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HomeMy WebLinkAbout05.H- Community Development 5.H RESOLUTION (ID # 1319) DOC ID: 13191 CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract From: Margo Wheeler M/CC Meeting Date: 11/07/2011 Prepared by: Melissa Thurman, (909) 384- 5057 Dept: Community Development Ward(s): 1 Subject: 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. Financial Impact: The SBEDC will fund an amount not to exceed$2,000,000 for the design elements and construction activities of the proposed surface parking lot located on the property known as APN 0136-111-24. The SBEDC will also reimburse the City for all costs associated with plan check &inspection fees as well as all permit costs associated with the projects. Motion: That said resolution be adopted. Synopsis of Previous Council Action: June 21,2008:Mayor and Common Council approved a Memorandum of Understanding("MOU")by and among the City,the Redevelopment Agency,Omnitrans and the San Bernardino Associated Governments. The purpose of that MOU was to promote mass transit,the planning and funding of various transportation projects,and the construction of the San Bernardino Intermodal Transit Center. Background: In June 2008, Omnitrans acquired an approximately 5 acre piece of property located on the southwest corner of Rialto Avenue and E Street in Downtown San Bernardino (Attachment-A). The property was purchased with the intent of relocating all of the disparate bus stop locations throughout downtown into one single facility. This site,to become known as the San Bernardino Transit Center(SBTC), was also to be the location of one of the station locations for the sbX Bus Rapid Transit (BRT) project. The sbX BRT project, is a sixteen mile rapid transit corridor spanning from Palm Avenue and Kendall Drive in the north, then heading south through downtown on E Street,then east on Hospitality Lane, and finally south on Tippecanoe into Loma Linda with a southern terminus at the Jerry Pettis Veterans Hospital. In the Summer 2009, the San Bernardino Associated Governments (SANBAG) completed its Updated: 11/3/2011 by Mayra Ochiqui I Packet Pg. 131 5.H 1319 Alternative Analysis (AA) process for the Redlands Passenger Rail Project (RPRP). The AA process analyzed several scenarios that connected the historic Santa Fe Depot in San Bernardino along the former Pacific Electric rail line to downtown San Bernardino and terminating at the University of Redlands along a 10 mile rail line. In the 1990s, SANBAG purchased the right of- way to this rail line with an expectation that it would be developed as a passenger rail corridor in the future. The locally preferred alternative (LPA) selected by the SANBAG Board of Directors included a one mile extension of the current Metrolink service from the Santa Fe Depot to the proposed SBTC, marking the terminus of the San Bernardino and Inland Empire-Orange County (IEOC) Metrolink trains in downtown San Bernardino. The project, known as the Downtown San Bernardino Passenger Rail Project (DSBRP), is being funded entirely with locally funded, transit specific funds from Measure I. The LPA also included the SBTC as the terminus for the proposed Redlands Passenger Rail Project that would connect downtown San Bernardino to downtown Redlands, through Loma Linda,with a nine mile light rail configuration. Concurrently with the completion of the AA, Omnitrans, in partnership and collaboration with the City, its Economic Development Agency and SANBAG, began a conceptual visioning process for the SBTC in the Summer 2009. The process included an extensive search and selection of an urban design/architectural firm to assist the agencies in crafting a vision for the SBTC, now to be a true intermodal facility with local bus, bus rapid transit, commuter rail and light rail all converging in one central location in downtown San Bernardino. Through a year- long effort, a conceptual vision was developed that would serve as the foundation for the progression into preliminary architectural design and engineering. Upon the completion of the conceptual vision, the project was placed on hold to allow for the design and engineering of the DSBRP to progress far enough to have both the SBTC and DSBRP proceed at the same time, thereby creating synergy between the projects and achieving an economy of scale in the development of both SBTC and DSBRP. It was also mutually determined by the SANBAG and Omnitrans, that SANBAG would assume the role of lead agency for the completion of the SBTC. With the SBTC now ready to move forward into the architectural design, engineering and environmental review process, an Agreement between the multiple agencies involved in the development of the project is necessary and appropriate to clarify the roles, responsibilities and expectations of each agency. Current Issue• Over the past several months, City staff has been working with representatives from Omnitrans, SANBAG and the San Bernardino Economic Development Corporation on the development of an Agreement outlining the various roles and responsibilities of each agency towards the development of SBTC (Exhibit-A of Resolution). The primary component of the Agreement is the designation of SANBAG as the lead agency on the project and the inclusion of the various physical elements that will make up the SBTC. Some of these key elements include: 22 on-site Updated: 11/3/2011 by Mayra Ochiqui I Packet Pg. 132 5.H 1319 bus bays, on-site landscaping and irrigation, public restrooms, customer service and maintenance storage buildings,bike lockers, security office building and cameras, rail platforms, canopies and amenities for the rail component. Off-site improvements include street, curb, gutter and sidewalk improvements along E Street and Rialto Avenue, potential traffic signal modifications along Rialto Avenue, and street landscaping improvements consistent with the City's Downtown Streetscape Master Plan. Organization Commitments: City Commitments As part of the City's in-kind contribution to the Project, the following obligations are recommended for approval in the Agreement: 1. Appointment of an authorized representative, as designated by the City Manager, for the project. 2. Providing expedited reviews, issuance of permits and inspections at no cost,including but not limited to, plans for buildings, grading, street improvements, traffic signals; water quality management; architectural designs; and land use. Approval of such permits will be contingent upon meeting all applicable City codes and standards. 3. Formation 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 he expedited g ex p ted completion of the SBTC. 4. Providing design criteria for inclusion into the final architectural and engineering plans and specifications. San Bernardino Economic Development Corooration(SBEDC) Obligations/Responsibilities The following represent the list of obligations/commitments from the SBEDC towards the development of the SBTC: 1. Funding the design elements and construction activities of the proposed surface parking lot located south of the Metrolink platform on the property known as APN 0136-111-24. 2. Reimburse the City for all plan check and inspection fees and all permit costs associated with the Project. 3. Conveyance, by fee title, a portion of the property, known as APN 0136-111-24, to SANBAG as necessary to construct the Downtown San Bernardino Passenger Rail Project. On Wednesday, October 05, 2011 the Omnitrans Board of Directors and the SANBAG Board of Directors unanimously approved the attached Agreement. Updated: 11/3/2011 by Mayra Ochiqui I Packet Pg. 133 5.H 1310 Environmental Impact: The subject Agreement is exempt from California Environmental Quality CE A Section 15061(b)(3). However, the San Bernardino Transit Center development project will be required to obtain environmental clearance in compliance with CEQA and National Environmental Protection Agency(NEPA), separate from the Agreement. Pursuant to Section 2.9 of the Agreement, "SANBAG will 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." Fiscal Impact: The Mayor and Common Council, acting as the Community Development Commission, transferred real property assets and financial obligations to the San Bernardino Economic Development Corporation(SBEDC) on March 17,2011. The SBEDC will fund an amount not to exceed $2,000,000 for the design elements and construction activities of the proposed surface parking lot located on the property known as APN 0136-111-24. The SBEDC will also reimburse the City for all costs associated with plan check and inspection fees as well as all permit costs associated with the projects. There is no direct fiscal impact to the City. Recommendation: That the Mayor and Common Council adopt the attached Resolution. City Attorney Review: Approved as to Form. Supporting Documents: Attachment-A (PDF) Exhibit A of Resolution- SBTC Agreement (PDF) SBTC Agreement 9-22-11 -FINAL (PDF) SBTC Reso 11-2-11 (PDF) Updated: 11/3/2011 by Mayra Ochiqui I Packet 57. 1374 5.H.a C> -- 0 II J •. ,`, ;- aF- LL — � 1 � W y Z e _ �LL�J 1 lxi' N O O ¢*- I Z CD 771 � iIIIHIS ..A. °S z _ o Q I 1'----- -----=---, �CD O r�i r r. t1 --- - --- -- i z n I I 1 I I LL- I 1 1 11 I o I I o �- It F 11 i i I ( II 1 1 it l C 7 t w 1 r m 1r I7iI �'A II 7I 7I� �t a ri 1_r n 1 1 II j1 I It 1 I_ {) f, J 1 i I 1 II f 1 II pp Y Ildl I i r it I I g i 1 11 y}I do -i I L1J I v CD E Q z � < H Q f o 3 m cr- } Y O u i z >- �e .gip fi l K Z W Z W LD j•,' { Z W W Q e c W w > O H oL _ N O CD Z Q CC W a A ; W d .i O .J. H O O [L C-)V N W ¢ coQC= - w Z M w o 0 'l9 0'S O ('� N Z Z a In A38iS IIJii °S N QQ cr O Z W W ° ¢. Z z 3 Z Z Q W O w Q Q (/r [C N N a C, I I s �' W Q € ((( } _u ... CD CC Z Q r D K BE }=s Packet P 135 5.H.b SANBAG Contract No. 12117 SAN BERNARDINO TRANSIT CENTER(SBTC) PLANNING,DESIGN, CONSTRUCTION, OPERATING AND MAINTENANCE AGREEMENT BY AND AMONG E 2 w SAN BERNARDINO ASSOCIATED GOVERNMENTS 1170 West Third Street,2nd Floor San Bernardino, California92410-1715 U m CITY OF SAN BERNARDINO San Bernardino City Hall 300 North"D" Street, 6`h Floor M San Bernardino, California92418 , c a� E SAN BERNARDINO ECONOMIC DEVELOPMENT CORPORATION . 4 201 North"E" Street, 3rd Floor d... San Bernardino, California92401 m AND r 0 N N OMNITRANS o 1700 West Fifth Street Q San Bernardino, California92411-2499 k ui Y E U f6 w Q C 121 17 9/15/11 Packet Pg. 136 5.H.b SAN BERNARDINO TRANSIT CENTER(SBTC) PLANNING,DESIGN, CONSTRUCTION, OPERATING AND MAINTENANCE AGREEMENT This AGREEMENT, entered into as of _, 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 2 (the"Corporation"); 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"), co generally located at the southwest quadrant of Rialto Avenue and"E" Street in the City of San Bernardino as shown on Exhibit"A." 0 M r a.+ _ E d L a V M�M Ldp 0 0 O a X W w E a C12117 9/15/11 Packet Pg. 137 5.H.b 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 0 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 co U 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 o 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 M within the City; and a� 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 a), completion date of November 2013; and that the projects for the SBTC will be coordinated, Q } planned, designed, and constructed according to the conceptual plans and the estimated Project m Schedule all as further set forth in the attached Exhibits"A"through"E;" and cn 0 WHEREAS, all parties agree and understand that the Redlands Passenger Rail Project w ("RPRP")will be completed after the completion of the SBTC; and o N Q Of WHEREAS, the Parties mutually agree to cooperate and participate in the planning, — design, construction,operation, and maintenance of the SBTC; and Q WHEREAS, the Parties conducted the site selection study led by Omnitrans and based X upon the factors identified mutually determined that the southwest quadrant of Rialto Avenue `.". w and`B" Street is the best location for the Omnitrans Facility as a part of the SBTC; and E WHEREAS, SANBAG has identified SBTC as the preferred location for the terminus of o 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 C12117 9/15/11 Packet Pg. 138 S.H.b 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 Corporation, and Omnitrans do hereby mutually agree as follows: o ARTICLE I N GENERAL INFORMATION X U H Section 1.1 The Parties agree that the above referenced Recitals are true and correct in ca all respects and shall constitute a substantive part of this Agreement and are incorporated herein o by this reference. This Agreement supersedes any and all prior oral or written agreements with respect to the SBTC. M Section 1.2 The Parties shall form a Project Development Team("PDT") comprised of r 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 a completion of the construction of the SBTC. m ARTICLE II c SANBAG-RELATED COVENANTS AND RESPONSIBILITIES 0 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, o design, and construction, in addition to the operational issues related to joint use facilities among Q 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. x W 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 E the SBTC. Q 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 C12117 9/15/11 Packet Pg. 139 5.H.b : i z r http://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 o 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 W 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 co same, for the length of time that said legal challenge is pending, to include the expiration of o 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: M a. Twenty-two (22) on-site bus bays. b. Capacity for four (4) articulated buses (part of the total twenty-two (22) on-site a� 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. m e. Street conversion and landscaping consistent with City's Downtown Streetscape. cn Planning& Design project(attached hereto as Exhibit f. Onsite landscaping and irrigation 2 g. Solar canopies that provide an energy source for the site and other possible uses. o h. Public restrooms building. i. Signage and striping. o j. Site lighting. d k. Coach operator restrooms. 1. Coach operator break room . x M. Maintenance storage building. n. Parking for maintenance vehicles. o. Customer service building. E P. Electronic real time notification. q. Provision for future electric charging to include four(4)bus stalls. Q 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. C12117 9/15/11 Packet Pg. 140 5.H.b 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 0 0 SBTC. e. Street landscaping improvements on Rialto Avenue and `B" 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 0 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 `B" Street immediately north of Rialto Avenue with one (1) to be located on the west side of"E" Street and one (1) on co the east side. r C 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: a (a) The creation and implementation of building and engineering plans necessary to m provide all of the Omnitrans Facility elements, in addition to other requirements necessary to cn construct the SBTC, including but not limited to: buildings plans; engineering plans for precise c grading depicting the bus roadway, sidewalks and other hardscape surfaces, planters, and utilities; and landscape and irrigation. o N (b) Potential storm run-off detention basin or other infrastructure needed for o compliance with the County's MS4 permit for water quality requirements. d Section 2.8 Miscellaneous Studies and Investigations. x W a. Lot Line Adjustment. As real property ownership of the Omnitrans Facility and the Downtown San Bernardino Passenger Rail Project ("DSBPRP") shall be E shared between SANBAG and Omnitrans, SANBAG hereby agrees and o covenants to prepare and process through the City for approval a lot line Q 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 design/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. C121 17 9/15/11 Packet Pg. 141 5.H.b 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 o recommendations and requirements as shall be contained therein as mitigation measures or other requirements to be imposed upon the SBTC. a� Section 2.9 Environmental. SANBAG hereby agrees and covenants to act as lead U agency to prepare the necessary documentation for environmental clearance for the Omnitrans °0 Facility under the California Environmental Quality Act ("CEQA") and through the National o 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 M 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. a 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 umi administrative support required during the development of SBTC. SANBAG further agrees and c 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. o 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 o construction of the SBTC (the"Contractor"). a r k W C E t U r a.+ Q C12117 9/15/11 Packet Pg. 142 5.H.b 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, o 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 N the on-site and off-site elements that generally comprise the rail facility portion of the SBTC. W The following is a summary of those elements. U F m N a. Joint use buildings between rail and bus operations. o b. Track, signals,platforms, canopies and amenities. C. Storage and maintenance building(s) specifically for rail use. T M 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 E 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 a 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 0 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 o vicinity of transit projects of SANBAG within the City. a X w w _ Q) E U IQ a+ a C12117 9/15/11 Packet Pg. 143 3, 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. Approval of such permits will be contingent upon meeting c all applicable City codes and standards. 0 Section 3.3 The City hereby agrees and covenants to form an internal working group, X 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 Cn expedited completion of the SBTC. 0 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 M 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. E a� L Section 3.5 TOD Guidelines. The City hereby agrees and covenants to seek the Q comments and input from SANBAG and Omnitrans with regard to the conversion of the TOD m Guidelines into a General Plan Amendment and a Development Code Amendment as the same Cn shall be applicable to all private development to occur at or near the vicinity of transit projects of c SANBAG or Omnitrans within the City. ° w 0 ARTICLE IV �- CORPORATION RESPONSIBILITIES AND COVENANTS Q 0 Section 4.1 The Corporation hereby agrees and covenants to fund, in an amount not to x exceed $2,000,000 the design elements and construction activities of the proposed surface w parking lot located south of the Metrolink platform on the property known as APN 0136-111-24, 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 Corporation a owned baseball stadium to the south. Said property shall also be configured to allow for any Q property acquisition exchanges with adjacent land owners for the development of the Downtown San Bernardino Passenger Rail Project. Section 4.2 Corporation hereby agrees to reimburse City for all plan check and inspection fees and all permit costs associated with the Project as located solely within the City as provided in Section 3.2 of this Agreement. C12117 9/15/11 Packet Pg. 144 Section 4.3 The Corporation 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. 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) o 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 co 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 o 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. M M 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. Q Section 5.3 Omnitrans hereby agrees and covenants to prepare written specifications vmi to be provided to the PDT and SANBAG regarding the general space requirements of Omnitrans o 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 o during the preliminary design phase of the Omnitrans Facility design development. 0 Section 5.4 Omnitrans hereby agrees and covenants to appoint the Omnitrans Director Q of Planning & Development Services or his or her designee as its authorized representative regarding the development of the Omnitrans Facility. x w 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 s construction of the Omnitrans Facility. U w Q 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. C12117 9/15/11 Packet Pg. 145 5.H.b 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. 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. c 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 0: 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 Cn construction for the SBTC and each other joint use facility. 0 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 M Certificate of Occupancy, together constituting the "Final Acceptance," Omnitrans will provide all equipment and staff necessary to operate the Omnitrans Facility. E d Section 5.10 Omnitrans hereby agrees and covenants that upon Final Acceptan ce, a� Omnitrans will begin transit operations on the next available service/schedule change date, Q provided SANBAG, using its best efforts, provides an accurate date of occupancy at least ninety m (90) days prior to the next available service/schedule change date. cn 0 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/documents/16-Master.pdf, o cn 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 o development of the Omnitrans Facility, all of which shall be submitted to the FTA on a quarterly Q 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 X regulations, "Buy America Requirements,"49 C.F.R. Part 661, and any amendments thereto. ``� w c aD Section 5.12 Omnitrans hereby agrees and covenants to pay all invoices as received E from SANBAG, if any should be submitted by SANBAG on or before the 15th calendar day of w 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 C12117 9/15/11 Packet Pg. 146 5.H.b 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. 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 0 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 a� Agreement. � U N Section 6.2 Mutual Indemnification. The Parties agree that each Party shall Cn responsible for its own actions, and the actions of its officers, employees, agents, and volunteers o 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, 6i expense, fine, penalty, claim, demand, judgment, loss, injury and/or liability of any kind or M 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' Q 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 Cn misconduct of the indemnified Party, its officers, employees, agents, or volunteers. This is a c 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 o and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that Q 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 a 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 x be restricted to the terms or limitations of its self-insurance coverage or to any insurance ``� proceeds, if any,received. E s ARTICLE VII DEFAULT AND REMEDIES Q 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 C 121 17 9/15/11 Packet Pg. 147 ' payment or deposit is due following the expiration of any applicable grace period set forth in the applicable document; (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: E 0 (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; U H (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 o 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 M pursue (in the reasonable judgment of the non-defaulting Party) such corrective measures as may M 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 a) 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 e such event of default shall be a Default hereunder; CO Cn (c) If the defaulting Party shall fail to institute an action necessary to cure any event o 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 o corrective action as it deems appropriate; and 0 (d) All notices of an event of default and all Defaults hereunder shall be provided by Q 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 X to subsequently provide notice in the required manner nor shall such failure be considered as a w waiver of any rights of any party pursuant to this Agreement. Notices shall be given to the 0) defaulting Party and to all other Parties by the non-defaulting Party for perfection of the delivery E of notices pursuant to this Section 7.2. a 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 C12117 9/15/11 Packet Pg. 148 to collect the payments required to be made by the defaulting Party then due and thereafter to become due; and (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 IF 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 0: 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 M other Party or Parties, as applicable, its costs of suit and reasonable attorneys' fees. The costs, r salary and expenses of the City Attorney and members of his office in enforcing the Agreement m on behalf of the City or of the Corporation shall be considered as "attorneys' fees" for the purposes of this Section. , a ARTICLE VIII MISCELLANEOUS c 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 o SANBAG, including submission of all required reports, unless earlier terminated pursuant to the V provisions herein. o 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 x administrative overhead assessment, applied in accordance with the State of California's ``� w standard accounting procedures. E Section 8.3 Any termination of operation or maintenance to the Omnitrans Facility o shall require FTA approval prior to such termination. Should termination be necessary, the d 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. C12117 9/15/11 Packet Pg. 149 5.H.b (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. 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, o condition or covenant of this Agreement shall be a continuing waiver thereof. 0 N Section 8.5 Upon completion of the construction and improvements to the Omnitrans Q� 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 CO SANBAG has ownership shall continue to be owned by SANBAG with title continuing to be o vested in SANBAG. 0 Section 8.6 Upon completion of the construction and improvements to the Omnitrans CO 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 CO Facility and any associated work pursuant to this Agreement, ownership and title to materials, U)i 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. 0 N Section 8.8 No Third Part Rights. Nothing contained within the provisions of this o 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 x imposed by law. w Section 8.9 Notice. All notices and correspondence, including invoices, between or s 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 Q if mailed, three (3) business days after being deposited in the United States mail, postage prepaid, to the addresses noted below: C12117 9/15/11 Packet Pg. 150 5.H.b i OMNITRANS SANBAG Attn: Rohan Kuruppu Attn: Mitchell Alderman Director of Planning&Development Services Director of Transit and Rail Programs 1700 W. Fifth Street 1170 W. Third St, 2nd Floor San Bernardino, CA 92411-2499 San Bernardino, CA 92410-1715 SAN BERNARDINO ECONOMIC CITY OF SAN BERNARDINO DEVELOPMENT CORPORATION Attn: Charles E. McNeely Attn: Emil Marzullo City Manager Interim Executive Director o San Bernardino City Hall 201 North"E" Street, Suite 301 2 300 North"D" Street, Sixth Floor San Bernardino, California 92401 San Bernardino, California 92418 Ix U H OD N O 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. M r 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 E Corporation and Omnitrans. Section 8.11 Consent. Whenever review, consent, or approval of any Party must be c4i given or where it can be withheld, that Party must not unreasonably review or unreasonably m withhold such consent or approval. 0 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, Cn promises,warranties, covenants, or undertakings with respect thereto. 0 d X w c E Q C12117 9/15/11 Packet Pg. 151 S.H.b 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 SAN BERNARDINO ASSOCIATED GOVERNMENTS By: By Milo Victoria Larry McCallon CEO/General Manager President c r Date: Date: o d U APPROVED AS TO FORM: APPROVED AS TO FORM: m Cn M By: By: 0 Rahsaan Tilford Keith E. McCullough a; Omnitrans Counsel Alvardo Smith SANBAG Counsel as E d as L CITY OF SAN BERNARDINO SAN BERNARDINO ECONOMIC a DEVELOPMENT CORPORATION m W By: By: 0 Patrick J. Morris Emil A. Marzullo 0 Mayor Chief Executive Officer 0 Date: Date: a :E APPROVED AS TO FORM: APPROVED AS TO FORM: W By: By: d James F. Penman, City Attorney Timothy J. Sabo, Corporation Counsel E 0 w a C12117 9/15/11 Packet Pg. 152 5.H.b Exhibit"A" San Bernardino Transit Center ,.� k Aw° X! R * afXF 4" a na ter:f' Ml f, » I -u{ t ' e � E, BUS FACILITY O (0 S As Tp NEHL ar # - r a a4 DSBPRP (SANBAG) PARKING LDT (RDA3 } M a LEGEND E owa SAN EN AIL PASSENGER RAIL Pwea ( If REDLANDS PASSENGER RAIL PROJECT DOWNTOWN SAN BERNARDINO O � L $At" SAM BERNAR:00 ASSDCUreC ameRNUENT AGENCY r A 5ANBAG PROJECTS � RDA -SAN BERNARD ND REDEVELOPIENT AGENCY a I . v m _ O U) AN O a X w r M E w w a C12117 9/15/11 Packet Pg. 153 S.H.b Exhibit`B" Omnitrans Facility Conceptual Plan S 0 H r CO /f ' O r E Q _ f � c m �.i x � O t • i O w X fi W A A S a1 E Z V �F+ Q C12117 9/15/11 Lpacket Pg. 154 Exhibit"C" Omnitrans Facility Conceptual Plan c 0 w. 0 d U � h m N O as M r C O E d O Q U N m C O N d O Q t X W C O E t U co Q C12117 9/15/11 Lpacket Pg. 155 5.H.b i Exhibit"D" Omnitrans Facility Conceptual Plan 0 0 a� m U) D O M I r a+ C d E L U CO c O UJ G1 O a s X w c m E s R w Q C121 17 9/15/11 Packet Pg. 156 Exhibit"E" Project Schedule San Bernardino Transit Center Project Timeline Phase I Activity Duration Dates Begin 10115 Conceptual Design & Site Plan 4-6 weeks Dec-11 0 Rough Order of Magnitude Cost Estimate Project Definition (Phasing Approach) c Lot Line Adjustment U H Phase II vmi Activity Duration p Begin December 2011 Preliminary Design Development & Engineering 8 months July-12 = as E Phase III d L Activitv Duration Q Begin July 2012 4-6 00 Construction Documents Developed months Nov-12 Plan Check Review ° Final Design c Phase IV o Activity Duration Q Begin December .E 2012 X w Construction Contract Bid 2 months Jan-13 Construction 12 months Jan-14 t U t6 w Q C12117 9/15/11 Packet Pg. 157 5.H.c SANBAG Contract No. 12117 SAN BERNARDINO_TRANSIT CENTER(SBTC) PLANNING, DESIGN, CONSTRUCTION, OPERATING AND MAINTENANCE AGREEMENT BY AND AMONG 0 2 0 SAN BERNARDINO ASSOCIATED GOVERNMENTS a 1170 West Third Street,2°a Floor v San Bernardino, California92410-1715 m 0 CITY OF SAN BERNARDINO San Bernardino City Hall 300 North"D" Street, 6th Floor San Bernardino, California92418 c 0 SAN BERNARDINO ECONOMIC DEVELOPMENT CORPORATION 201 North"E" Street, 3ra Floor � San Bernardino, California92401 Z r AND N N C OMNITRANS E 1700 West Fifth Street San Bernardino, California924 1 1-2499 Q U F- m <n w c m E t Q C12117 9/15/11 Packet Pg. 158 5.H.c AOWW' SAN BERNARDINO TRANSIT CENTER(SBTC) PLANNING, DESIGN, CONSTRUCTION, OPERATING AND MAINTENANCE AGREEMENT This AGREEMENT, entered into as of _, 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"Corporation"); and Omnitrans, a Joint Powers Authority established pursuant to Chapter 5 0 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code a ("Omnitrans"), collectively referred to herein as the"Parties,"regarding the planning, design, construction, operation, and maintenance of the San Bernardino Transit Center("SBTC"), m generally located at the southwest quadrant of Rialto Avenue and`B" Street in the City of San U) Bernardino as shown on Exhibit"A." o c) M r r C O T) J Q Z N N C d E N d L Q U H m c a� E U R a+ .r Q C12117 9/15,1 1 Packet Pg. 159 I 5.H.c 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 2 amendments to the City General Plan and Development Code to codify such TOD Guidelines o 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 m 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 0 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 c 0 WHEREAS, SANBAG shall be the lead agency to deliver the above referenced projects .N 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 z Schedule all as further set forth in the attached Exhibits "A"through`B;"and LL WHEREAS, all parties agree and understand that the Redlands Passenger Rail Project ("RPRP")will be completed after the completion of the SBTC; and C� w c WHEREAS, the Parties mutually agree to cooperate and participate in the planning, E design, construction, operation, and maintenance of the SBTC; and a 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 U) and`B" Street is the best location for the Omnitrans Facility as a part of the SBTC; and c WHEREAS, SANBAG has identified SBTC as the preferred location for the terminus of Metrolink and the Redlands Passenger Rail service; and w a 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 C12117 9/15/11 Packet Pg. 160 S.H.c 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 Corporation, and Omnitrans do hereby = mutually agree as follows: o w 0 ARTICLE I GENERAL INFORMATION m Section 1.1 The Parties agree that the above referenced Recitals are true and correct in Cn all respects and shall constitute a substantive part of this Agreement and are incorporated herein 0 by this reference. This Agreement supersedes any and all prior oral or written agreements with respect to the SBTC. a) M r 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 o routinely meet, at a minimum on a quarterly basis, to review and approve the design documents y in addition to the review and approval of other SBTC tasks and other engineering and y architectural work product as may be prepared by or on behalf of the Parties through the completion of the construction of the SBTC. Z U_ ARTICLE II SANBAG-RELATED COVENANTS AND RESPONSIBILITIES N N 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, E 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, Q train/bus crew building, and site maintenance as determined by the Parties. m V) 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. E v m Section 2.3 SANBAG hereby agrees and covenants to contract with an experienced a 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 C121 1 7 9/15/11 Packet Pg. 161 5.H.c htlp://www.fta.dot.gov/documents/16-Master 12df, 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 o 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 m 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 0 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. o 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). J d. Two (2) vehicular points of egress/ingress from Rialto Avenue. Q z e. Street conversion and landscaping consistent with City's Downtown Streetscape. LL Planning&Design project(attached hereto as Exhibit f. Onsite landscaping and irrigation N g. Solar canopies that provide an energy source for the site and other possible uses. o h. Public restrooms building. 1. Signage and striping. E j. Site lighting. k. Coach operator restrooms. a 1. Coach operator break room . U m. Maintenance storage building. m U) 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. .2 r. Security office building and cameras. Q 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. C12117 9/15/11 Packet Pg. 162 5.H.c 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. `B" 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`B" Street as needed for SBTC operations. d. One (1) potential vehicular traffic signal on Rialto Avenue at the exit of the SBTC. 3 e. Street landscaping improvements on Rialto Avenue and "E" Street in accordance a) with the requirements of the City's "Downtown Streetscape Masterplan." f. Potential storm run-off detention basin or other facility needed for compliance m with Municipal Separate Storm Sewer Systems ("MS4") permit to support on-site improvements. 0 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 M Avenue with one (1) to be located on the west side of`B" Street and one (1) on the east side. r 0 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: (a) The creation and implementation of building and engineering plans necessary to Z provide all of the Omnitrans Facility elements, in addition to other requirements necessary to LL 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 N utilities; and landscape and irrigation. T r_ (b) Potential storm run-off detention basin or other infrastructure needed for E compliance with the County's MS4 permit for water quality requirements. a a Section 2.8 Miscellaneous Studies and Investigations. m 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 a needs of the Omnitrans Facility and the DSBPRP, contingent upon further investigations to be conducted during the preliminary design/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. C12117 9/15/11 Packet Pg. 163 J 5.H.c 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 .2 recommendations and requirements as shall be contained therein as mitigation o measures or other requirements to be imposed upon the SBTC. U Section 2.9 Environmental. SANBAG hereby agrees and covenants to act as lead m agency to prepare the necessary documentation for environmental clearance for the Omnitrans Facility under the California Environmental Quality Act ("CEQA") and through the National 0 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 r Facility shall have one single final environmental compliance document to be prepared as a joint o NEPA/CEQA document in the form determined by SANBAG within the requirements of T NEPA/CEQA. J Section 2.10 SANBAG hereby agrees and covenants to provide project administration, z construction management, and public relations, in coordination with the Parties, and the related LL administrative support required during the development of SBTC. SANBAG further agrees and r covenants to submit to Omnitrans quarterly reports that document the status of the progress of N 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 E construction of the SBTC (the"Contractor"). a Q U CO c a> E t U f6 w a+ Q C12117 9/15/11 Packet Pg. 164 5.H.c 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, 2 and grade crossings and the addition of one passing siding; four stations; a maintenance facility; o and other related infrastructure components. The conceptual plan marked Exhibit `B" describes the on-site and off-site elements that generally comprise the rail facility portion of the SBTC. U The following is a summary of those elements. m Cn a. Joint use buildings between rail and bus operations. 0 b. Track, signals,platforms, canopies and amenities. C. Storage and maintenance building(s) specifically for rail use. M r_ 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 Q submitted in accordance with Section 5.12. Section 2.13 TOD Guidelines. SANBAG hereby agrees and covenants to cooperate N 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 E vicinity of transit projects of SANBAG within the City. a U H 00 U) c m E U f� Q C121179/15/11 Packet Pg. 165 5.H.c 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. Approval of such permits will be contingent upon meeting all applicable City codes and standards. o N as 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 m Development and Police Departments, to partner with and assist the Parties in facilitating the `" expedited completion of the SBTC. 0 Section 3.4 The City hereby agrees and covenants to provide City required design M 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 o Facility. y a� 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 z Guidelines into a General Plan Amendment and a Development Code Amendment as the same LL shall be applicable to all private development to occur at or near the vicinity of transit projects of SANBAG or Omnitrans within the City. N N T C N ARTICLE IV E CORPORATION RESPONSIBILITIES AND COVENANTS a Section 4.1 The Corporation 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 0136-111-24, 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 Corporation owned baseball stadium to the south. Said property shall also be configured to allow for any Q property acquisition exchanges with adjacent land owners for the development of the Downtown San Bernardino Passenger Rail Project. Section 4.2 Corporation hereby agrees to reimburse City for all plan check and inspection fees and all permit costs associated with the Project as located solely within the City as provided in Section 3.2 of this Agreement. c12117 9/15/11 Packet Pg. 166 5.H.c Section 4.3 The Corporation 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. 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) 2 a$5,554,609 apportionment approved by pursuant to 49 U.S.C. § 5307 ("Section 5307") in grant o 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 m equal to $6,943,261 will be used directly for the Omnitrans Facility portion of the SBTC. C" Omnitrans shall reimburse SANBAG the total of all such documented costs incurred by 0 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. M r Section 5.2 As of the date of this Agreement the Parties recognize that not all funding r for the Omnitrans Facility has been secured in dollar amounts in excess of the $6,943,261 dollar o 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. Z 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 r and further identifying the other amenities that are required to meet the operational needs of N 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. E 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 Q regarding the development of the Omnitrans Facility. m m 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. U Section 5.6 TOD Guidelines. Omnitrans hereby agrees and covenants to cooperate Q 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. C 121 17 9/15/11 Packet Pg. 167 5.H.c 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. 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 E improvements °- final , ,.le fi n to „ r f r all a eets of the Onin;*r°^° 1 aeili Ylocated on Omnitrans property o upon completion of construction. U 5.8.1 The Parties hereby acknowledge and agree that a separate m agreement concerning the operation and management ("O&M") of the SBTC and inclusive of Cn other joint use facilities that may be developed for the benefit and use of the Parties during the 0 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. M 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 o Certificate of Occupancy, together constituting the "Final Acceptance," Omnitrans will provide all equipment and staff necessary to operate the Omnitrans Facility. Q Section 5.10 Omnitrans hereby agrees and covenants that upon Final Acceptance, z 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. N 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/documents/16-Master.pdf, E 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 Q 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 U) 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. U Section 5.12 Omnitrans hereby agrees and covenants to pay all invoices as received y from SANBAG, if any should be submitted by SANBAG on or before the 15th calendar day of Q 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; C12117 9/15/11 Packet Pg. 168 5.H.c 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 VIL• 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. ARTICLE VI SELF-INSURANCE AND MUTUAL INDEMNIFICATION E Section 6.1. Self-Insured Public Entities. Each Party hereby represents and covenants 2 that they are an authorized self-insured public entity for purposes of professional liability, o 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 v protect against its potential liabilities arising out of the performance of this Project and m Agreement. O 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 M 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 o 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 _J officers, employees, agents, or volunteers in the performance of this Project or thisAgteemeatthis z Agreement, including without limitation the payment of all consequential damages and M 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 N negligence or willful misconduct of the indemnified Party, its officers, employees, agents, or a� 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 E 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, Q 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, W 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 a DEFAULT AND REMEDIES Section 7.1 Default. Each of the following shall constitute an "event of default" hereunder: 0121179/15/11 Packet Pg. 169 (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; (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; c Section 7.2 Opportunity to Cure. Except as provided below, no event of default under 3 Section 7.1 hereof shall constitute a"Default'hereunder until: o y (a) The non-defaulting Party shall give written notice to the defaulting Party of such U event of default specifying the particular facts and circumstances that cause and constitute an m event of default to be deemed to be a Default hereunder; 0 (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 M 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 o be required to cure such event of default; provided, however, that such event of default must be T remedied within one hundred eighty (180) days after the occurrence of the event of default that W 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- z defaulting Party) appropriate corrective action to completion as required by this Section, then such event of default shall be a Default hereunder; N N (c) If the defaulting Party shall fail to institute an action necessary to cure any event c) 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 E corrective action as it deems appropriate; and a (d) All notices of an event of default and all Defaults hereunder shall be provided by m a non-defaulting Party to the defaulting Party at the addresses set forth in Section 8.9 hereof. N 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 E waiver of any rights of any party pursuant to this Agreement. Notices shall be given to the U defaulting Party and to all other Parties by the non-defaulting Party for perfection of the delivery Q 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: C12117 9/15/11 Packet Pg. 170 5.H.c (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 (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. o Section 7.4 No Remedy Exclusive. No remedy herein conferred upon or reserved to 0 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 N 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- o time and as often as may be deemed expedient. T M 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 o 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 Corporation shall be considered as "attorneys' fees" for the purposes of this Section. z u_ ARTICLE VIII MISCELLANEOUS N M 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 E SANBAG, including submission of all required reports, unless earlier terminated pursuant to the provisions herein. Q U H Section 8.2 All costs referred to throughout this Agreement shall include all direct and U) 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 E standard accounting procedures. w Section 8.3 Any termination of operation or maintenance to the Omnitrans Facility a 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. (W C12117 9/15/11 _ Packet Pg. 171 f E. tii= 5 Fi (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. 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 o 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. o 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, CO equipment, structures, and appurtenances that are installed within and/or upon property of which Cn SANBAG has ownership shall continue to be owned by SANBAG with title continuing to be o vested in SANBAG. a) M 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 o City has ownership shall continue to be owned by the City with title continuing to be vested in the City. JON J Section 8.7 Upon completion of the construction and improvements to the Omnitrans Q z Facility and any associated work pursuant to this Agreement, ownership and title to materials, LL 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 N vested in Omnitrans. T T a� Section 8.8 No Third Party Rights. Nothing contained within the provisions of this E 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 a standard of care with respect to the maintenance of facilities different from the standards of care m imposed by law. U) u c Section 8.9 Notice. All notices and correspondence, including invoices, between or E 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 4 if mailed, three (3) business days after being deposited in the United States mail, postage prepaid,to the addresses noted below: C12117 9/15/11 Packet Pg. 172 5.H•c OMNITRANS SANBAG Attn: Rohan Kuruppu Attn: Mitchell Alderman Director of Planning& Development Services Director of Transit and Rail Programs 1700 W. Fifth Street 1170 W. Third St, 2nd Floor San Bernardino, CA 92411-2499 San Bernardino, CA 92410-1715 SAN BERNARDINO ECONOMIC CITY OF SAN BERNARDINO DEVELOPMENT CORPORATION Attn: Charles E. McNeely Attn: Emil Marzullo c City Manager Chief Executive Officer San Bernardino City Hall 201 North"E" Street, Suite 301 N 300 North"D" Street, Sixth Floor San Bernardino, California 92401 San Bernardino, California 92418 m O Any Party may change its address for receipt of written notice by notifying the other Q; Parties in writing of a new address for delivering notice to each such other Parties. r 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 2 T) Corporation and Omnitrans. Section 8.11 Consent. Whenever review, consent, or approval of any Party must be a given or where it can be withheld, that Party must not unreasonably review or unreasonably ? withhold such consent or approval. u Section 8.12 Entire Agreement. This Agreement constitutes the entire understanding of N the Parties with respect to the subject matter hereof, and there are no other representations, promises,warranties, covenants, or undertakings with respect thereto. E as a� a� Q U H m N c a> E t v R Q C 121 17 9/15/11 Packet Pg. 173 5.H.c In witness thereof, the Parties have caused this Agreement to be executed by their 'mow respective officers as of the date indicated in the introductory paragraph of this Agreement. OMNITRANS SAN BERNARDINO ASSOCIATED GOVERNMENTS By: By Milo Victoria Larry McCallon CEO/General Manager President °- 0 Date: Date: U H m APPROVED AS TO FORM: APPROVED AS TO FORM: 0 By: By: Rahsaan Tilford Keith E. McCullough co Omnitrans Counsel Alvardo Smith SANBAG Counsel 0 a� CITY OF SAN BERNARDINO SAN BERNARDINO ECONOMIC DEVELOPMENT CORPORATION Q Z U- T r By: By: N Patrick J. Morris Emil A. Marzullo Mayor Chief Executive Officer E a� Date: Date: a APPROVED AS TO FORM: APPROVED AS TO FORM: m m By: By: James F. Penman, City Attorney Timothy J. Sabo, Corporation Counsel v ca w Q C121 1 7 9/15/11 Packet Pg. 174 5.H.c Exhibit "A" San Bernardino Transit Center a m 'WR u ��s �1 wr huQ ,urn 3 9 sit 8: `fz Y L 1 BUS FACILITY m �t (DMNITRANS) r N LC$AN' E DEPT T TO 8 u AM2 's U LLI � +w h4 r�' k M CSBPRP ( NB 1G) � �4� n FUTURE RPRP _ (SA BAG ) v PARKIND LOT , (RDA) 4 At i: LA r 11 -,__..., ��, �. .N O LEGEND DAP"-DOWMIN Sw BFMARDIND PASSENGER PAIL axaEM DOWNTOWN SAN BERNARD I NO 3„ RPRP -REDLANDS PASSENGER RAIL PROJECT {. a ` VAN SANBAG-SAN BERMAROINO AMIATEG GOVERNMENT AGENCY ti SANBAG PROJECTS ROA -SAN BERNARDINO REDEVELOPMENT AGENCY J v 07-21-2011 z M N N C d E d d L Q V M� W N d E s R r w Q C12117 9/15/11 Packet Pg. 175 Exhibit"B" Omnitrans Facility Conceptual Plan o o N d U F- m U) D 0 as ! ' o .y d u J i r N " A N E M CD P ' U H A rr A (n CD E V �F+ Q C12117 9/15/11 Packet Pg. 176I Exhibit"C" Omnitrans Facility Conceptual Plan _ 0 2 0 N d F� U H O y T M T T _ N N� IL J Q Z T T N N Q1 _ d E G1 d L a m Cn E JON r w a C 12 1 1 7 9/15,111 Packet Pg. 177 5.H.c Exhibit"D" AOW Omnitrans Facility Conceptual Plan F O 3 O N d U F- N O rn M r n r C O J Z I , r N N a) C d E N d L Q U F- m N r c m t v a 0 C12117 9/15/11 Packet Pg. 178 Exhibit"E" Project Schedule San Bernardino Transit Center Project Timeline Phase I Activi1y Duration Dates Begin 10/15 0 Conceptual Design& Site Plan 4-6 weeks Dec-11 Rough Order of Magnitude Cost Estimate ° Project Definition(Phasing Approach) Lot Line Adjustment m Cn Phase II 0 Activit y Duration Begin December 2011 r Preliminary Design Development & Engineering 8 months July-12 c .2 Phase III u Activity Duration Begin July 2012 z 4-6 Construction Documents Developed months Nov-12 Plan Check Review N Final Design m E m Phase IV ° L Activity Duration a' Begin December Q U 2012 m N Construction Contract Bid 2 months Jan-13 Construction 12 months Jan-14 s w Q C12117 9/15/11 Packet Pg. 179 I RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SA 3 BERNARDINO APPROVING AN AGREEMENT BY AND AMONG OMNITRANS,THE 4 SAN BERNARDINO ASSOCIATED GOVERNMENTS, THE CITY OF SA BERNARDINO, AND THE SAN BERNARDINO ECONOMIC DEVELOPMEN 5 CORPORATION REGARDING THE PLANNING, DESIGN, CONSTRUCTION OPERATION, AND MAINTENANCE OF THE SAN BERNARDINO TRANSI 6 CENTER c 7 2 8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY o as 9 OF SAN BERNARDINO AS FOLLOWS: v m 10 m D 11 SECTION 1. That the Mayor and Common Council of the City of San Bernardin 12 hereby approve the Agreement between Omnitrans, the San Bernardino Associate M r 13 Governments, the City of San Bernardino, and the San Bernardino Economic Developmen M 14 Corporation to plan, design, construct, operate, and maintain the San Bernardino Transit Cente c 15 generally located on the 5-acre piece of property on the southwest corner of Rialto Avenue an u 16 "E" Street in Downtown San Bernardino. N 17 T O 18 SECTION 2. That the City Manager is hereby authorized and directed to execute on 19 behalf of the City said Agreement, a copy of which is attached hereto and incorporated herein as; m co 20 Exhibit"A". c as 21 E t v 22 SECTION 3. The authorization to execute the above-referenced Agreement is rescindeda 23 if the parties fail to execute it within sixty(60) days of the passage of this Resolution. 24 HI 25 26 27 28 1 Packet Pg. 180 S,H.d RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO 1 APPROVING AN AGREEMENT BY AND AMONG OMNITRANS,THE SAN BERNARDINO ASSOCIATED GOVERNMENTS,THE CITY OF SAN BERNARDINO,AND THE SAN BERNARDINO 2 ECONOMIC DEVELOPMENT CORPORATION REGARDING THE PLANNING,DESIGN, CONSTRUCTION,OPERATION,AND MAINTENANCE OF THE SAN BERNARDINO TRANSIT 3 CENTER 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayo 5 6 and Common Council of the City of San Bernardino at a meeting thereof,held o 7 the day of , 2011 by the following vote,to wit: o r 8 Council Members: AYES NAYS ABSTAIN ABSENT 0 a� 9 U MARQUEZ m 10 cn 11 JENKINS p 12 BRINKER M r 13 SHORETT M 14 0 KELLEY 15 JOHNSON 16 17 MCCAMMACK 0 18 V 19 Rachel G. Clark, City Clerk m W 20 a� 21 E The foregoing resolution is hereby approved this day of 12011. �a 22 +' a 23 Patrick J. Morris, Mayor 24 City of San Bernardino 25 Approved as to form: JAMES F. PENMAN 26 City Attorney 27 By: 28 -2 Packet Pg. 181'