, contractors and subcontractors arising out of or in connection with the performance of, the Program, Services or this Agreement. City shall defend, indemnify and hold the Omnitrans, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any actual active negligence of City, its officials, officers, employees, agents, contractors and subcontractors of or in connection with its performance hereunder. 3.4.6 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County. 3.4.7 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.4.8 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties 3.4.9 Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or RWUBWSC1 M759 8 2010-329 agreements. This Agreement may only be modified by a writing signed by both Parties 3.4.10 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not workdays. All references to Omnitrans include all personnel, employees, agents, and contractors of Omnitrans, except as otherwise specified in this Agreement. All references to City include its officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.4.11 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.4.12 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same of other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppels, or otherwise. 3.4.13 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.4.14 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.4.15 Prohibited Interest. Omnitrans maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Omnitrans, to solicit or secure this Agreement. Further, Omnitrans warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Omnitrans, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipate material benefit arising there from. R%TMB SC,564759 9 2010-329 3.4.16 Equal Opportunity Employment. Omnitrans represents that it is an equal opportunity employer and it shall not discriminate against any contractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non-discrimination shall include, but not be limited to, all activities relate to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Omnitrans shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.4.17 Authority to Enter Agreement. Omnitrans has all requisite power and authority to conduct its business and to execute, deliver, and perform this Agreement. Each Parry warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.4.18 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.4.19 Assignment. Omnitrans and City shall have the right to assign all or part of this Agreement upon consent of the other, in writing, which consent shall not be unreasonably withheld. RVPIIBII(SC�569]59 10 2010-329 SIGNATURE PAGE TO BUS SHELTER SERVICES AGREEMENT CITY OF SAN BERNARDINO OMNITRANS A California Municipal Corporation A California Joint Powers Authority By: By: Char es, Mc Neely, Milo Victoria, City Manager CEO/General Manager Date: 7 ( Date: /vz7 !J ATTEST: Rachel Clark. City Clerk APPR AS TO FORM James Penman, City Attorney RVPUMKS�5759 11 .,,., lit r ii i rv �� uiWlia+WA.1i ..YrYL wai �w V