AGREEMENT BETWEEN OMNITRANS AND CITY OF POMONA
FOR THE OPERATIONS AND MAINTENANCE OF WEST VALLEY CONNECTOR BUS RAPID TRANSIT PROJECT This AGREEMENT FOR THE OPERATIONS AND MAINTENANCE OF THE WEST VALLEY CONNECTOR BUS RAPID TRANSIT PROJECT (“Agreement”) by and between OMNITRANS, a joint powers authority duly organized and existing under Section 6500 et seq. of the Government Code, and the City of Pomona (“City”) is made and entered into as of _____________________ (“Effective Date”). Omnitrans and City are sometimes individually referred to as a “Party” and collectively as the “Parties.” Recitals
The San Bernardino County Transportation Authority (“SBCTA”) is in the process of completing work to implement the West Valley Connector (“WVC”) Project, as described in Exhibit A, to deliver Bus Rapid Transit (“BRT”) operated by Omnitrans and serving the City (“Project”).
Omnitrans entered into a Cooperative Agreement with SBCTA dated December 14, 2017, that establishes Omnitrans’ satisfactory continuing control over Project Property as that term is defined herein.
City entered into a Cooperative Agreement No. 20-1002420 with SBCTA dated Sept. 8, 2020, which describes their mutual responsibilities to develop the Project, and in that Cooperative Agreement, City committed to enter into an agreement with Omnitrans to set forth the mutual commitments to operate and maintain certain facilities and improvements installed as part of the Project.
The Parties now wish to enter into an operations and maintenance agreement as required by the Cooperative Agreement to establish their respective rights and obligations in connection with the ongoing operations and maintenance of the Project Property.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants hereinafter contained and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
Definitions
Capitalized terms not otherwise defined in this Agreement will have the following meanings:
“City streets,” “City rights-of-way” and public rights-of-way” mean those existing streets and rights-of-way that are either held by the City in fee or pursuant to an easement, but do not include Station Areas. “Incidental Use” has the same meaning as set forth in FTA Circular 5010-1E - Revised July 16, 2018 (available at http://www.dot.gov). “Project Property” means all improvements including equipment and structures installed as part of the Project and the real property rights acquired for the Project, including without limitation all Stations. “Satisfactory Continuing Control” means the legal assurance that FTA-funded Project Property will remain available to be used for its originally authorized purpose throughout its useful life or until FTA-approved disposition of such property. “SBCTA” means the San Bernardino County Transportation Authority. “Stations” or “Station Areas” means the improvements as described in the City-approved design plans and specifications and as generally depicted in Exhibits B-1, Depiction of Typical Station Areas and B-2 Depiction of Pomona Transit Center Station. “TSP” means transit signal priority, which is a system in which equipment on the vehicle requests permission to proceed through the intersection according to certain programmed parameters, by communicating with equipment in the traffic signal control cabinet that grants the authority for the vehicle to proceed by controlling the traffic signal according to certain programmed parameters. The purpose of TSP is to ensure delivery of bus rapid transit service with quicker, consistent run times as anticipated for this Project.
Use and Control of Project Property
General
Omnitrans shall have the right to exercise Satisfactory Continuing Control over the Project Property in accordance with the requirements and grant conditions of the Federal Transit Administration (FTA).
Period of Control
Omnitrans’ right to exercise control over the Project Property shall continue as long as the Project Property is needed in the judgment of Omnitrans for the appropriate Project purposes for the duration of the useful life of the Project Property, as required by the FTA, and for such time period as is necessary to dispose of the Project Property under FTA requirements and procedures.
Use
The Parties agree to use the Project Property for appropriate Project purposes to support public transportation activities. City agrees to notify Omnitrans no less than 30 days prior to withdrawal of any Project Property from Project use.
Maintenance
City agrees to maintain the Project Property identified in, and in accordance with, the terms of Section 4, and Omnitrans agrees to maintain the Project Property identified in, and in accordance with, the terms of Section 3. The Parties agree that the performance of this Agreement will ensure that the entirety of the Project Property within the City boundary will be maintained in good operating order, in compliance with any applicable Federal laws and regulations, and in accordance with applicable Federal directives, except to the extent that FTA determines otherwise in writing.
Records
Notwithstanding Section 7 of this Agreement, City agrees to keep records demonstrating that the Project Property continues to be maintained in good working order for its useful life or until disposition of the Project Property, and to submit to Omnitrans upon request such information as may be required by the FTA to assure compliance with FTA’s Master Agreement.
Incidental Use
Any Incidental Use of Project Property will not exceed that permitted under applicable Federal laws or regulations in accordance with applicable Federal directives. Any incidental use must be approved by Omnitrans in writing in advance.
Transfer or Lease of Property
City shall not transfer any obligation pertaining to the Project Property that would affect Omnitrans’ continuing interest in the Project Property, nor impair such interest without the prior written consent of Omnitrans. Any transfer or lease must be approved in writing, in advance, by Omnitrans.
Obligations of Omnitrans
Maintenance of Station Areas
Omnitrans shall be responsible for the repair, maintenance and operation of Project Property within each Station Area and new structures and equipment located in the Station Area, as depicted in Exhibits B-1 and B-2, including Project Station amenities such as the digital kiosk and related pylon, emergency telephone, and equipment pad, identified as the responsibility of Omnitrans in the Checklist of Maintenance Responsibilities, Exhibit C. At the Station Areas, Omnitrans shall provide trash disposal, cleaning/pressure washing, graffiti removal, and replacement of amenities, all according to the standards determined by Omnitrans in its sole discretion. Omnitrans shall maintain the two on-route pantograph chargers being installed at the Pomona Transit Center; provided that the transformer being installed will be maintained by Omnitrans or a third party.
Security Systems
As part of the Project, Omnitrans will install, operate, and maintain a security system at the Stations. The security system may include surveillance cameras and emergency telephones. Omnitrans will reasonably cooperate with the City in a manner consistent with Omnitrans’ procedures and applicable law to allow City’s police department to access video recordings and other product of the security system.
System Service
Omnitrans reserves its right to modify or adjust schedules of transit bus service as necessary to provide optimal, efficient and cost-effective service to its patrons.
Digital Kiosk Advertising
Omnitrans shall be permitted to include digital advertising space within the digital kiosk screens as part of its bus stop advertising program, wherein Omnitrans shall be allowed to collect all revenues from such advertising to use for the cost of maintaining station amenities. All advertising content will comply with the Omnitrans System Commercial Advertising Policy and Content Guidelines, as may be updated from time to time, and of which a copy has been provided to City and is available on file with Omnitrans or online at Procurement and Doing Business | Omnitrans.
Obligations of the City
Grant of Access to Right-of-Way, Station Location
City hereby grants to Omnitrans the rights of continuous use of Station Areas and right of way for purposes of providing transit service, as well as access to transit service by transit users. Such right of use shall also include, but not be limited to, use of Project Stations. In addition, City hereby grants Omnitrans a non-exclusive right to operate, maintain, repair and replace two Electric Bus Charging Stations and two bus bays including two overhead inverted pantograph chargers and related electrical equipment at the Pomona Transit Center, as depicted in Exhibit B-2, in accordance with the City-approved design plans. The rights of use granted herein shall commence upon execution of this Agreement and continue thereafter for the useful life of the Project Property. If either Party believes the bus bay at the Pomona Transit Center, as depicted in Exhibit B-1, needs significant repair or replacement, the Parties will meet and determine an appropriate action plan.
Landscaping and Irrigation
If applicable, City shall either (1) repair and maintain at its sole cost and expense or (2) ensure that the private property owner maintains, any new landscaping installed as part of the Project and located on City-owned property or within City public rights of way, provided that the new landscaping was installed pursuant to the City-approved landscape plan for the Project. If applicable, City shall be solely responsible for all costs associated with the repair and maintenance of landscaping and irrigation, including but not limited to, payment of water usage charges, electrical charges and landscaping servicing fees.
Dedicated Right-of-Way
City shall repair and maintain, at its sole cost and expense, all elements installed as part of the Project and located within City streets and City right-of-way as described in Exhibit C. City shall maintain, as part of the right-of-way, curbs, sidewalks, and medians adjoining the Station Areas. City shall maintain trash capture devices being installed in drainage inlets within right-of-way and the bus pull-in being installed at the Pomona Transit Center.
Lighting in Public Right of Way
City shall operate, repair, and maintain all City street lighting installed or relocated as part of the Project, pursuant to Exhibit C. City shall be solely responsible for all costs associated with the maintenance of street lighting, including but not limited to, payment of all electrical usage charges.
Signage in Public Right of Way
City shall repair and maintain all City signage located on, upon, inside or within City-owned property or any City public right-of-way along the Project Property installed as part of the City-approved plans and specifications, as described in Exhibit C. City will be solely responsible for all costs associated with the repair and maintenance of said signage.
Police Services
City shall provide routine patrol and police services to provide for the security of the Stations. City shall provide answering and dispatching services for the emergency phones installed at the Stations. City will reasonably cooperate with Omnitrans in a manner consistent with City’s procedures and applicable law concerning ongoing security related issues including accessing surveillance video and coordinating with Omnitrans security services.
Transit Signal Priority
On-Vehicle Equipment
Omnitrans will own, operate, repair, maintain and replace, if necessary, at its cost, all TSP equipment installed on Omnitrans-owned buses as part of the Project.
Traffic Signal
City will own, operate, repair, maintain and replace, if necessary, all traffic control signals (except as stated in Section 5.3) located at City public rights-of-way intersections or crossings along the Project. City will be solely responsible for all costs associated with the operation, repair and maintenance of traffic control signals (except as stated in Section 5.3), and will be responsible for payment of all electrical usage charges for the traffic control signal and the TSP equipment located inside the signal cabinet.
TSP Equipment in Traffic Signal
The vendor selected to provide the TSP system for the Project (“TSP Vendor”) by SBCTA will install the equipment into the City’s traffic control signal cabinet, traffic signal pole, mast arm and cables, and thereafter the TSP Vendor, Omnitrans or its contractor will maintain that TSP equipment. Omnitrans will determine whether and how to repair, maintain or replace, if necessary, the TSP equipment installed in the traffic control signal. If Omnitrans determines that the TSP equipment must be replaced, the City will have an opportunity to review and comment on the design and specifications of the new equipment prior to the replacement of the TSP equipment by Omnitrans.
City will allow the TSP Vendor, Omnitrans or its contractor access to the traffic control signal in order to install, inspect, operate, maintain, repair or replace the TSP equipment in the traffic control signal. City may impose reasonable conditions for access to the traffic control signal, such as providing reasonable advance notice; having an inspector present; and requiring proof of insurance.
Start-Up and Commissioning
Omnitrans and City agree to reasonably cooperate with SBCTA and its contractor to complete the start-up, testing and acceptance of the TSP system, to coordinate programming of the TSP system and to make any adjustments to the TSP system, including, but not limited to, adjustment of preemption parameters, to ensure delivery of bus rapid transit service as anticipated for this Project.
Updating Signal Parameters and Performance Monitoring
Omnitrans and City agree that the purpose of TSP is to ensure delivery of bus rapid transit service with quicker, consistent run times as anticipated for this Project; to that end, Omnitrans intends to monitor the overall end-to-end run time of the transit service. The Parties will reasonably cooperate with each other to (1) develop a mutually agreeable method of capturing, sharing, and reviewing data collected by the TSP system, (2) conduct periodic performance monitoring of the TSP system, and (3) adjust preemption parameters as necessary to ensure delivery of bus rapid transit service as anticipated for this Project. The TSP Vendor will provide regular inspection and audits of the TSP equipment, and City will allow the TSP Vendor access to the traffic control signal cabinet, if necessary, in order to complete these audits. City will allow Omnitrans or its contractor to modify or revise the TSP parameters by remotely accessing the TSP equipment located in the traffic control signal cabinet as reasonably necessary to enhance or improve the timing of bus rapid transit service. Neither Party will make any changes to the TSP system that may affect the traffic control signal without both Parties first agreeing on such change in advance in writing. City will promptly notify Omnitrans of any changes to any intersection along the corridor that may impact traffic or transit service run times. If necessary, a reasonable notification process will be agreed upon between staff for the City and Omnitrans.
Mutual Indemnification
To the furthest extent permitted by law, City shall defend, indemnify and hold Omnitrans, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including, without limitation, the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses, to the extent that they arise out of, pertain to, or are incidental to (1) the negligence, recklessness or willful misconduct of City, its officials, officers, employees, subcontractors, consultants or agents in the performance of the Project or this Agreement, or (2) City’s breach of this Agreement. City’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by City, Omnitrans, or their respective officials, officers, employees, agents, or volunteers.
To the furthest extent permitted by law, Omnitrans shall defend, indemnify and hold City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including, without limitation, the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses, to the extent that they arise out of, pertain to, or are incidental to (1) the negligence, recklessness or willful misconduct of Omnitrans, its officials, officers, employees, subcontractors, consultants or agents in the performance of the Project or this Agreement, or (2) Omnitrans’ breach of this Agreement. Omnitrans’ obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Omnitrans, City, or their respective officials, officers, employees, agents, or volunteers.
Audit and Inspection of Records
The Parties agree that their respective records, which shall include, but not be limited to, Project files, accounting records, written policies and procedures, public bid documents, engineering and construction contracts, consultant contracts and payment history, contract files (including plans and specifications), original estimates, correspondence, change order files (including documentation covering negotiated settlements), invoices, and any other supporting evidence relied upon to substantiate charges related to the Project (collectively referred to as the “Records”), shall be open to inspection and subject to audit and reproduction by each other Party’s auditors or other authorized representatives at all reasonable times, in order for the other Party to enforce their rights under this Agreement and permit evaluation of expended costs. The cost of said audit shall be at the expense of the Party requesting the audit.
Each Party, through any of its duly authorized representatives, upon providing at least forty-eight (48) hours prior written notice, shall be afforded access to all Records of the other Party related to the Project during normal business hours and shall be allowed to interview any employee, consultant or contractor of the other, subject to reasonable limitations, throughout the term of this Agreement and for three (3) years thereafter, or for any longer period required by law.
To the furthest extent permitted by law, information contained in the Records or other matters discovered during such audits or inspections shall not be disclosed to third parties except as reasonably necessary to enforce (1) this Agreement or (2) the Parties respective rights and obligations whether relating to this Agreement or otherwise.
All Records pertaining to the Project must be retained by the Parties for three (3) years following termination or expiration of this Agreement, or for any longer period required by law.
Exhibits
The following exhibits are hereby incorporated into and made a part of this Agreement wherever referred to as though set forth at length, except where certain portions of specific exhibits have been deleted or superseded by sections of this Agreement:
Exhibit “A” Project Description
Exhibit “B-1” Depiction of Typical Station Area
Exhibit “B-2” Depiction of Pomona Transit Center Station Area Exhibit “C” Checklist of Maintenance Responsibilities
Dispute Resolution
Negotiation
In the event of a dispute, claim or controversy arising from or in relation to this Agreement, the Parties agree to undertake good-faith attempts to resolve said dispute, claim or controversy within seven (7) calendar days after the receipt of written notice from the Party alleging that a minor dispute, claim or controversy exists. The Parties additionally agree to cooperate with the other Party in scheduling negotiation sessions. However, if said matter is not resolved within 30 calendar days after conducting the first negotiation session, either Party may then request that the matter be submitted for mediation pursuant to Section 9.2 below.
Mediation
If either Party, in accordance with Section 9.1 above, requests that an unresolved dispute, claim or controversy be submitted to mediation, the Parties agree to undertake good-faith efforts to settle the dispute through non-binding mediation administered by JAMS pursuant to its Comprehensive Mediation Rules and Procedures.
Legal Action
Compliance with the provisions of this section shall be a condition precedent to any legal action, provided that nothing herein shall limit the Parties’ right to terminate this Agreement pursuant to the other terms of this Agreement.
Fees and Costs
The Parties agree to share the fees of the mediator, and all costs associated with mediation; provided, however, each Party shall be responsible for its own legal costs, including attorneys’ fees and the costs associated with experts.
Default
Notice of Default
Failure or delay by either Party to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided, however, that if the Party who is otherwise claimed to be in default by the other Party commences to cure, correct or remedy the alleged default within thirty (30) calendar days after receipt of written notice specifying such default and thereafter diligently undertakes efforts to complete such cure, correction or remedy, such Party shall not be deemed to be in default hereunder for such time and if the default is cured. The Party claiming that a default has occurred shall give written notice of default to the defaulting Party, specifying the deficiencies causing the alleged default. Delay in giving such written notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the non-defaulting Party shall have no right to exercise any remedy for a default hereunder without first delivering the written default notice as specified herein.
Failure to Cure
In the event that the defaulting Party fails to commence to cure, correct or remedy a default within thirty (30) calendar days following receipt of written notice, or thereafter fails to diligently complete such cure, correction or remedy, a breach of this Agreement shall be deemed to have occurred. In the event of a breach, the non-defaulting Party may terminate this Agreement through a written notice of termination. Disputes regarding the facts that may have given rise to termination under this section shall be subject to the dispute resolution provisions provided above, but the right to terminate for such reason shall not be subject to review.
Termination of Funding
Omnitrans shall retain its right to terminate this Agreement and the Project at any time due to the lack of adequate federal or state funding or the lack of or denial of any required approval from any federal, state, or local agency. Disputes regarding the facts that may have given rise to termination under this Section or the right of Omnitrans to terminate pursuant to this Section shall not be subject to the dispute resolution provisions provided in this Agreement.
Changed Conditions
In the event that either Party to this Agreement, despite its best efforts, cannot, for reasons beyond the control of the Party, timely satisfy a contingency or condition required by this Agreement, that Party shall provide immediate written notification to the other Party within seven (7) calendar days after the occurrence of the event specifying the reasons for which the requirements cannot be met. As soon as practically possible thereafter, the Parties shall meet and confer in good faith to consider the changed conditions and the potentially adverse impacts upon this Agreement. Both Parties shall work in good faith to resolve the problem and if this meet-and-confer process results in a recommended restructured form of this Agreement, representatives of both Parties will recommend such changes as necessary to the individual, Party or governing body authorized to amend this Agreement. Any approval of such restructured Agreement shall be subject to the amendment provisions provided below.
Force Majeure
In addition to specific provisions of this Agreement, performance by either Party hereunder shall not be deemed to be in default, or considered to be a default, where delays or defaults are due to the force majeure events of war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes or lack of transportation, weather-caused delays, inability to secure necessary labor, materials or tools, delays of any contractors, subcontractor or supplier, which are not attributable to the fault of the Party claiming an extension of time to prepare or acts or failure to act of any public or governmental agency or entity not a Party to this Agreement. Delays encountered by either Party in obtaining governmental actions, reviews, approvals, and permits shall not be deemed to be an enforced delay or a force majeure event pursuant to this Section. An extension of time for any such force majeure event shall be for the period of the enforced delay and shall commence to run from the date of occurrence of the delay; provided, however, that the Party that claims the existence of the delay has first provided the other Party with written notice of the occurrence of the delay within seven (7) calendar days after the commencement of such occurrence or delay. A Party’s failure to timely or adequately submit such notice of the occurrence of the delay pursuant to this Section is an absolute waiver and release of that Party’s right to prosecute or otherwise assert such delay in the future by means of litigation, arbitration, mediation, government claims, or otherwise.
Attorneys’ Fees
Except as otherwise expressly provided herein or by applicable law, each Party shall bear its own costs and fees in connection with any action or proceeding that arises out of or relates to this Agreement.
Laws and Regulations
Each Party shall keep itself fully informed of and satisfy its obligations pursuant to this Agreement in compliance with all local, state, and federal laws, rules and regulations in any manner affecting the performance of this Agreement or any work related to the Project, including all Cal/OSHA requirements, and shall give all notices required by law. All landscape maintenance, irrigation and pressure washing of Project Property by either the City or Omnitrans will be completed in compliance with stormwater management best practices under the existing Storm Water Pollution Prevention Plans and permits in accordance with California's General Permit for Storm Water Discharges Associated with Industrial Activities.
Approvals
Approvals required of Omnitrans or the City, or any officers, agents, or employees of either Party, shall not be unreasonably withheld and approval or disapproval shall be given within a reasonable time.
Miscellaneous Terms
Notices, Demands and Communications Between the Parties Notices, demands, and communications between Omnitrans and City shall be deemed sufficiently given if: (i) dispatched by registered or certified mail or delivery service with tracking; or (ii) personal delivery with signature or receipt; or (iii) by electronic transmittal (e-mail), with receipt. Such written notices, demands, and communications may be sent in the same manner to such other addresses as either Party may from time to time designate by written notice to the other Party.
All notices, demands and communications shall be sent, as follows:
City of Pomona
Attn: Rene Guerrero, Public Works Director
505 S. Garey Ave
Pomona, CA 91766
[email protected]
Omnitrans
Attn: Erin Rogers, CEO/General Manager
1700 W. Fifth St.
San Bernardino CA 92411
[email protected] (with a copy to [email protected])
Amendment
This Agreement may be amended at any time by the mutual consent of the Parties by an instrument in writing signed by both Parties.
Further Actions and Instruments
Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.
Counterparts
This Agreement may be signed in counterparts, each of which shall constitute an original.
Time is of the Essence
For each provision of this Agreement which states a specific amount of time within which the requirements thereof are to be satisfied, time shall be deemed of the essence. For each provision of this Agreement which does not state a specific amount of time within which the requirements thereof are to be satisfied, such requirements are to be satisfied within a reasonable time and such time shall be deemed of the essence.
Third Party Beneficiaries
This Agreement and the performance of Omnitrans’ and the City’s obligations hereunder are for the sole and exclusive benefit of Omnitrans and City. No person or entity who or which is not a signatory to this Agreement shall be deemed to be benefited or intended to be benefited by any provision hereof, and no such person or entity shall acquire any rights or causes of action against either Omnitrans or City hereunder resulting from Omnitrans’ or City performance or nonperformance of their respective obligations under this Agreement.
Governing Law
This Agreement shall be governed by the laws of the State of California without regard to conflicts of laws principles. This Agreement shall be deemed to have been made in the County of San Bernardino, California, regardless of the order of the signatures of the Parties affixed hereto. Any litigation or other legal proceedings which arise under or in connection with this Agreement shall be conducted in a federal or state court located within or for San Bernardino County, California. The Parties consent to the personal jurisdiction and venue in federal or state court located within or for the County of San Bernardino, California and hereby waive any defenses or objections thereto including defenses based on the doctrine of forum non conveniens.
Construction; References; Captions
Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not workdays. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
Waiver
No delay or omission in the exercise of any right or remedy of a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Either Parties’ consent or approval of any act by the other Party requiring its consent or approval shall not be deemed to waive or render unnecessary its consent to or approval of any subsequent act of the other Party. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
Rights and Remedies are Cumulative
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. All warranties and promises to indemnify shall survive the termination, abandonment, or completion of this Agreement.
Legal Counsel
Each Party acknowledges that: (i) it has read this Agreement; (ii) it has had the opportunity to have this Agreement explained to it by legal counsel of its choice; (iii) it is aware of the content and legal effect of this Agreement; and (iv) it is not relying on any representations made by the other Party or any of the employees, agents, representatives, or attorneys of the other Party, except as expressly set forth in this Agreement.
Severability
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder.
Binding Effect
The terms of this Agreement shall inure to the benefit of, and shall be binding upon, each of the Parties and their respective successors and assigns.
Authorized Representatives
The person or persons executing this Agreement on behalf of Omnitrans and the City warrants and represents that he/she has the authority to execute this Agreement on behalf of that Party and that he/she has the authority to bind that Party to the performance of its obligations hereunder.
Entire Agreement
This Agreement constitutes the entire and integrated agreement of Omnitrans and City with respect to the subject matter hereof and supersedes any and all prior and contemporaneous oral or written negotiations, representations or agreements. [SIGNATURES ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, this Agreement has been executed by the Parties hereto as of the day and year first written above.
OMNITRANS
By: ________________________
Name: ________________________
Title: ________________________
Date: ________________________
CITY OF POMONA
By: ________________________
Name: ________________________
Title: ________________________
Date: ________________________
APPROVED AS TO FORM:
By: ________________________
Name: ________________________
Title: ________________________
Date: ________________________
EXHIBIT A
PROJECT DESCRIPTION
The San Bernardino County Transportation Authority (SBCTA), in cooperation with the cities of Pomona, Montclair, Ontario, and Rancho Cucamonga, and Omnitrans, is constructing Phase 1 of the West Valley Connector BRT Project (“Project”). The Project is a 19-mile corridor from downtown Pomona to Victoria Gardens in Rancho Cucamonga located primarily along Holt Avenue/Boulevard and Foothill Boulevard in the counties of Los Angeles and San Bernardino, California. The Project proposes limited stops, providing speed and quality improvements to the public transit system within the corridor.
The Project includes approximately 3.5 miles of dedicated BRT lanes with center-running stations on Holt Boulevard in Ontario. In addition, Transit Signal Priority (TSP) are included. The BRT system will be operated by Omnitrans and scheduled for operation in 2025.
Project Alignment
In Pomona, the alignment starts from the Pomona Transit Center/Metrolink station (with a layover), along Holt Avenue and into the City of Montclair. The alignment runs through the entire City limits of Montclair along Holt Boulevard. In Ontario, the alignment continues on Holt Boulevard and then turns onto Vineyard Avenue and into Ontario International Airport (loop through Terminal Way), stopping at both terminals. From the airport, it heads north on Archibald Avenue to Inland Empire Boulevard and turns right to go east on Inland Empire Boulevard. On Inland Empire Boulevard, the alignment goes straight into Ontario Mills (loop through Mills Circle), and then heads north on Milliken Avenue into the City of Rancho Cucamonga. In Rancho Cucamonga, the alignment makes a loop into the Rancho Cucamonga Metrolink Station off Milliken Avenue and then continues up Milliken Avenue and turns east onto Foothill Boulevard. The alignment then turns north onto Day Creek Boulevard, and then terminates with a layover on Day Creek at Main Street at Victoria Gardens. The alignment makes a return route by continuing north on Day Creek Boulevard, turning west onto Church Street, then south onto Rochester Avenue, and then west back onto Foothill Boulevard, then down Milliken.
Project Stations
The BRT stations are located at 22 locations/major intersections and include five center platform stations, denoted below with an “*”.
City
Stations
Pomona
Pomona Regional Transit Center Station
Holt Ave/Garey Ave
Holt Ave/Towne Ave
Holt Ave/Clark Ave
Holt Ave/Indian Hill Blvd
Montclair
Holt Blvd/Ramona Ave
Holt Blvd/Central Ave
Ontario
Holt Blvd/Mountain Ave*
Holt Blvd/San Antonio Ave*
Holt Blvd/Euclid Ave*
Holt Blvd/Campus Ave*
Holt Blvd/Grove Ave*
Holt Blvd/Vineyard Ave
Ontario International Airport (Two stations)
Inland Empire Blvd/Archibald Way
Inland Empire Blvd/Porsche Way
Ontario Mills
Ranch Cucamonga
Rancho Cucamonga Metrolink Station
Foothill Blvd/Milliken Ave
Foothill Blvd/Rochester Ave
Victoria Gardens between North and South Main St
Project Fleet and Maintenance Facilities
The Project’s fleet is comprised of 40-foot-long electric battery powered zero emission buses with sbX branding. The buses have a third door on the left side for boarding at center station platforms. On-route charging infrastructure will be constructed at Pomona Transit Center. Overhead charging infrastructure will also be constructed at Omnitrans’ West Valley maintenance facility in Montclair.
EXHIBIT B -1
TYPICAL STATION AREA
(Pages to follow)
EXHIBIT B -2
POMONA TRANSIT CENTER STATION AREA
(Pages to follow)
EXHIBIT C - MAINTENANCE RESPONSIBILITY CHECKLIST FOR PROJECT PROPERTY INSTALLED AS PART OF THIS PROJECT Omnitrans
City
Station Area
Platforms including pavers and concrete
☒
☐
Pylons
☒
☐
Pylon for Digital Kiosk
☒
☐
Digital Kiosks
☒
☐
Signage
☒
☐
Fencing
☒
☐
Handrails
☒
☐
Detectible Warning Strips
☒
☐
New Canopies
☒
☐
Cameras
☒
☐
Public Address System
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Emergency Telephones
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Lighting at Stations
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Benches
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Trash Receptacles
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Bike Racks
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Planters
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Equipment boxes
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Cleaning/Pressure Washing
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Graffiti
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Curbs, ramps & vehicle pull-out areas within station
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Public Announcement System at Station
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Electrical cabinets & electrical usage fees for meter at station ☒
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Electric on-route pantograph chargers (Pomona Transit Center only) and electrical usage fees for meter ☒
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Water Usage at Station [irrigation and power washing]
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Other station amenities or equipment in the station
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Transit Signal Priority
Transit Signal Priority Equipment – on bus
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Transit Signal Priority mechanism – located inside traffic signal cabinet ☒
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Traffic signal cabinet
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Public Right of Way & City Property
Street Lighting
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Electrical meters and usage fees
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Landscaping outside Station
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Paved surfaces
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Striping
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Permanent Pavement markers
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Curbs leading to and outside Station
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Sidewalks
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Medians
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Bus Pull-in area [Pomona Transit Center]
If either Party believes the bus bay at the Pomona Transit Center, as depicted in Exhibit B-1, needs significant repair or replacement, the Parties will meet and determine an appropriate action plan. ☒
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Trash Capture Devices in drainage inlet
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Water Usage Outside the Station [irrigation & power washing] ☐
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Agreement between Omnitrans and City of Pomona for Operations and Maintenance of West Valley Connector Project