HomeMy WebLinkAboutA7025 - CVAG - TAHQUITZ CREEK LEVEE IMP CP 08-26 COOPERATIVE AGREEMENT
BY AND BETWEEN
CVAG AND CITY OF PALM SPRINGS
for
Tahquitz Creek Levee Reconstruction Project
Bike Path Replacement
THIS AGREEMENT is made and entered into this day of SCPrC�7G�EiL
2017, by and between the City of Palm Springs ("City"), and the Coachella Valley
Association of Governments ("CVAG"), a California joint powers authority, (each a
"Party," and collectively the "Parties," to this agreement,) and is made with reference to
the following background facts and circumstances:
A. The City plans to reconstruct approximately 4,100 feet of the Tahquitz
Creek Levee between Demuth Park and Gene Autry Road, including replacement of an
existing paved bike path on top of the levee;
B. The CV Link project proposes to make improvements to the existing
Tahquitz Creek Bike Path in order to integrate it into the regional CV Link network,
including the 4,100-foot long section of bike path on top of the Tahquitz Creek Levee
that is planned for reconstruction;
D. Design, engineering and environmental review of the proposed CV Link
project is not complete, the project has not yet been approved, and construction is not
expected to begin until early 2018, or later, if the project is ultimately approved;
E. The City has had the Tahquitz Creek Levee Reconstruction project
(TCLRP) in development since 2008, pre-dating planning for CV Link. The City would
reconstruct the Tahquitz Creek levee and the existing bike path regardless of CV Link,
thereby establishing its independent utility. However, for purposes of prudent planning
and responsible use of public funds, the City wants to complete this independent project
incorporating CV Link design criteria so that if CV Link is constructed the bike path on
top of the Tahquitz Creek levee will not need to be replaced a second time.
F. The Parties wish to enter into this cooperative agreement whereby the
City will expand the bike path element of the planned TCLRP to 14 feet and use cement
instead of asphalt, consistent with the proposed CV Link model, to allow the possibility
that CVAG might later be able to assume responsibility for the operation and
maintenance of the bike path on top of the Tahquitz Creek levee if the CV Link project is
subsequently approved for construction;
G. CVAG has been allocated funding from the South Coast Air Quality
Management District (SCAQMD), under AB 1318 Sentinel Mitigation Fees Fund, for CV
Link construction costs. Pursuant to the agreement between CVAG and SCAQMD, AB
1318 funding may be applied to construction of the TCLRP bike path element, with the
City performing as a "Subcontractor"to CVAG;
t ORIGINAL BID
AND/OR AGREEMENT
H. CVAG will pay for the incremental cost of constructing a 14-foot cement
path (consistent with CV Link design) instead of the 10-foot wide asphalt path originally
proposed by the City, including additional construction administration costs. This cost will
be determined by subtracting the value of the initial contract bid and construction
management, inspection & materials testing services accepted by the City for the
TCLRP ($528,000 + 39,000 = $567,000) from the value of next bid that is accepted by
the City for the TCLRP including the updated bike path design.
I. CVAG will also pay for all incremental expenses associated with
incorporation of CV Link design into bidding the TCLRP that are not covered under Alta's
CV Link engineering contract with CVAG. Additional sheet production and design of
levee improvements to accommodate CV Link are budgeted at $20,000. Bid support
services are budgeted at an amount not to exceed $10,000. CVAG will also pay for any
construction support costs associated with the CV-Link.
J. CVAG will plan and pay for mitigation of impacts to the Casey's June
Beetle (CJB) survey area associated with the additional impervious surface created by
incorporating CV Link design. Based on conversations with the United States Fish and
Wildlife Services, the TCLRP will have no additional CJB mitigation requirements other
than those associated with CV Link design impacts. A CJB Habitat Conservation Plan is
being prepared for the CV Link project, which will include the impacts associated with
the CV Link modifications to the bike path element of the TCLRP plans. Mitigation is
being provided through an agreement with the City-owned Tahquitz Creek Golf Course
to convert certain areas of the golf course to more appropriate CJB habitat;
K. The City will cover the costs associated with preparing an application for
a Conditional Letter of Map Revision (CLOMR) and associated construction
administration services.
NOW, THEREFORE, in consideration of the preceding recitals and the mutual
covenants hereinafter contained, the Parties mutually agree as follows:
1. Although all decisions concerning engineering and environmental matters
shall be at the sole discretion of the City, the final design of the bike path element of the
TCLRP shall be subject to review and reasonable approval by CVAG prior to the
commencement of any construction. CVAG's review and reasonable approval shall be
completed within thirty (30) days of submittal by the City.
2. City may seek bids for the construction of the TCLRP, the bike path
specifications for which shall be as consistent as practicable with the proposed CV Link
model; provided, however, that other amenities that might be proposed for the CV Link
project may not be included in the design of the TCLRP.
3. The City shall contract with the successful bidder for the construction of
the TCLRP. CVAG shall reimburse City for costs in the manner provided herein below.
Notwithstanding any other provisions herein, CVAG shall not be obligated for any
monetary contributions that have not been approved and budgeted for this project.
4. At such time as CVAG's legislative body authorizes CVAG (or its
contractor and/or agent) to do so, CVAG shall incorporate the TCLRP bike path element
into the CV Link project and thereafter assume responsibility for the operations and
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maintenance of the bike path on top of the Tahquitz Creek Levee. However, the City
shall be solely responsible for the operation and maintenance of the Tahquitz Creek
Levee bike path until it is accepted by CVAG and incorporated into the CV Link project.
MISCELLANEOUS PROVISIONS
5. At such time as funds are authorized and budgeted by CVAG for
reimbursement to the City for incremental construction costs associated with the TCLRP
bike path element, reimbursement shall be made as follows: The City shall be
responsible for initial payment of all covered costs as they are incurred. Following
payment of such costs, City shall submit invoices to CVAG requesting reimbursement.
Each invoice shall be accompanied by detailed contractor invoices, or other demands for
payment addressed to City, and documents evidencing City's payment of the invoices or
demands for payment. City shall also submit a Project Completion Report, in a form
acceptable to CVAG, with each statement. City shall submit invoices not more often
than monthly and not less often than quarterly.
5.1 Upon receipt of an invoice from City, CVAG may request
additional documentation or explanation of the costs for which reimbursement is sought.
Undisputed reimbursement amounts shall be paid by CVAG to City within thirty (30)
days. CVAG will subsequently seek reimbursement from SCAQMD.
5.2 If a post-payment audit or review indicates that CVAG has
provided reimbursement to City in an amount in excess of that permitted under this
agreement, City shall reimburse CVAG for the excess or ineligible payments within thirty
(30)days of notification by CVAG.
5.3 Prior to any final payment to City by CVAG, a final report shall be
submitted to CVAG by City containing a record of all payments made for the bike path
element of the TCLRP and the source of funds of all such payments, together with a
record of all change orders, cost over-runs, and other expenses incurred. Final payment
will thereafter be paid by CVAG in accordance with its rules, regulations and policies
concerning project cost determination and expense eligibility for the CV Link project.
5.4 The format used for all bids solicited by City for the TCLRP shall
require itemization sufficient to allow quantities of each bid item to be easily discernible.
If requested by CVAG, it shall be the responsibility of City to determine what, if any,
portion of the work is an enhancement to any specifications adopted for the CV Link
model, for which there shall be no reimbursement.
5.5. City shall maintain an accounting of all funds received from CVAG
pursuant to this agreement in accordance with generally accepted accounting principles.
City agrees to keep all contracts and records for a period of not less than three years
from the date a notice of completion is recorded by the City for the TCLRP; or, if the
TCLRP is not the type of project for which a notice of completion would normally be
recorded, for three years from the date of completion. The City may keep the records in
either electronic or hard copy format. City shall permit CVAG, at any reasonable time,
upon reasonable notice, to inspect any records maintained in connection with the
TCLRP. CVAG shall have no duty to make any such inspection and shall not incur any
liability or obligation by reason of making or not making any such inspection.
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5.6 City shall allow CVAG access to and use of all original documents,
designs, drawings, maps, models, computer files, surveys, notes, and other documents
prepared in the course of the planning, approval and construction of the bike path element of
the TCLRP. Any copies of said originals obtained by CVAG may be used, reused, or
otherwise disposed of by CVAG without the permission of City.
5.7 The Parties agree that announcements, news releases and other
communication materials describing the project shall acknowledge "The project was made
possible by a grant from the South Coast Air Quality Management District AB 1318 Mitigation
Fees Fund to reduce or mitigate emissions within Coachella Valley."
5.8 The following acknowledgment of support and disclaimer must
appear in each publication of materials,whether copyrighted or not, based upon or developed
under this agreement.
This Agreement was prepared as a result of work paid for, in whole or in part, by a
grant from the South Coast Air Quality Management District (SCAQMD). The
opinions, findings, conclusions, and recommendations are those of the author and do
not necessarily represent the views of SCAQMD. SCAQMD, its officers, employees,
contractors, and subcontractors make no warranty, expressed or implied, and
assume no legal liability for the information in this report. SCAQMD has not approved
or disapproved this report, nor has SCAQMD passed upon the accuracy or adequacy
of the information contained herein."
6. The occurrence of any one or more of the following events shall, at the
non-defaulting Parry's option, constitute an Event of Default and the defaulting Party
shall provide the other Party with immediate notice thereof.
6.1 Any warranty, representation, statement, report or certificate made
or delivered to the other Party or any of its officers, employees or agents, now or
hereafter, which is incorrect, false, untrue or misleading in any material respect;
6.2 A Party shall fail to pay, perform or comply with, or otherwise shall
breach, any obligation, warranty, term or condition in this agreement or any amendment
to this agreement, or any agreement delivered in connection with the TCLRP; or,
6.3 There shall occur any of the following: dissolution, termination of
existence or insolvency of a Party; the commencement of any proceeding under any
bankruptcy or insolvency law by or against a Party; entry of a court order which enjoins,
restrains or in any way prevents a Party from paying sums owed to creditors.
7. No waiver of any Event of Default or breach by one Party hereunder shall
be implied from any omission by any other Party to take action on account of such
default, and no express waiver shall affect any default other than the default specified in
the waiver and the waiver shall be operative only for the time and to the extent therein
stated. Waivers of any covenant, term, or condition contained herein shall not be
construed as a waiver of any subsequent breach of the same covenant, term or
condition. The consent or approval by one Party to or of any act by any other Party shall
not be deemed to waive or render unnecessary the consent or approval to or of any
subsequent or similar act.
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8. This agreement is made and entered into for the sole protection and
benefit of the City and CVAG, and no third person shall have any right of action under
this agreement.
9. This agreement is for funding purposes only and nothing herein shall be
construed so as to constitute CVAG as a party to the construction or in ownership or a
partner or joint venturer with City as to the TCLRP. The City shall assume the defense
of, indemnify and hold harmless, CVAG, its member agencies, and their respective
officers, directors, agents, employees, servants, attorneys, and volunteers, and each
and every one of them, from and against all actions, damages, claims, losses and
expenses of every type and description to which they may be subjected or put by reason
of or resulting from the actions or inactions of the City related to the TCLRP or taken in
the performance of this agreement or any agreement entered into by City with reference
to the TCLRP. CVAG shall assume the defense of, indemnify and hold harmless the
City, its officers, directors, agents, employees, servants, attorneys, and volunteers, and
each of them, from and against all actions, damages, claims, losses, and expenses of
every type and description to which they may be subjected or put by reason of or
resulting from (a) the actions of CVAG taken in the performance of this agreement or (b)
litigation concerning compliance with environmental laws specific to CV Link and not
associated with the TCLRP prior to any subsequent incorporation into the CV Link
project.
10. City agrees to include in its contract specifications and bid documents a
requirement that all prime contractors shall name CVAG and its member agencies as
"also insured" on all liability insurance coverage required by City on each contract. City
will provide a copy of the Insurance Certificate to CVAG, depicting CVAG and its
member agencies as "also insureds," within 30 days of signing a contract with the prime
contractor.
11. City agrees that any agreements between the City and third parties
relating to the project, including right of way agreements with the Riverside Flood Control
and Water Conservation District, include provisions allowing them to be transferred to
CVAG. City agrees that such transfers will occur at CVAG's discretion.
12. Any dispute concerning a question of fact arising under this agreement
that is not disposed of by voluntary negotiations between the Parties shall first be
decided by the CVAG Executive Director or designee, who may consider any written or
verbal evidence submitted by the Parties. This decision shall be issued in writing.
However, no action in accordance with this Section shall in any way limit any Party's
rights and remedies through actions in a court of law with appropriate jurisdiction.
Neither the pendency of dispute nor its consideration by CVAG will excuse the City from
full and timely performance in accordance with the terms of this agreement.
13. The City and CVAG mutually warrant that all aspects of the TCLRP shall
be undertaken in compliance with all applicable local, state and federal rules, regulations
and laws. The Parties will execute and deliver to each other such further documents
and do other acts and things as are reasonably requested in order to comply fully with all
applicable requirements and to effect fully the purposes of this agreement.
14. This agreement may not be assigned by either Party without the express
written consent of the other Party.
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15. The Parties and their successors in interest and assigns shall be bound
by all the provisions contained in this agreement.
16. No officer or employee of either Party shall be personally liable to the
other Party, or any successor in interest, in the event of any default or breach by either
Party or for any amount which may become due to either Party or to its successors, or
for breach of any obligation of the terms of this agreement.
17. Notwithstanding any other provision herein, CVAG shall not be liable for
payment or reimbursement of any sums for which CVAG has not first obtained the
necessary and appropriate funding.
18. No officer or employee of either Party shall have any personal interest,
direct or indirect, in this agreement; nor shall any such officer or employee participate in
any decision relating to this agreement which effects his or her personal interest or the
interest of any corporation, partnership or association in which she or he is, directly or
indirectly, interested, in violation of any state, federal or local law.
19. City warrants that the funds received by City pursuant to this agreement
shall only be used in a manner consistent with CVAG's reimbursement policy and all
applicable regulations and laws. Any provision required to be included in this type of
agreement by federal or state law shall be deemed to be incorporated into this
agreement.
20. All notices or other communications required or permitted hereunder shall
be in writing and shall be either personally delivered (which shall include delivery by
means of professional overnight courier service which confirms receipt in writing, such
as Federal Express or UPS); sent by telecopier or facsimile machine capable of
confirming transmission and receipt; or sent by certified or registered mail, return receipt
requested, postage prepaid to the following parties at the following addresses or
numbers:
If to CVAG: Tom Kirk, Executive Director
Coachella Valley Association of Governments
73-710 Fred Waring Drive
Palm Desert, CA 92260
Telephone: (760) 346-1127
FAX No.: (760) 340-5949
If to CITY: David Ready, City Manager
City of Palm Springs
3200 East Tahqutiz Canyon Way
Palm Springs, CA 92262
Telephone: (760) 323-8299
FAX No.: (760) 323-8207
Notices sent in accordance with this paragraph shall be deemed delivered upon the next
business day following the: (i) date of delivery as indicated on the written confirmation of
delivery (if sent by overnight courier service); (ii) the date of actual receipt (if personally
delivered by other means); (iii) date of transmission (if sent by telecopier or facsimile
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machine); or(iv) the date of delivery as indicated on the return receipt if sent by certified
or registered mail, return receipt requested. Notice of change of address shall be given
by written notice in the manner detailed in this paragraph.
21. This agreement sets out the entire agreement between the Parties, and is
intended by the Parties to completely state the agreement in full. Any agreement or
representation respecting the matter dealt with herein or the duties of any Party in
relation thereto, not expressly set forth in this agreement, is null and void.
22. If any term, provision, condition, or covenant of this agreement, or the
application thereof to any Party or circumstance, shall to any extent be held invalid or
unenforceable, the remainder of the instrument, or the application of such term,
provision, condition or covenant to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected thereby and each
term and provision of this agreement shall be valid and enforceable to the fullest extent
permitted by law.
23. In the event any Party hereto brings an action or proceeding for a
declaration of the rights of the Parties, for injunctive relief, for an alleged breach or
default, or any other action arising out of this agreement, or the transactions
contemplated hereby, the prevailing party in any such action shall be entitled to an
award of reasonable attorneys' fees and costs incurred in such action or proceeding, in
addition to any other damages or relief awarded, regardless of whether such action
proceeds to final judgment.
24. Time is of the essence in this agreement, and each and every provision
hereof in which time is an element.
25. This agreement and all documents provided for herein shall be governed
by and construed in accordance with the laws of the State of California. Any litigation
arising from this agreement shall be adjudicated in the courts of Riverside County,
Desert Judicial District, and State of California.
26. Each Party warrants that the execution, delivery and performance of this
agreement and any and all related documents are duly authorized and do not require the
further consent or approval of any body, board or commission or other authority.
27. This agreement may be executed in one or more counterparts and when
a counterpart shall have been signed by each Party hereto, each shall be deemed an
original, but all of which constitute one and the same instrument.
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IN WITNESS WHEREOF, the Parties hereto have caused this agreement to be
executed by their duly authorized representatives on this date:
ATTEST: CITY OF PALM SPRINGS
By: B
An"J. Mejia MC, erk David H. Ready, Hager
A AS FORM
CRY ATTORNEY CVAG
By:
To irk, Executive Director
APPROVED BY CITY COUNCIL
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