Omnitrans Passenger Amenity Program Agreement-2018-35 CITY OF GRAND TERRACE
PASSENGER AMENITY PROGRAM AGREEMENT
BY AND BETWEEN
OMNITRANS
1700 W. FIFTH ST.
SAN BERNARDINO CA 92411
AND
CITY OF GRAND TERRACE
22795 BARTON RD
GRAND TERRACE CA 92313
1. Parties and Date. This Passenger Amenity Program Agreement("Agreement") is
made and entered into this 27th day of March, 2018 by and between Omnitrans, a
California Joint Powers Authority("Omnitrans"), and the City of Grand Terrace, a
California municipal corporation ("City"). Omnitrans and City are also referred to
herein individually as "Party" and collectively as "Parties."
2. Recitals
2.1 Purpose
2.1.1. Omnitrans is a provider of public mass transportation for the San
Bernardino Valley, and has the professional ability to administer
programs to install and maintain bus shelters and other passenger
Amenities in cities. Omnitrans represents that it is experienced in
providing such services to public clients.
2.1.2. The Parties recognize that upgraded, well-maintained bus stops
and Amenities benefit City residents, the City's business
community, and transit riders region-wide.
2.1.3. The Parties desire that by this Agreement, Omnitrans shall have
the right to provide bus stop Amenities within boundaries of City,
and in exchange, will receive all revenue, including advertising,
from such Amenities.
2.1.4. The Parties agree that if City, properq- developer, or property
owner installs bus stop Amenities separate from the Amenities that
Omnitrans installs (of which Omnitrans does not agree to take
ownership),Omnitrans does not bear the responsibility to maintain
those Amenities and shall have no liability for such Amenities.
2.2. Definition of Amenities. The definition of"Amenities"as used throughout
this Agreement may include, but not be limited to: shelters, benches, lean
bars,trash receptacles,customer information signage(physical or electronic
signage), advertising panels (static or digital), solar panels, lighting,
security systems, and bicycle racks.
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2.3. Program. City desires to engage Omnitrans to administer a comprehensive
Passenger Amenities Program ("Program") at current and future bus stops
throughout the City as set forth in this Agreement.
3. Responsibilities under Agreement
3.1 Scope of Services
3.1.1 General Scope of Services. The City grants Omnitrans the right to
administer the Program at current and future bus stops throughout
the City. Omnitrans may use a contractor(s) to perform the
construction and maintenance services("Contractor") in connection
with the Program ("Services")at current and future bus stops within
the City.
3.1.2 Placement of Amenities. Omnitrans will place Amenities based
upon the guidance outlined in Omnitrans'Transit Design Guidelines
L29131. City and Omnitrans will coordinate on the placement of
Amenities based on such Guidelines, ridership, funding availability
and other determined needs.
3.1.3 Availability of Sidewalk Space. The availability of flat concrete
sidewalk space on which Amenities can be installed (10' by 25' for
shelters) is also crucial to installation of shelters. Omnitrans will
partner with City to pursue funding whenever possible for
installation of concrete improvements or accessibility
improvements needed for installing Amenities at bus stops.
3.1.4 Shelter Design. Omnitrans shall ensure that bus shelters in the City
are constructed in accordance with all applicable Americans with
Disabilities Act ("ADA") guidelines, as well as other guidance laid
out in Omnitrans' Transit Design Guidelines(2013).
3.1.5 Shelter Types. Shelter types include but are not limited to the
following (examples are shown in Attachment A):
3.1.5.1 Standard blue or green Omnitrans shelter(I Yor 17' length),
which typically includes a trash receptacle, bench,
advertising panel, map case/customer information, and
solar-powered lighting.
3.1.5.2 Premium silver Omnitrans logo shelter (17' length), which
typically includes a trash receptacle, bench, advertising
panel, map caseicustomer information, solar-powered
lighting,electronic real-time information sign,and bike rack.
3.1.5.3 The specific type of shelter to be used for each location shall
be determined by mutual agreement of the parties.
3.1.6 Maintenance and Cleaning. Omnitrans shall wash all shelters
within the City not less than once per month, clean the 15' radius of
the shelters not less than once a week,and clean the benches not less
than once per week.
3.1.7 Amenities - Waste Receptacles. Omnitrans will place and
maintain trash receptacles at all existing and future amenity
locations, empty waste receptacles at least once per week, clean at
least once a month, and add trash receptacles as required by law or
in Omnitrans' discretion.
3.1.8 Relocation or Removal. The City, in its sole discretion and at its
expense may require the relocation or removal of any shelter if the
physical surroundings or use of the shelter poses a threat to the
public health or safety. In such case, Omnitrans shall be responsible
for arranging for such relocation or removal. In all other cases,
Omnitrans in its sole discretion and expense may remove and/or
relocate any bus shelter for its operational convenience. Any new
location shall be agreed upon by the Parties.
3.1.9 Advertising/Public Service Announcements. At a minimum, two (2)
advertising panels within the City's boundaries shall be made available
for the City's use for public service announcements.
3.1.10 Electronic Advertising Panels. Electronic advertising panels may be
used in future shelter designs, upon review and approval by City and if
in conformance with the City's sign code.
3.1.11 Advertising Content. Per the provisions of Omnitrans' contract with
its advertising provider, Omnitrans does not permit, under any
circumstances, any advertisement that violates any federal, state,
county, or local regulation, law, code, or ordinance; is or can be
construed to be false, misleading, deceptive or libelous; contains
copyright infringement;contains an endorsement by Omnitrans without
prior written authorization; contains sexual or adult-oriented content
according to contemporary community standards, obscenity, or nudity;
depicts unlawful or detrimental conduct or advertises unlawful goods or
services; demeans or disparages an individual or group based on race,
color, religion, national origin, ancestry, gender, age, disability, or
sexual orientation; contains images or descriptions of or incites
violence; contains images of firearms in the foreground or making up
15%or more of the advertisement, profanity, alcohol, tobacco, graffiti,
inappropriate graphics, political or religious information. All
Advertisements that contain content or have a presentation that is
objectionable, as so deemed by Omnitrans, will be removed from
affected Amenities within 48 hours, regardless of prior approvals, at
Omnitrans' or its Contractor's expense (based on the provisions of
Omnitrans' contract with its advertising provider).
3.1.12 Approval by City. Omnitrans and the City shall work cooperatively to
identify bus shelter locations. Omnitrans shall not be required to pay
for a permit from City to install a shelter,but shall submit an application.
3.1.13 Duty to Inform Public. Omnitrans shall make every practicable effort
to inform the community of the mechanisms in place for the public to
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report problems concerning the bus shelters and maintenance needs,
which at a minimum is to provide contact information affixed to the
shelter.
3.1.14 Loitering. City will allow Omnitrans to install No Loitering signs at
bus stops,which will assist Omnitrans in addressing vagrancy at the bus
stops. City staff will meet with Omnitrans staff to discuss the possibility
of the City passing an ordinance against loitering at bus stops that
complies with applicable laws and regulations.
3.2 Term. This Agreement shall have no date of termination unless terminated
by the Parties, as provided herein.
3.3 Responsibilities
3.3.1 The Services included in this Agreement shall be performed by
Omnitrans andror Contractor(s) or any other subcontractor under the
Contractor's direct supervision.
3.3.2 Omnitrans and its Contractors retain the right to perform similar or
different services for others during the term of this Agreement. Any
additional personnel performing the Services under this Agreement on
behalf of Omnitrans or its Contractor(s) shall at all times be under the
direction and control of its employer. Omnitrans shall require
Contractor to execute contracts for the benefit of the City and
Omnitrans, releasing the City and Omnitrans from all costs, expenses
and liabilities arising from Contractor's negligent performance of the
services.
3.3.3 Conformance to Applicable Requirements. All work performed in
connection with this Agreement shall be subject to the City's ordinances.
3.3.4 City's Representative. The City hereby designates the City Manager
or his designee, to act as its representative for the performance of this
Agreement ("City's Representative"). City's Representative shall have
the power to act on behalf of the City for all proposed work under this
Contract. Omnitrans shall not accept direction or orders from any
person other than the City's Representative or his or her designee.
3.3.5 Omnitrans' Representative. Omnitrans hereby designates the
Omnitrans Stops and Stations Supervisor, to act as its representative for
the performance of this Agreement ("Omnitrans' Representative").
Omnitrans' Representative shall have the authority to represent and act
on behalf of Omnitrans for all purposes under this Agreement.
Omnitrans' Representative shall supervise and direct the Services, using
his or her best skill and attention,and shall be responsible for all means,
methods, techniques, sequences and procedures for the satisfactory
coordination of all portions of the Program and Services under this
Agreement.
3.3.6 Substitution of Key Personnel. Omnitrans or City may substitute
other personnel of at least equal competence in the place of the
authorized Representative or other key personnel who are responsible
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for fulfilling the responsibilities within this Agreement with written
notice to the other Party in accordance with this Agreement.
3.3.7 Coordination of Services. Omnitrans agrees to work with City staff in
the performance of the Program and Services, and each Party's
representative shall be available to the other at reasonable times with
reasonable notice.
3.4 Insurance
3.4.1 Minimum Requirements. Omnitrans and:`or its Contractor(s) shall
procure and maintain for the duration of the Agreement, insurance
against claims for injuries to persons or damages to property which may
arise from or in connection with the performance of the Agreement by
Omnitrans, its agents, representatives, employees or Contractor(s) and
its subcontractors. Omnitrans shall also require any Contractor(s) to
include contract provisions requiring that all subcontractors of the
Contractor shall procure and maintain the same insurance for the
duration of the Agreement. Such insurance shall meet at least the
minimum levels of coverage as described below.
3.4.2 Minimum Scope of Insurance. Coverage shall be at least as broad as
the latest version of the following: (1) General Liability: Insurance
Services Office Commercial General Liability coverage (occurrence
form CG 0001); (2) Automobile Liability: Insurance Services Office
Business Auto Coverage form number CA 0001,code 1 (any auto);and
(3) Workers' Compensation and Employer's Liability: Workers'
Compensation insurance as required by the State of California and
Employer's Liability Insurance. The City shall be named as an
additional insured for all such coverage, where possible, and be
provided with applicable endorsements as more particularly described
below.
3.4.3 Minimum Limits of Insurance. Coverage shall be at least: (1)General
Liability: $1,000,000 per occurrence for bodily injury, personal injury
and property damage. If Commercial General Liability Insurance or
other form with general aggregate limit is used, either the general
aggregate limit shall apply separately to this Agreement/location or the
general aggregate limit shall be twice the required occurrence limit; (2)
Automobile Liability: $1,000,000 per accident for bodily injury and
property damage; and (3) Workers' Compensation and Employer's
Liability: Worker's Compensation limits as required by the Labor Code
of the State of California. Employer's Liability limits of$1,000,000 per
accident for bodily injury or disease. The City shall be named as an
additional insured for all such coverage, where possible, and be
provided with applicable endorsements as more particularly described
below.
3.4.4 Insurance Endorsements. The insurance policies shall contain the
following provisions, or Omnitrans or its Contractor(s) shall provide
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endorsements on forms supplied or approved by the City, to add the
following provisions to the insurance policies:
3.4.5 General Liability. The general liability policy shall be endorsed to
state that: (1) the City, and Omnitrans, and their directors, officials,
officers, employees, agents and volunteers shall be covered as
additional insured with respect to the Work or operations performed by
or on behalf of the Contractor, including materials, parts or equipment
furnished in connection with such work;and (2) the insurance coverage
shall be primary insurance with respect to the City and Omnitrans, and
their directors, officials, officers, employees, agents and volunteers, or
if excess, shall stand in an unbroken chain of coverage excess of
Contractor's or any subsequent Contractor's scheduled underlying
coverage. Any insurance or self-insurance maintained by the Omnitrans
or the City, or their directors, officials, officers, employees, agents and
volunteers shall be excess of Contractor's or any subsequent
Contractor's insurance and shall not be called upon to contribute with it
in any way.
3.4.6 Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) Omnitrans, the City, and their directors,
officials, officers, employees, agents and volunteers shall be covered as
additional insured's with respect to the ownership, operation,
maintenance, use, loading or unloading of any auto owned, leased,hired
or borrowed by the Contractor; and (2) the insurance coverage shall be
primary insurance with respect to Omnitrans or the City, and their
directors, officials, officers, employees, agents and volunteers, or if
excess, shall stand in an unbroken chain of coverage excess of the
Contractor scheduled underlying coverage. Any insurance or self-
insurance maintained by Omnitrans or the City, and their directors,
officials, officers, employees, agents and volunteers shall be excess of
the Contractors insurance and shall not be called upon to contribute with
it in any way.
3.4.7 Worker's Compensation and Employers Liability Coverage. The
insurer shall agree to waive all rights of subrogation against the City, its
directors,officials,officers,employees,agents and volunteers for losses
paid under the terms of the insurance policy which arise from work
deficiently performed by Omnitrans or its Contractor(s), or any other
Contractor or subcontractor performing work pursuant to this
Agreement.
3.4.8 All Coverages. Each insurance policy required by this Agreement shall
be endorsed to state that: (A) coverage shall not be suspended, voided,
reduced or canceled except after thirty (30) days prior written notice by
certified mail,return receipt requested,has been given to Omnitrans and
the City; and (B) any failure to comply with reporting or other
provisions of the policies, including breaches of warranties, shall not
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affect coverage provided to Omnitrans or the Cit), their directors,
officials, officers, employees, agents and volunteers.
3.4.9 Separation of Insureds; No Special Limitations. All insurance
required by this Section shall contain standard separation of insured's
provisions. In addition, such insurance shall not contain any special
limitations on the scope of protection afforded to Omnitrans or the City,
its directors, officials, officers, employees, agents and volunteers.
3.4.10 Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to Omnitrans and the City.
Omnitrans or its Contractor(s) shall guarantee that the insurer shall
reduce or eliminate such deductibles or self-insured retentions as
respects Omnitrans or the City, and their directors, officials, officers,
employees, agents and volunteers.
3.4.11 Acceptability of Insurers. Insurance is to be placed with insurers with
a current A.M. Best's rating no less A-VII, licensed to do business in
California.
3.4.12 Verification of Coverage. The Contractor shall furnish to Omnitrans
original certificates of insurance and endorsements effecting coverage
required by this Agreement. The certificates and endorsements for each
insurance policy shall be signed by a person authorized by that insurer
to bind coverage on its behalf and shall be on forms satisfactory to
Omnitrans. The City reserves the right to require complete copies of all
required insurance policies, at any time.
3.5 Compensation. Omnitrans shall receive no monetary compensation or
reimbursement from the City for the Program and the Services rendered
under this Agreement. Except as provided elsewhere in this Agreement,the
Program and Services are to be provided at no cost to the City. Omnitrans
and the City acknowledge that all advertising revenue generated by the
shelters shall be the sole property of Omnitrans and agree the right to such
revenues is sufficient consideration for the performance of Omnitrans'
obligations hereunder.
4. General Provisions
4.1 Termination of Agreement.
4.1.1 Grounds for Termination. Either Party may, with or without cause,
terminate this Agreement in whole or in part, by giving written notice
of such termination and specifying the reasons for such termination and
the effective date thereof, at least thirty (30) days before the effective
date of such termination. The non-terminating Party has the right to
request a meeting to discuss such termination before its effective date.
4.2 Delivery of Notices. All notices permitted or required under this
Agreement shall be given to the respective Parties at the following address,
or at such other address as the respective Parties may provide in writing for
this purpose:
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Omnitrans: Attn: Director of Marketing& Planning
Omnitrans
1700 West Fifth Street
San Bernardino, CA 92411
City: Attn: City Manager
City of Grand Terrace
22795 Barton Rd
Grand Terrace, CA 92313
Such notice shall be deemed made when personally delivered or
when mailed, twenty-four(24) hours after deposit in the U.S. Mail,
first class postage prepaid and addressed to the Party at its applicable
address. Actual notice shall be deemed adequate notice on the date
actual notice occurred, regardless of the method of service.
4.3 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents
as may be necessary,appropriate or convenient to attain the purposes of this
Agreement.
4.4 Attorneys' Fees. If either Party commences an action against the other
Party, whether legal, administrative or otherwise, arising out of or in
connection with this Agreement, neither Party in such litigation shall be
entitled to have and recover from the losing Party reasonable attorneys' fees
and all other costs of such action.
4.5 Indemnification. Omnitrans shall defend, indemnify and (told the City, its
officials,officers, employees, volunteers and agents free and harmless from
any and all claims,demands,causes of action.costs, expenses, liability loss,
damage or injury, in law or equity, to property or persons, including
wrongful death, in any manner arising out of or incident to any actual or
alleged acts, omissions or willful misconduct of Omnitrans, its officials,
officers, employees, agents, Contractors and subcontractors arising out of
or in connection with the performance of, the Program, Services or this
Agreement. City shall defend, indemnify and hold Omnitrans, its officials,
officers, employees, volunteers and agents free and harmless from any and
all claims,demands,causes of action,costs,expenses, liability loss,damage
or injury, in law or equity,to property or persons, including wrongful death,
in any manner arising out of or incident to any actual or alleged acts,
omissions or willful misconduct of City, its officials, officers, employees,
agents, Contractors and subcontractors arising out of or in connection with
the performance of, the Program, Services or this Agreement.
4.6 Entire Agreement. This Agreement contains the entire Agreement of the
Parties with respect to the subject matter hereof, and supersedes all prior
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negotiations, understandings or agreements. This Agreement may only be
modified by a writing signed by both Parties.
4.7 Governing Law. This Agreement shall be governed by the laws of the
State of California. Venue shall be in San Bernardino County.
4.8 Time of Essence. Time is of the essence for each and every provision of
this Agreement.
4.9 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties
4.10 Construction,References,and Captions. Since the Parties or their agents
have participated fully in the preparation of this Agreement, the language
of this Agreement shall be construed simply, according to its fair meaning,
and not strictly for or against any Party. Any term referencing time, days
or period for performance shall be deemed calendar days and not workdays.
All references to Omnitrans include all personnel, employees, agents. and
Contractors of Omnitrans, except as otherwise specified in this Agreement.
All references to City include its officers,employees,agents,and volunteers
except as otherwise specified in this Agreement. The captions of the various
articles and paragraphs are for convenience and ease of reference only, and
do not define, limit, augment, or describe the scope, content, or intent of
this Agreement.
4.11 Amendment and Modification. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing
and signed by both Parties.
4.12 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same of other covenant or condition. No
waiver, benefit, privilege, or service voluntarily given or performed by a
Party shall give the other Party any contractual rights by custom,estoppels.
or otherwise.
4.13 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
414 Invalidity and Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent
jurisdiction,the remaining provisions shall continue in full force and effect.
4.15 Prohibited Interest. Omnitrans maintains and warrants that it has not
employed nor retained any company or person, other .than a bona fide
employee working solely for Omnitrans,to solicit or secure this Agreement.
Further,Omnitrans warrants that it has not paid nor has it agreed to pay any
company or person, other than a bona fide employee working solely for
Omnitrans, any fee, commission, percentage, brokerage fee, gift or other
consideration contingent upon or resulting from the award or making of this
Agreement. For breach or violation of this warranty, City shall have the
right to rescind this Agreement without liability. For the term of this
Agreement, no member, officer of employee of City, during the term of his
c)
or her service with City, shall have any direct interest in this Agreement,or
obtain any present or anticipate material benefit arising there from.
4.16 Equal Opportunity Employment. Omnitrans represents that it is an equal
opportunity employer and it shall not discriminate against any contractor,
employee or applicant for employment because of race, religion, color,
national origin, handicap, ancestry, sex or age. Such non-discrimination
shall include,but not be limited to,all activities relate to initial employment,
upgrading, demotion, transfer, recruitment or recruitment advertising,
layoff or termination. Omnitrans shall also comply with all relevant
provisions of City's Minorite Business Enterprise program, Affinnative
Action Plan or other related programs or guidelines currently in effect or
hereinafter enacted.
4.17 Labor Certification. By its signature hereunder. Omnitrans certifies that
it is aware of the provisions of Section 3700 of the California Labor Code
which require every employer to be insured against liability for Worker's
Compensation or to undertake self-insurance in accordance with the
provisions of that Code. and agrees to comply with such provisions before
commencing the performance of the Services.
4.18 Authority to Enter Agreement. Omnitrans has all requisite power and
authority to conduct its business and to execute, deliver, and perform this
Agreement. Each Party warrants that the individuals who have signed this
Agreement have the legal power, right. and authority to make this
Agreement and bind each respective Party.
4.19 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
4.20 Assignment. Omnitrans shall have the right to assign all or part of this
Agreement upon consent of the City, which consent shall not be
unreasonably withheld.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO PASSENGER AMENITY PROGRAM AGREEMENT
CITY OF N TE CE OMNITRANS
By: By:
G. Ha r I uffe Sco rah m
City a ger r CEO/General Manager
Dated: s 2 QG Dated:
ATTFT.
By:
Debra Thomas
City Clerk
APPROVED TO FORM APPROVE I
By: By:
Richard L.Adams, II A. iva Shane
City Attorney C4nnitrans Legal Counsel
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ATTACHMENT A
Examples of shelters And amenities
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