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HomeMy WebLinkAboutC23870 Landscaped Median on Portola Washington Charter School CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT STAFF REPORT REQUEST: Authorize the Mayor to Execute the Agreement with Desert Sands Unified School District (DSUSD) for Construction of a Landscaped Median on Portola Avenue along the frontage of Washington Charter School. SUBMITTED BY: Mark Greenwood, P.E., City Engineer DATE: December 8, 2005 CONTENTS: Agreement Vicinity Map Recommendation: Authorize the Mayor to execute the agreement with Desert Sands Unified School District (DSUSD) for the construction of landscaped medians on Portola Avenue along the frontage of Washington Charter School. Discussion: Desert Sands Unified School District is in the process of constructing a new campus, including all new buildings at Washington Charter School at 45-768 Portola Avenue. Along with the new school facilities, DSUSD would like to construct a landscaped median along the frontage of the school to mitigate traffic impacts, as a joint project with the City of Palm Desert. An agreement has been prepared to construct the landscaped median as a joint project at an estimated cost of $151,000. The agreement with DSUSD outlines the roles and responsibilities of each party for the construction of the median. A summary of the agreement is as follows: 1. Palm Desert will be the lead agency for the project. 2. The project will consist of the construction of a raised, landscaped, fourteen-foot- wide median island on Portola Avenue from Shadow Mountain Drive to Fairway Drive. 3. DSUSD will be responsible for 50% of the $62,000 estimated cost of construction, landscaping, and irrigation improvements along its frontage. 4. After the project is complete, Palm Desert will invoice DSUSD for its portion of the cost. Agreement with DSUSD for Portola Avenue Medians Page 2 of 2 December 8, 2005 Funding for the median and the landscape construction will come from the Fund 400 Major Street Landscaping account. The City of Palm Desert’s portion is estimated to be $120,000.00. The attached agreement was reviewed and approved by our City Attorney. After execution, the agreement will be returned to DSUSD for their approval. Therefore, staff recommends that City Council, by minute motion, authorize the Mayor to execute the subject agreement. Submitted By: Department Head: Mark Greenwood, P.E. Michael Errante, P.E. City Engineer Director of Public Works Approval: Homer Croy Paul Gibson ACM for Development Services Director of Finance Carlos Ortega City Manager /rg/dhl C:\\Users\\nmartin\\AppData\\Local\\Temp\\14466 (2)_938084\\14466 (2).doc REIMBURSEMENT AGREEMENT This REIMBURSEMENT AGREEMENT (the "Agreement") is made and entered into this ________________ day of ________________________, 2005, by and between the DESERT SANDS UNIFIED SCHOOL DISTRICT (“DSUSD”), a school district organized and existing under the laws of the State of California and the CITY OF PALM DESERT, a California municipal corporation (the “City”). RECITALS: A. DSUSD intends to construct a new elementary school located at 45-768 Portola Avenue in the City of Palm Desert (“Development”). B. DSUSD conducted an environmental analysis of the Development pursuant to the California Environmental Quality Act (“CEQA”), Public Resources Code Section 21000 et seq., in which it was determined that certain traffic impacts of the Development could be mitigated through DSUSD’s construction of certain street and right of way improvements, as described hereinbelow. C. In addition to DSUSD’s share of the costs to construct the aforementioned street improvements, the City has agreed to pay a portion of such costs, as described hereinbelow. D. The parties desire, by this Agreement, to set forth the obligations of the City and DSUSD with respect to the payment for and construction of the improvements described hereinbelow. NOW, THEREFORE, it is agreed by and between the parties hereto as follows: 1. Responsibilities of City. City shall cause the design and construction of a 14-foot wide landscaped median in Portola Avenue from Shadow Mountain Drive to Fairway Drive (the "Project"). City agrees to review with DSUSD the estimated costs for construction of the Project following the preparation of the engineer’s estimate and following the receipt of construction bids. The eligible costs outlined within Exhibit “A” may be adjusted by the City if necessary. 2. Responsibilities of DSUSD. DSUSD shall reimburse the City fifty percent (50%) of the cost of construction of that portion of the Project extending along the frontage of the Development (hereinafter, the “Improvements”). The cost of construction of the Improvements shall be determined by measuring the length of the Improvements, dividing that length by the total length of the Project, and multiplying the resulting fraction by the total cost of construction of the Project. DSUSD shall receive a credit against such reimbursement obligation in an amount equal to fifty percent (50%) of the cost of the design of the Improvements, as evidenced by invoice(s) and proof of payment thereof to be submitted to the City. DOCSOC/1097558v4/022929-0000 3. Timing of Reimbursement. Reimbursement for work performed shall be made within thirty (30) days after presentation to DSUSD of statements from the City certifying project costs, and enclosing therewith copies of contractor’s invoices, evidence of payment, and other such information and records as may be required by DSUSD to verify costs, provided however, that such payments shall be made to City no more frequently than monthly. 4. Project Completion Report. Prior to any final payment to City by DSUSD, a final report shall be submitted to DSUSD by City containing a record of all payments made for said project, together with a record of all change orders, cost over-runs, and other expenses incurred, and final payment thereafter will be paid by DSUSD in accordance with the provisions of this Agreement. 5. Warranty. City shall warrant the Improvements for a period of one year following their completion and acceptance by DSUSD. 6. Disputes. In the event of any dispute arising under this Agreement, the defaulting party shall notify the non-defaulting party of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations incurred herein so long as the injuring party commences to cure such injuring action within ten (10) business days of service of such notice and completes the cure within forty-five (45) calendar days after the notification, or such longer period as may be agreed upon by the parties. 7. Attorney’s Fees. If any party commences an action against the other arising out of or in connection with this Agreement, including the filing of a lien or other legal action to compel payment of the Reimbursement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and legal costs from the losing party. 8. Indemnification. DSUSD agrees to indemnify, defend and hold City and its officers, employees, agents, representatives, and assigns (“City Indemnitees”) harmless from and against any losses, claims, demands, actions, or causes of action, of any nature whatsoever, arising out of or in any way connected with the performance of DSUSD, its officers, employees, agents, or representatives under this Agreement, including costs of suit and reasonable attorneys' fees. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding in any way involving such losses, claims, demands, actions, or causes of action, DSUSD shall provide a defense to the City Indemnitees, including reasonable attorneys’ fees, incurred in defense of such claim. In addition, DSUSD shall be obligated to promptly pay any final judgment or portion thereof rendered against the City Indemnitees. City agrees to indemnify, defend and hold DSUSD and its officers, employees, agents, representatives, and assigns (“DSUSD Indemnitees”) harmless from and against any losses, claims, demands, actions, or causes of action, of any nature whatsoever, arising out of or in any way connected with the performance of City, its officers, employees, agents, or representatives under this Agreement, including costs of suit and reasonable attorneys' fees. In the event the DSUSD Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding in any way involving such losses, claims, demands, actions, or causes of action, City shall provide a defense to the DSUSD Indemnitees, including reasonable attorneys’ fees, incurred in defense of such claim. In addition, City shall be obligated to promptly pay any final judgment or portion thereof rendered against the DSUSD Indemnitees. 2 DOCSOC/1097558v4/022929-0000 9. City Officers and Employees. No officer or employee of City shall be personally liable to DSUSD or any successors in interest in the event of any default or breach by City or for any amount which may become due to DSUSD or their successors in interest or for breach of any obligation of the terms of this Agreement. No officer or employee of DSUSD shall be personally liable to City or any successors in interest in the event of any default or breach by DSUSD or for any amount which may become due to City or their successors in interest or for breach of any obligation of the terms of this Agreement. 10. Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any person shall be in writing and either served personally or sent by prepaid, first-class mail to the address set forth below. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if mailed as provided in this Section. To City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attn: Michael Errante, Director of Public Works To DSUSD: Desert Sands Unified School District 47-950 Dune Palms Road La Quinta, California 92253 Attn: Peggy Davis, Director of Facility Services 11. Assignment of Agreement. The parties hereto may not assign their obligations hereunder to any assignee without the knowledge and consent of the other party hereto which other party shall not unreasonably withhold consent. Assignment may be made only to an assignee willing, financially capable and competent to carry out the assignor’s obligations. 12. General Provisions. (a) Except as otherwise provided herein, the terms, conditions, covenants, and agreements set forth herein shall apply to and bind the heirs, executors, administrators, assigns, and successors of the parties hereto. (b) The parties to this Agreement do not rely upon any warranty or representation not contained in this Agreement. (c) This Agreement shall be governed by and interpreted with respect to the laws of the State of California. (d) Any failure or delay by any party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any rights or remedies provided for herein. (e) This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing signed by the parties. 13. Severability. In the event that any provision or provisions of this Agreement are held unenforceable, all provisions not so held shall remain in full force and effect. 3 DOCSOC/1097558v4/022929-0000 14. Authority of Signatories. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. DISTRICT: DESERT SANDS UNIFIED SCHOOL DISTRICT, a school district organized and existing under the laws of the State of California By: Its: ATTEST: School District Secretary APPROVED AS TO FORM: Stradling Yocca Carlson & Rauth, School District Special Counsel CITY: CITY OF PALM DESERT, a California municipal corporation By: Its: ATTEST: City Clerk APPROVED AS TO FORM: City Attorney 4 DOCSOC/1097558v4/022929-0000 EXHIBIT “A” EXHIBIT “A” DOCSOC/1097558v4/022929-0000 VICINITY MAP Proposed Median Portola Ave at Washington Charter School