HomeMy WebLinkAbout12/20/2000 - STAFF REPORTS (5) DATE: December 20, 2000
TO: City Council
FROM: City Engineer and City Attorney
SETTLEMENT AGREEMENT WITH M.C. PARTNERS
RECOMMENDATION:
That the City Council approve a settlement agreement with M.C. Partners, dba
Martin Communications, for completion of landscape and irrigation improvements
on Mesquite Avenue, between Gene Autry Trail and the Dinah Shore Bridge, City
Project No. 95-38.
SUMMARY:
Over the past 8 months, City staff has been negotiating with Martin
Communications over an agreement which will provide for completion of the
landscaping and irrigation improvements on Mesquite Avenue, between Gene
Autry Trail and the Dinah Shore Bridge. The work will be done by a contractor
working for Martin Communications, under permit to the City. The work will be in
accordance with the revised project plans prepared by Ron Gregory &Assoc.
(RGA), and approved by Martin Communications and the City. This agreement
was prepared by the City Attorney and has received approval from Martin
Communications.
BACKGROUND:
In 1999, Council entered into a $538,000 contract with Tapuz Enterprises for the
construction of landscaping and irrigation improvements on Mesquite Avenue,
between Gene Autry Trail and the Dinah Shore Bridge. The contract also
included landscaping the east and west bound approaches to Dinah Shore
Bridge The landscaping of the bridge approaches was funded from Measure A
Regional funds as part of the Mid-Valley Parkway, while the median landscaping
on Mesquite Avenue was funded from a Federal grant.
Martin Communications obtained a preliminary court injunction against the City,
effectively stopping the median landscaping project. It was Martin's contention
that the landscaping would block visibility of billboards which Martin
Communications had installed along Mesquite Avenue. The parties decided,
rather than proceeding with the litigation, to attempt to negotiate a settlement
whereby the City would agree to install less landscaping and Martin would pay
the cost. In June 2000, RGA Landscape Architects completed the plans for the
re-design of the Mesquite Avenue Landscaping.
Martin has subsequently received bids for the completion of the work from
licensed contractors, the lowest of which was $121,551.22 from PINK Inc., of
Palm Desert. Council had expressed agreement to allow Martin to contract with
PINK Inc. in the aforementioned amount, and further agreed to the change from
the original design of Filifera palm trees to Robusta palm trees which would allow
for the $121,551.22 bid.
Settlement Agreement With MC, CP # 95-38
December 20, 2000
Page 2
Since that time, staff has been negotiating with Martin Communications on other
terms of a settlement agreement and release, which would provide for the
funding and construction of said landscaping and irrigation by a contractor under
agreement with Martin Communications, in accordance with a permit to be issued
by the City. The work will be in accordance with the revised drawings prepared
by RGA and approved by City.
The agreement includes language concerning the maintenance of the completed
median landscaping by the City, and provides a mechanism for Martin
Communications to request special maintenance to eliminate any interference
with views to the billboards, provided Martin pays for such maintenance work.
The agreement also provides for releases for both parties, protecting against
future potential claims, and further provides that if all billboards subject to any
view corridor are removed, the terms of the agreement with respect to that view
corridor would terminate.
This agreement has received the concurrence of Martin Communications and is
ready for Council action.
DAVID J. BARAKIAN e—ttorney
City Engineer
APPROVE
City Manaagg
ATTACHMENT:
1. Minute Order
2. Settlement Agreement
I RUTAN & TUCKER LLP
DAVID J. ALESHIRE (BAR NO. 65022)
2 FRED GALANTE (BAR NO. 178421)
611 Anton Boulevard, Fourteenth Floor
3 Costa Mesa, California 92626-1950
Telephone: 714-641-5100
4 Facsimile: 714-546-9035
5 Attorneys for Defendant
CITY OF PALM SPRINGS
6
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF RIVERSIDE
10
11 M-C PARTNERS, a California General, Case No. INC 013492
Partnership doing business as MARTIN
12 COMMUNICATIONS, Judge: Lawrence W. Fry
Department 2J
13 Plaintiff,
14 VS. SETTLEMENT AGREEMENT AND
RELEASE
CITY OF PALM SPRINGS, and DOES 1
15 through 25, Inclusive, Date Action Filed: August 16, 1999
16 Trial Date: February 5, 2001
Defendant.
17
18 This Settlement Agreement and Release ("Agreement") is entered into by and
19 between Plaintiff M-C Partners, a California general partnership doing business as Martin
20 Communications ("Martin"), on the one hand, and Defendant City of Palm Springs, a
21 California municipal corporation ("City"), on the other hand, in relation to Riverside
22 County Superior Court Case No. INC 013492 (the "Action"). Martin and City are
23 collectively referred to at times as the "Parties."
24 RECITALS
25 A. On or about August 16, 1999, Martin named City as a defendant in the
26 Action, alleging private nuisance and inverse condemnation causes of action relating to
27 alleged damages to Martin's billboards ("Billboards") on real property leased by Martin
28 and located adjacent to the City's public right-of-way, at the Midvalley Parkway, as more
allomeys of law
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I specifically set forth in Martin's complaint and first amended complaint in this Action.
2 B. On September 24, 1999, this Court heard and granted Martin's Motion for a
3 Preliminary Injunction, enjoining the City from further planting of any trees at the median
4 within the portion of the Mid-Valley Parkway which extends between the Gene Autry
5 Trail and the west end of the Dinah Shore Bridge ("Mesquite Avenue Section").
6 C. On September 24, 1999, this Court further ordered Martin to post a bond
7 ("Bond") in the amount of$150,000 for issuance of the preliminary injunction, which
8 Bond Martin filed with the Court on October 7, 1999.
9 D. To achieve a landscaping plan suitable to both Parties, at the City's request,
10 Martin retained RGA Landscape Architects Inc. ("RGA") to revise the construction
11 drawings and specifications originally prepared by Robert Bein, William Frost and
12 Associates ("RBF") for median landscaping and irrigation improvements in the Mesquite
13 Avenue Section, a portion of which landscaping and irrigation improvements the City had
14 installed before the date of the Action and currently remain in the Mesquite Avenue
15 Section.
16 E. The revised construction drawings for the landscaping and irrigation
17 improvements prepared by RGA ("RGA Drawings") incorporate the use of a lesser number
18 of trees than those described in the original drawings prepared by RBF. The RGA
19 Drawings are hereby modified to include the additional revision of replacing the
20 designation of Washingtonia Filifera where called for on the RGA Drawings with 12 feet
21 high, skinless Washingtonia Robusta. The RGA Drawings, with the additional revisions
22 described in this paragraph E shall be referred to herein as the "Revised Drawings." The
23 Revised Drawings have been approved by both Parties.
24 F. The Parties wish to have Martin enter into a contract for the completion of
25 the landscaping and irrigation improvements in accordance with the Revised Drawings,
26 including all revisions necessary to the existing landscaping and irrigation to comply with
27 the Revised Drawings ("Improvements").
28 G. Martin is willing to contract for construction of the Improvements at its sole
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I expense, provided that City will assume ownership and responsibility for operation and
2 maintenance of the Improvements following completion of construction and the Parties'
3 acceptance of the Improvements.
4 H. Martin received three bids from construction contractors to construct the
5 Improvements. The lowest bid for the Improvements is from Pink, Inc., in the amount of
6 $121,553.23.
7 I. City has provided Martin with existing Record Revision drawings showing
8 the landscaping improvements installed at the median at the Mesquite Avenue Section
9 before the date of this Agreement.
10 J. The Parties wish to effect a full and final settlement of the Action and to
11 enter into this Agreement on that basis, and the Parties believe it is in the best interest of
12 the public to proceed with the construction of the Improvements in accordance with the
13 time schedule set forth below.
14 AGREEMENT AND RELEASE
15 IT IS THEREFORE mutually agreed as follows:
16 SECTION I. CITY OBLIGATIONS.
17 1. Revised Drawings: City shall provide one set of the approved Revised
18 Drawings to Martin. Two duplicate sets of the Revised Drawings shall be initialed by
19 authorized representatives of each of the Parties with one set being held by Martin and the
20 second set held by City.
21 2. Inspection Services: Within five (5) days, excluding weekends and holidays,
22 after receipt of written request from Martin, City shall provide, at its own expense,
23 inspection services including construction staking for the construction of the
24 Improvements. City shall further inspect the Improvements during the course of
25 construction to ensure that they are constructed in accordance with the Revised Drawings.
26 3. Approval of Change Orders. Any revision to the Revised Drawings and any
27 change order related thereto shall be subject to City's written approval, with the costs
28 therefor paid pursuant to Section II.2 below. Any City-approved revision to the Revised
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I Drawings or the Improvements shall be submitted to Martin or the Contractor, as that term
2 is defined at Section II.1 below.
3 4. Permit: City shall provide Martin with a no-fee construction permit
4 ("Permit") for the construction of the Improvements.
5 5. Operation/Maintenance of Improvements: City shall accept ownership and
6 responsibility for the operation and maintenance of the Improvements after Martin's
7 recordation of a Notice of Completion for the Improvements pursuant to the terms of this
8 Agreement. City understands that Martin wishes to minimize interference to its Billboards
9 caused by the Improvements. In light of this understanding, the Parties agree that City
10 shall implement and follow its normal rotation schedule for the maintenance and trimming
11 of the Improvements ("Scheduled Maintenance"). Should Martin believe that the
12 Improvements are unreasonably interfering with the view to its Billboards, Martin shall
13 inform City in writing and City will inform Martin of its next Scheduled Maintenance and
14 of the City's actual costs, based on the schedule of costs charged to City by its landscape
15 contractor, to perform earlier maintenance to eliminate the interference. Should Martin
16 wish to have City implement the Scheduled Maintenance at an earlier date for the stated
17 price, Martin shall so inform City in writing and prepay City's actual costs for such earlier
18 maintenance, which costs shall be binding on City.
19 6. Indemnity: After completion of the Improvements, City shall indemnify and
20 defend Martin from any and all lawsuits and claims of any nature filed by any person(s)
21 who claim to be injured by the Improvements, or the maintenance thereof unless caused by
22 the negligence or willful misconduct of Martin.
23 7. Release. City, in consideration of the terms and provisions contained in this
24 Agreement on behalf of itself, its successors, transferees, and assigns, hereby releases and
25 absolutely and unconditionally discharges Martin, Mr. Tom Martin, and Mrs. Rita Martin,
26 their officers, employees, agents, attorneys, assigns, or representatives from and for any
27 and all past, current, and future claims, demands, damages, debts, liabilities, expenses,
28 property damage, personal injuries, attorneys' fees, and causes of action of any kind, at law
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I or at equity, known or unknown, suspected or unsuspected, concerning, based on, arising
2 out of, relating or pertaining to, or connected in any way with the Action, and the subject
3 matter thereof.
4 City acknowledges that it has considered and had the opportunity to discuss this
5 Agreement with its attorneys in the course of negotiations leading to the terms and
6 conditions of this Agreement,
7 City has read and understands the terms of Section 1542 of the California Civil
8 Code. It states:
9 A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
10 Release, which if known by him must have materially affected his
settlement with the debtor.
11 City understands Section 1542 and expressly waives its provisions and elects to and does
12 assume all risk for claims which have arisen or which may arise in the future with respect
13 to the release set forth herein.
14 8. Bond: City shall take such action or authorize such documents as necessary
15 to effect a release of the Bond after completion of the Improvements to City's satisfaction
16 and the recordation of the Notice of Completion.
17 SECTION II. MARTIN OBLIGATIONS.
18 1. Construction Agreement: Martin shall enter into a construction agreement
19 ("Construction Agreement") with a licensed (Class A or C27) construction contractor
20 ("Contractor") for construction of the Improvements in accordance with the Revised
21 Drawings. Martin shall further cause to be constructed the Improvements pursuant to the
22 Construction Agreement between Martin and Contractor as specified herein, and
23 incorporate any City-approved revisions as described at Section I.3. above.
24 2. Costs/Fees of Improvements: Martin shall pay all costs associated with the
25 construction of the Improvements, including but not limited to the Contractor's costs and
26 fees under the Construction Agreement, and all other costs not specifically agreed to by
27 City herein. Martin shall further provide, at its own expense, contract administration
28
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1 services including any utility charges, for the construction of the Improvements. Martin
2 shall further pay any costs and fees associated with any change orders, including change
3 orders required due to any conditions, whether latent or patent, encountered in the field,
4 unless such change order is initiated by the written request of City, in which case City shall
5 pay for any such City-initiated change order.
6 3. Permit: Martin shall require that the Contractor obtain the Permit from City
7 and provide insurance certificates to City with policy limits in accordance with the
8 customary requirements of the construction industry. Martin shall assure that Contractor
9 adheres to the Revised Drawings and as specified in the Permit.
10 4. Completion of Improvements: Martin shall ensure that construction of the
11 Improvements be completed within one hundred twenty (120) days after the date of full
12 execution of this Agreement. Martin shall notify City within ten (10) days after
13 completion of the construction of the Improvements to provide for City inspection of the
14 Improvements. Upon City's written concurrence that construction of the Improvements is
15 completed in accordance with the Revised Drawings, a 20-day plant establishment period
16 shall begin. After said 20-day period and upon City's written concurrence that all work
17 and plants are acceptable, City shall accept the Improvements and Contractor shall file a
18 formal Notice of Completion with the County Recorder.
19 5. Insurance: Martin shall require Contractor to include City, its City Council,
20 managers, officers, agents, engineers, and employees as additional insured for those
21 coverages required in the Permit with respect to insured liabilities caused by the
22 Contractor, its associates, its subcontractors of every tier, and its employees or agents
23 arising out of the work performed by or on behalf of the Contractor.
24 6. Record Revision Drawings: Martin shall provide Record Revision drawings
25 reflecting the Improvements, as actually constructed and installed as of the date Contractor
26 completes the Improvements.
27 7. Release of Claims: Except to the extent otherwise provided for in this
28 Agreement, Martin, in consideration of the terms and provisions contained in this
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I Agreement on behalf of itself, its successors, transferees, and assigns hereby releases and
2 absolutely and unconditionally discharges forever the City, its officers, employees, agents,
3 attorneys, assigns, or representatives from and for any and all past, current, and future
4 claims, demands, damages, debts, liabilities, expenses, property damage, personal injuries,
5 attorneys' fees, and causes of action of any kind, at law or at equity, known or unknown,
6 suspected or unsuspected, (collectively "Claims or Liabilities") concerning, based on,
7 arising out of, relating or pertaining to, or connected in any way with the Action, and the
8 subject matter thereof, including, but not limited to, any claim, defense, cause of action,
9 allegation, prayer for relief, any act or conduct alleged in the Action or which could have
10 been alleged with respect to the underlying facts upon which the Action is based.
11 Martin acknowledges that it has considered and had the opportunity to discuss this
12 Agreement with its attorneys in the course of negotiations leading to the terms and
13 conditions of this Agreement.
14 Martin has read and understands the terms of Section 1542 of the California Civil
15 Code. It states:
16 A general release does not extend to claims which the
17 creditor does not know or suspect to exist in his favor at the
time of executing the Release, which if known by him must
18 have materially affected his settlement with the debtor.
19 Martin understands Section 1542 and expressly waives its provisions and elects to
20 and does assume all risk for claims which have arisen or which may arise in the future with
21 respect to the release set forth herein.
22 SECTION III. MUTUAL OBLIGATIONS.
23 1. Neither City, nor any officer or employee thereof shall be responsible for any
24 damage or liability occurring by reason of any act or omission by Contractor or in
25 connection with any work performed by Contractor under this Agreement.
26 2 Neither Martin, nor any officer or employee thereof shall be responsible for
27 any damage or liability occurring by reason of any act or omission by City or in connection
28
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1 with any work performed by City under this Agreement.
2 Nothing in this Agreement shall constitute a waiver, release, or other limitation of
3 the City's municipal rights, including but not limited to, its police powers, and its powers
4 of eminent domain.
5 3. Time is of the essence in the performance of this Agreement. The Parties
6 agree that they will use their best efforts to perform all obligations contained herein in a
7 timely fashion.
8 4. Any notice sent or required to be sent to either Party shall be mailed to the
9 following addresses:
10 M.C. PARTNERS City of Palm Springs
dba Martin Communications Public Works Department
11 69930 Highway 111, Suite 211 P.O. Box 2743
12 Rancho Mirage, CA 92270 Palm Springs, CA 92263
13 SECTION IV. GENERAL PROVISIONS.
14 1. Termination of Agreement. This Agreement shall terminate as applied to
15 those portions of the Mesquite Avenue Section located within the view area of any
16 Billboards that are removed after the effective date of this Agreement. For the purposes of
17 this Section, the "view area(s)" shall be those areas depicted in the overlay map that is a
18 part of the Revised Drawings showing the portion of the Improvements located between
19 each Billboard and Mesquite Avenue Section from which that Billboard may be viewed
20 from an automobile traveling both eastbound and westbound on the Mesquite Avenue
21 Section. This Agreement shall terminate in its entirety upon the removal of all Billboards.
22 2. Parties' Representations and Warranties: The Parties hereby warrant and
23 represent that they each have full authority to undertake the provisions of this Agreement
24 and that they have not assigned or transferred or purported to assign or transfer, by way of
25 subrogation or otherwise, any matter, claim, cause of action, liability or amount (or any
26 part or portion thereof) released pursuant to this Agreement to any person or entity. Each
27 party hereby covenants and agrees to defend, indemnify and hold harmless the other from
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I and against any breach of this warranty.
2 3. Parties Bear Own Costs, Fees, Expenses: Each of the Parties shall bear all of
3 its own respective costs, expenses and attorneys' fees, and any and all other expenses
4 whatsoever, related to the Action.
5 4. No Admission of Liability: The Parties acknowledge that, except with
6 respect to the express undertakings set forth in this Agreement, neither of the Parties
7 admits liability for any action or omission alleged in the Action, and the Parties
8 specifically deny same. The Parties acknowledge that the promises, covenants and
9 releases set forth in this Agreement are in consideration of a settlement and compromise
10 and are given for the purpose of avoiding the costs and expenses of any continued legal
11 proceeding with respect to those matters being compromised or released.
12 5. Integrated Agreement, Modification in Writing: This Agreement constitutes
13 a single integrated written instrument expressing the entire agreement of the Parties
14 concerning this subject matter. This Agreement can only-be modified by a written
15 instrument signed by the Parties.
16 6. Construction. This Agreement shall be construed under the laws of the State
17 of California.
18 7. Counterparts. This Agreement may be executed in multiple counterparts,
19 each of which shall be considered an original but all of which shall constitute one
20 Agreement.
21 8. Draftpersons. The language of this Agreement shall be construed as a whole,
22 according to its fair meaning and intendment, regardless of who was principally
23 responsible for drafting any specific term or condition. This Agreement is the product of
24 the drafting by each of the Parties and shall not be construed against any party by reason of
25 any drafting of provisions.
26 9. Further Acts. Each Party to this Agreement agrees to perform all farther acts
27 and execute all further documents necessary to carry out the purposes of this Agreement.
28 10. Authori . Each person executing this Agreement on behalf of each of the
rev&S
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1 Parties represent and warrant that (s)he is fully authorized to do so on behalf of that party.
2 11. Enforcement of Agreement. The Parties agree that the court shall retain
3 jurisdiction of this matter, as appropriate, to enforce the terms of this Agreement pursuant
4 to Code of Civil Procedure Section 664.6.
5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
6
7 PARTIES
8 APPROVED AS TO FORM: M-C PARTNERS DBA MARTIN
9 COMMUNICATIONS
10 �In
11 Counsel for Martin Its:
12
13 APPROVED AS TO FORM: CITY OF PALM SPRINGS
14
15
By:
16 Counsel for Its:
17 City of Palm Springs
18
ATTEST:
19
By:
20 City Clerk
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Dec-19-00 04:48pm From-RUTAN 714-546-9035 T-736 P.02/02 F-075
1 Parties represent and warrant that(s)he is fully authorized to do so on behalf of that party.
2 11. Enforcement of Agreement. The Parties agree that the court shall retain
3 jurisdiction of this matter, as appropriate,to enforce the terms of this Agreement pursuant
4 to Code of Civil Procedure Section 664.6.
5 IN WITNESS WHEREOF,the parties hereto have executed this Agreement on
6
7 PARTIES
8 APPROVED AS TO FORM: M-C PARTNERS ABA MARTIN
9 COMMUNICATIONS
10
By:
I I Counsel for Martin Its:
12
13 APPROVED AS TO FORM: CITY OF PALM SPRINGS
14
15 C. L'J By:
16 Counsel for Its:
17 City of Palm Springs
18
ATTEST:
19
By:
20 City CIerk
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11P712 W a121091W SF MFMBNTAQRRHMENT AND ULWE
MINUTE ORDER NO.
APPROVING A SETTLEMENT AGREEMENT WITH M.C.
PARTNERS, DBA MARTIN COMMUNICATIONS, FOR
COMPLETION OF LANDSCAPE AND IRRIGATION
IMPROVEMENTS ON MESQUITE AVENUE, BETWEEN
GENE AUTRY TRAIL AND THE DINAH SHORE BRIDGE,
City Project No. 95-38
I HEREBY CERTIFY that this Minute Order approving a settlement agreement with M.C.
Partners, dba Martin Communications, for completion of landscape and irrigation
improvements on Mesquite Avenue, between Gene Autry Trail and the Dinah Shore
Bridge, City Project No. 95-38., was adopted by the City Council of the City of Palm
Springs, California, in a meeting thereof held on the 20th day of December 2000.
PATRICIA A. SANDERS
City Clerk
5�4