HomeMy WebLinkAboutA7279 - PALM SPRINGS LLC - TRAFFIC SIGNAL IMPROVEMENTS CP 17-08 REIMBURSEMENT AGREEMENT,
Traffic Signal Modification and Associated Work at the intersection of Indian Canyon
Drive and Alejo Road in Palm Springs.
THIS REIMBURSEMENT AGREEMENT ("Agreement") is-made and entered into
on , 2019, by and between the City of Palm Springs, a California
charter city and municipal corporation ("City"), and Palm Springs LLC, a Delaware
Corporation. City referred to as "Andaz" and are collectively referred to as the "Parties".
RECITALS
A. The conditions of approval for the construction of Andaz Hotel, Case No.
5.1091 Amended, PD-324 Amended, TTM34190, included the following improvements
at the Alejo Rd. and Indian Canyon Dr. Intersection:
Relocation and modification of the existing traffic signal at the intersection of
Indian Canyon Drive and Alejo Road, in conjunction with the associated
proposed street improvements at the southwest corner of the intersection.
Removal of the existing curb ramp and construction of a new Type A curb ramp
meeting current California State Accessibility standards at the southwest corner
of the intersection of Alejo Road and Indian Canyon Drive, in accordance with
City of Palm Springs Standard Drawing No. 212.
Removal and reconstruction of the decorative pedestrian crosswalk across Indian
Canyon Drive at Alejo Road, as necessary to align with the new proposed curb
ramp to be located at the southwest corner of the intersection of Indian Canyon
Drive and Alejo Road.
B. A construction contract in the amount of $4,464,857.00 for Indian Canyon
Drive Two Way Conversion Project (referred to as "Project"), City Project No. 17-08 was
awarded to Elecnor Belco Electric, Inc. on September 5, 2018, which includes the traffic
signal modification and associated work at the intersection of Indian Canyon Drive and
Alejo Road.
C. City is agreeable to construct the traffic signal modification and associated
work as part of the Project, subject to Andaz's agreement to reimburse the City for all
costs related to this construction.
D. City has received an estimate of $149,997.00 from Andaz for the traffic
signal modification and associated work at the intersection of Indian Canyon Drive and
Alejo Road. This estimate is part of a Guaranteed Maximum Price contract has with SR
Construction so Andaz's exposure shall not exceed this price.
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In consideration of these promises and mutual agreements, City and Andaz
agree as follows:
AGREEMENT
1. SERVICES OF CITY
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, City shall construct the modification of traffic signal and associated work at
Alejo Road and Indian Canyon Drive intersection as part of the Indian Canyon Drive
Two Way Conversion Project.
1.2 Compliance with Law. All work and services rendered under this
Agreement shall comply with all applicable federal, state, and local laws, statutes and
ordinances and all lawful orders, rules, and regulations.
2. ADVANCE PAYMENT TO CITY
2.1 Agreement Sum. The total estimated cost for the modification of traffic
signal and associated work at Alejo Road and Indian Canyon Drive intersection is
$149,997.00. Andaz hereby agrees to pay the City the total sum of $149,997.00 upon
execution of this Agreement. Subject to Section 3.2, the Parties acknowledge the final
verified total cost for the traffic signal modification and associated work may differ from
the total sum identified herein this Section 3.1 and adjustments as provided in Section
3.2 below shall be made.
2.2 Final Payment Adjustment. At the completion of the Project, the City will
perform an analysis of final quantities of work completed, and any adjustment to the
total cost for the traffic signal modification and associated work shall be identified. In the
event the final verified total cost exceeds the original payment made pursuant to Section
3.1, Andaz shall pay the City the additional amount owed within thirty (30) days receipt
of written notice from City. In the event the final verified total cost is less than the
original payment made pursuant to Section 3.1, City shall reimburse Andaz the over-
payment within thirty (30) days.
3. PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement.
3.2 Schedule of Performance. Upon receipt of payment pursuant to Section
3.1, City shall promptly coordinate scheduling of the modification of traffic signal and
associated work at Alejo Road and Indian Canyon Drive intersection with the City's
contractor, Elecnor Belco Electric, Inc., to be scheduled as part of and concurrently with
construction of the Project. City shall coordinate with Andaz on the schedule for the
modification of traffic signal and associated work at Alejo Road and Indian Canyon
Drive intersection, and shall provide seventy-two (72) hours' notice prior to initiating the
work.
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4.3 Force Maieure. The time for performance of services to be rendered
under this Agreement may be extended because of any delays due to unforeseeable
causes beyond the control and without the fault or negligence of City. Unforeseeable
causes include, but are not limited to, acts of God or of a public enemy, acts of the
government,'fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes,
freight embargoes, and unusually severe weather.
4.4 Term. Unless earlier terminated pursuant to Section 4.5, this Agreement
shall continue in full force and effect until the completion of the modification of traffic
signal and associated work at Alejo Road and Indian Canyon Drive intersection, and a
determination of the final verified total cost, and payment by Andaz (or reimbursement
by City) in accordance with Section 3.2.
4.5 Termination Prior to Expiration of Term. The Parties acknowledge that
upon receipt of payment in accordance with Section 3.1, the City will assume
responsibility for any costs related to this work. Therefore, the Parties agree that upon
execution this Agreement may not be terminated.
4.6 Warranty and Hold Harmless. City shall defend and hold harmless
Andaz, and all its Members, from any and all claims, damages, or demand arising out
City, Elecnor Belco Electric, Inc., and any subcontractors thereof, performance of its
obligations under City's contract.
5. ENFORCEMENT OF AGREEMENT
5.1 California Law. This Agreement shall be construed and interpreted both
as to validity and to performance of the parties in accordance with the laws of the State
of California. Legal actions concerning any dispute, claim, or matter arising out of or in
relation to this Agreement shall be instituted in the Superior Court of the County of
Riverside, State of California, or any other appropriate court in such county, and Andaz
covenants and agrees to submit to the personal jurisdiction of such court in the event of
such action.
5.2 Interpretation. This Agreement shall be construed as a whole according
to its fair language and common meaning to achieve the objectives and purposes of the
Parties. The terms of this Agreement are contractual and the result of negotiation
between the Parties. Accordingly, any rule of construction of contracts (including,
without limitation, California Civil Code Section 1654) that ambiguities are to be
construed against the drafting party, shall not be employed in the interpretation of this
Agreement. The caption headings of the various sections and paragraphs of this
Agreement are for convenience and identification purposes only and shall not be
deemed to limit, expand, or define the contents of the respective sections or
paragraphs.
5.3 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. No consent or approval of City shall be deemed to waive or render
unnecessary City's consent to or approval of any subsequent act of Andaz. Any waiver
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by either party of any default must be in writing. No such waiver shall be a waiver of any
other default concerning the same or any other provision of this Agreement.
5.4 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. 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.
5.5 Legal Action. In addition to any other rights or remedies, either party
may take legal action, in law or in equity, to cure, correct, or remedy any default, to
recover damages for any default, to compel specific performance of this Agreement, to
obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the
purposes of this Agreement.
6. MISCELLANEOUS PROVISIONS
6.1 Notice. Any notice, demand, request, consent, approval, or
communication that either party desires, or is required to give to the other party or any
other person shall be in writing and either served personally or sent by pre-paid, first-
class mail to the address set forth below. Notice shall be deemed communicated
seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
Either party may change its address by notifying the other party of the change of
address in writing.
To City: City of Palm Springs
Attention: City Manager/ City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
To Palm Springs LLC: Palm Springs LLC
1100 Quail; Street, Suite 203,
Newport Beach, CA 92660
6.2 Integrated Agreement. This Agreement contains all of the agreements of
the parties and supersedes all other written agreements.
6.3 Amendment. No amendments or other modifications of this Agreement
shall be binding unless through written agreement by all Parties.
6.4 Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under applicable law. 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 valid
judgment or decree of a court of competent jurisdiction, such invalidity or
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unenforceability shall not affect any of the remaining phrases, sentences, clauses,
paragraphs, or sections of this Agreement, which shall be interpreted to carry out the
intent of the parties.
6.5 Successors in Interest. This Agreement shall be binding upon and inure
to the benefit of the Parties' successors and assignees.
6.6 Third Party Beneficiary. Except as may be expressly provided for in this
Agreement, nothing contained in this Agreement is intended to confer, nor shall this
Agreement be construed as conferring, any rights, including, without limitation, any
rights as a third-party beneficiary or otherwise, upon any entity or person not a party to
this Agreement.
6.7 Recitals. The above-referenced Recitals are hereby incorporated into the
Agreement as though fully set forth in this Agreement and each Party acknowledges
and agrees that such Party is bound, for purposes of this Agreement, by the same.
6.8 Authority. The persons executing this Agreement on behalf of the Parties
warrant that they are duly authorized to execute this Agreement on behalf of Parties and
that by so executing this Agreement the Parties are formally bound to the provisions of
this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
dates stated below.
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"CITY"
City of Palm Springs
Date: / B
David H. Ready
City Manager
APPROVED AS TO FORM: ATTEST
By: ,/ By:0 n,
thony jia
City Attorney City Clerk
Palm Springs LLC
Date: 2c7 By :
Lawrence Rael
Managing Member
APPROVED fff CftY COUNCIL
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§1189
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to v.hich this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California }
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On htM 2,0/ ^),-0 1 C before me. tAfl NO"tw 7t, C'
Date Here Insert Name and Title of Me Officer
personally appeared rl C� PaAt
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,executed the instrument,
1 certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
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Though this section is optional, completing this information can deter alteration of the document or
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❑Corporate Officer—Title(s): ❑Corporate Officer — Title(s):
❑Partner — ❑Limited ❑General ❑Partner— ❑Limited ❑General
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❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator
❑Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
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