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HomeMy WebLinkAboutC27330A-C Portola Avenue-I-10 Interchange 637-02 CITY OF PALM DESERT �ontrzct no. C27330A-C PUBLIC WORKS DEPARTMENT STAFF REPORT REQUEST: Approve Reimbursement Agreements with the Coachella Valley Association of Governments and Approve Cooperative Agreement with Caltrans for the Portola Avenue-Interstate 10 Interchange (Project No. 637-02) SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works APPLICANT: Coachella Association of Governments 73-710 Fred Waring Drive, Suite 200 Palm Desert, CA 92260 DATE: February 28, 2008 CONTENTS: CVAG Reimbursement Agreement for PA/ED Phase CVAG Reimbursement Agreement for Design, Right of Way, and Construction Caltrans Cooperative Agreement Vicinity Map Recommendation: By Minute Motion: 1. Approve the reimbursement agreement between the City of Palm Desert and CVAG for funding the Project Approval/Environmental Document Phase of the Portola Avenue-Interstate 10 Interchange Project, in an amount not to exceed $1,500,000, and authorize the Mayor to execute the agreement; 2. Approve the reimbursement agreement between the City and CVAG for funding the Design, Right-of-Way Acquisition and Construction Phases of the Portola Interstate Project, in the amount of $54,075,000, and authorize the Mayor to execute the agreement; 3. Approve the Cooperative Agreement between the City and Caltrans that outlines the roles and responsibilities of both agencies for the Project Approval, Design, and Right-of-Way Acquisition Phases of the Portola Avenue-Interstate 10 Interchange Project and authorize the Mayor to execute the agreement. Portola/I-10 Interchange-Status Report and Approval of Agreements Page 2 of 4 February 28, 2008 Discussion: On December 8, 2005, City Council approved Contract No. C24660 in the amount of $739,839 with Dokken Engineering to complete the Project Report and Environmental Documentation Phase for the proposed new interchange on Interstate 10 (I-10) at Portola Avenue. There are two main issues in the development of the project that are being addressed by staff and the consultant: 1) the approval of a new connection at this location on I-10 by Caltrans and the Federal Highway Administration, and 2) the increase in cost of the project and the additional funds required to complete the project. The draft New Connection Report was prepared by Dokken Engineering and recently submitted to Caltrans for review. The final New Connection Report is scheduled to be submitted to the FHWA in Washington D.C. in March 2008 and will take four to six months to receive approval. In the past few years, FHWA has increased its scrutiny of any proposed new interchange on an Interstate highway. The Project Study Report prepared by Caltrans in April 2005, established the cost of the project at approximately $50 million. This estimate includes design, right-of-way acquisition, and construction costs. The updated Project Report estimate prepared by Dokken Engineering for the project is approximately $72 million. The primary reasons for the increase in estimated project cost are: • The 3% yearly inflation cost applied to the construction cost to year of construction. • The significant increase in structural concrete costs due to unprecedented inflation of concrete and steel. • The addition of 24 feet bridge width to accommodate eastbound and westbound turn lanes to I-10 as recommended in the approved traffic study. • Increased right-of-way acquisition costs due to inflation and addition of turn lanes on realigned Varner road as recommended in the approved traffic study. The project is programmed to receive 75% funding from CVAG and has received $1.2 million in STP Local Funds. The City has also budgeted $12.5 million in RDA funds. This results in an approximate $4.5 million funding shortfall. Staff has been lobbying and requesting federal and county funds. Staff has recently met with Congresswoman Mary Bono Mack's staff and submitted a Fiscal Year 2009 Appropriation Request Form. Staff has also met with County Engineering staff to discuss funding opportunities. However, the federal and state funding picture looks in the near future to be very bleak. Staff will continue to pursue funding from these and other sources. Portola/I-10 Interchange-Status Report and Approval of Agreements Page 3 of 4 February 28, 2008 The following is the current schedule for completion of the project: Milestone Date Complete Project Report and Environmental Documentation 04/01/09 Begin Final Design 08/01/08 Acquire Right-of-Way 01/01/11 Complete Design 01/01/11 Advertise for Bids 02/01/11 Begin Construction 08/01/11 Complete Construction 08/01/13 CVAG Reimbursement Agreements On February 26, 2007, the CVAG Executive Committee authorized an Interchange Preparation Fund to support the concept of preparing freeway interchanges for project readiness. The Portola Avenue Interstate 10 Interchange project qualifies for this fund. CVAG's participation on this project is limited to 75% of the cost of the Project Approval/Environmental Document Phase of the project in a not-to-exceed amount of $1.5 million. The attached agreement between the City and CVAG establishes the various criteria under which the reimbursement will occur. Therefore, staff recommends that City Council approve and authorize the Mayor to execute the reimbursement agreement. The attached agreement between the City and CVAG establishes the various criteria under which the reimbursement will occur for project design, right-of-way acquisition, and construction costs. The agreement provides for reimbursement of 75% of project costs in an amount not to exceed $54,075,000. The agreement identifies that the project will receive funding in Fiscal Year 2012/2013, upon availability of funds. There may be, however, the opportunity to receive advance funding to meet the current project schedule. Staff, therefore, recommends that City Council approve and authorize the Mayor to execute the reimbursement agreement. Caltrans Cooperative Agreement The attached Cooperative Agreement between the City and Caltrans outlines the roles and responsibilities for the Project Approval/Environmental Documentation, Final Design, and Right-of-Way Acquisition Phases of the project. A future cooperative agreement will be executed for the Construction Phase. Staff recommends that City Council approve and authorize the Mayor to execute the agreement. Portola/I-10 Interchange-Status Report and Approval of Agreements Page 4 of 4 February 28, 2008 Prepared By: Departme t e . . 1-_ Joh . Garcia, P.E. Mark Greenwood, P.E. Engineering Manager Director of Public Works Approva : Homer Croy Paul Gibson ACM for D e pment Services Finance Director Carlos L. rt City Manager CITY COUIa1CIL A,QTiOIv: APPROVED �/ DENIED RECSIVEA U�'H�R MEB�'TP�,�� :��'i�� , .�> —.__�__ AYES o �' , rYl :���f�"= C�r�,� � ��SC�-�'� ri�dES: � ��SEN'�.'• �"- ._— �`�BSTAI�3 a__�Y� _ VERIFIED BY: Oric�inal on Fi1e wit Ci�;y Cl�rk's nfficP r� . Contract No. C27330A CVAG - CITY OF PALM DESERT REIMBURSEMENT AGREEMENT PORTOLA AVENUE/ INTERSTATE 10 INTERCHANGE PROJECT PROJECT APPROVAL/ ENVIRONMENTA! DOCUMENT PHASE THIS AGREEMENT is made and entered into this day of , 2008, by and befinreen the City of Palm Desert ("Agency"), and the Coachella Valley Association of Governments ("CVAG"), a California joint powers agency, and is made with reference to the following background facts and circumstances: The "Coachella Valley Area Transportation Study,"a valley-wide study prepared under the auspices of CVAG, has identified various transportation and highway projects throughout the Coachella Valley as projects of regional importance. These projects are listed in the 2005 Update Transportation Project Prioritization Study document; and Approval of a highway financing measure by the voters of Riverside County in November, 1988, ("Measure A,")as well as the approval of an extension by the voters in November, 2000, has created a source of funds with which to construct such projects; and CVAG by agreement with its member agencies and with the Riverside County Transportation Commission ("RCTC"), has been designated as the agency through which such funds are to be conveyed and disbursed for the purpose of completing said regional transportation projects; and The CVAG Executive Committee, on July 31, 2006, approved the implementation of the amended Transportation Uniform Mitigation Fee ("TUMF") Ordinance to increase the collected TUMF, effective January 1, 2007. Under CVAG's policy of funding eligible projects by member jurisdictions, effective January 1, 2007, a jurisdiction pays one-quarter of the eligible costs (the "Jurisdiction One-Quarter") and CVAG pays the other three-quarters(the"CVAG Three-Quarters"). Historically, the CVAG Three- Quarters has been paid as a reimbursement to the jurisdiction, as invoices are submitted and approved. CVAG has determined that as to member jurisdictions that do not participate in the TUMF program, projects will continue to go forward under the existing Reimbursement Policy. The Executive Committee, on February 26, 2007, authorized an Interchange Preparation Fund to support the concept of preparing interchanges for project readiness. This Project is an interchange that will qualify for this Interchange Preparation Fund. CVAG's participation in each interchange project is limited to $1.5 Million. CVAG will pay 75%of this"Project Approval/Environmental Document Phase of the project. Once the Project Study Report has been completed, Agency can approach CVAG with a request to proceed to the Project Report and Environmental Document stage.This staqe will reauire that a fundinq source for construction of the interchanqe be identified before the proiect will be allowed to proceed.This is an important element for continuation of the project since the Environmental Document has only a short shelf life, three to five years. Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page 1 � . Contract No. C27330A In accordance with current policy, CVAG will pay 75% of project costs up to the $1.5 Million amount, and the jurisdiction initiating the request to enter the Interchange Preparation Fund Agreement with Agency will be responsible for the remaining 25%of costs, and any costs in excess of$2 Million. This would be the limit of the proposed Interchange Preparation Fund Agreement. Agency desires to proceed with a project known as Portola Avenue/ Interstate 10 Interchanqe Phase I "Proiect Approval/ Environmental Document" (the "Project"). CVAG's share of the Project costs is not-to-exceed$ 1,500,000. Agency shall only submit the costs related to this Phase of the Project. NOW,THEREFORE,in consideration of the mutual covenants and subject to the conditions contained herein, the parties do agree as follows: 1. The program embodied in this Agreement for the reimbursement of funds by CVAG shall apply only to those regional arterial projects that have heretofore been identified in the CVAG 2005 updated list of projects. The Project is one of those projects and is therefore eligible. The Project is generally described and referred to as Portola Avenue/ Interstate 10 Interchanae Phase I "Proiect Apqroval / Environmental Document", hereinafter the "Project." 2. Any excess property purchased to secure the necessary right-of-way for the Project will be shared between the Agency and the Regional Arterial Program proportionately according to the funding of the purchase by each jurisdiction participating in the project. Excess property will be disposed of in the best interests of the Regional Arterial Program Any recaptured funds will reduce the overall cost of the project. 3. The scope of work for the Project is more particularly described in Exhibit "A,"entitled "Scope of Services,"attached hereto and made a part hereof. The cost estimate for the Project is more particularly described in Exhibit "B," entitled "Estimate of Cost," attached hereto and made a part hereof. The cost estimate includes a calculation intended to allow Agency to recover an amount representing the time of its employed staff in working on the Project, as well as the amount Agency shall pay to outside contractors in connection with the Project. 4. It is the agreement between CVAG and Agency that, of the total estimated cost of the Project, CVAG shall pay not-to-exceed $1,500,0000, and Agency shall pay its remaining Jurisdiction One-Quarter of covered costs,as well as one hundred percent(100%) of all costs not eligible for reimbursement by CVAG. 5. Agency agrees to seek reimbursement of seventy-five percent of only those costs, up to the not-to-exceed limit, which are eligible for reimbursement by CVAG, as outlined in Section IV, "Cost Determination/Expense Eligibility," of the CVAG Policies and Procedures Manual. 5.1 Agency shall be responsible for initial payment of all covered costs as they are incurred. Following payment of such costs,Agency shall submit invoices to CVAG requesting reimbursement of seventy- five percent of those eligible costs associated with the Project. Each Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page 2 Contract No, C27330A invoice shall be accompanied by detailed contractor invoices, or other demands for payment addressed to Agency, and documents evidencing Agency's payment of the invoices or demands for payment. Agency shall also submit a Project Completion Report, in a form acceptable to CVAG, with each statement. Agency shall submit invoices not more often than monthly and not less often than quarterly. 5.2 Agency shall, at the design stage of the Project, identify a project specific ratio"Project Ratio"for the construction phase of the project that distinguish between Capacity Enhancement items, Rehabilitation items or other items. Agency shall apply that"Project Ratio"to the project construction cost and provide CVAG with supporting documents thatwill clearly identify "Capacity EnhancemenY' costs eligible for payment with TUMF, "Rehabilitation" costs eligible for payment with Measure "A", and other costs that are not eligible for reimbursement by CVAG. All Invoices submitted to CVAG for reimbursement, shall include a table identifying "Capacity EnhancemenY' costs eligible for payment with TUMF, "Rehabilitation"costs eligible for payment with Measure "A", and other costs that are not eligible for reimbursement by CVAG. Upon receipt of an invoice from Agency, CVAG may request additional documentation or explanation of the Project costs. Undisputed reimbursement amounts shall be paid by CVAG to Agency within thirty(30) days. 5.2.1 If a post-payment audit or review indicates that CVAG has provided reimbursement to Agency in an amount in excess of the percentage of eligible costs set for this project, or has provided reimbursement of ineligible Project costs, Agency shall reimburse CVAG for the excess or ineligible payments within thirty(30) days of notification by CVAG. 6. Prior to any final payment to Agency by CVAG, a final report shall be submitted to CVAG by Agency containing a record of all payments made for said Project 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. 7. The format used for all bids solicited by Agency for the Project shall require itemization sufficient to allow quantities of each bid item to be easily discernible. It shall be the responsibility of Agency to determine what quantity is for Capacity Enhancement and/or Rehabilitation, and to provide CVAG staff with that information. 8. The parties agree that should unforeseen circumstances arise which result in new work not covered in Exhibit "A," an increase of any costs over those Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page 3 Contract No. C27330A shown in Exhibit"B," or other changes in the Scope of Work are proposed, CVAG will in good faith consider an amendment to this Agreement to provide for further appropriate reimbursement if the proposed amendment is in accordance with the policies, procedures, and cost determination/expense eligibility criteria adopted by CVAG. Non-substantive changes may be made to this agreement subject to CVAG's General Counsel's approval. 9. Agency shall maintain an accounting of all funds received from CVAG pursuant to this Agreement in accordance with generally accepted accounting principles. Agency agrees to keep all Project contracts and records for a period of not less than three years from the date a notice of completion is filed by the Agency on such Project; or, if the Project is not one as to which a notice of completion would normally be recorded, for three years from the date of completion. Agency shall permit CVAG, at any reasonable time, upon reasonable notice, to inspect any records maintained in connection with the Project. 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. 10. The occurrence of any one or more of the following events shall, at CVAG's option, constitute an event of default and Agency shall provide CVAG with immediate notice thereof. 10.1 Any warranty, representation, statement, report or certificate made or delivered to CVAG by Agency or any of Agency's officers, employees or agents now or hereafter which is incorrect,false, untrue or misleading in any material respect; 10.2 Agency 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 Project; or, 10.3 There shall occur any of the following: dissolution, termination of existence or insolvency of Agency; the commencement of any proceeding under any bankruptcy or insolvency law by or against Agency; entry of a court order which enjoins, restrains or in any way prevents Agency from paying sums owed to creditors. 11. No waiver of any Event of Default or breach by one party hereunder shall be implied from any omission by the 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 the other party shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent or similar act. Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page 4 Contract No. C27330A 12. This Agreement is made and entered into for the sole protection and benefit of CVAG and Agency and no third person shall have any right of action under this Agreement. 13. It is the intent of the Agency and CVAG that the Project be represented as being funded by Measure"A"/TUMF funds. All public notices, news releases,and documents shall indicate that the Project is being cooperatively developed by the Agency, RCTC, and CVAG using Measure"A"/TUMF funds. Prior to initiation of on- site construction, Agency agrees to provide at least one"Project Sign"to be placed in a safe and visible location near the site of construction so that all travelers passing the location have the opportunity to observe who the agencies are that are providing funds for the construction of the Project. Exhibit"D,""Project Sign,"provides a guide for Project Sign format. 14. 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 Agency as to the Project. The Agency shall assume the defense of, indemnify and hold harmless CVAG, its member agencies, and their respective o�cers, 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 Agency related to the Project or taken in the performance of this Agreement or any agreement entered into by Agency with reference to the Project. CVAG shall assume the defense of, indemnify and hold harmless the Agency, 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 the actions of CVAG taken in the performance of this Agreement. 15. Agency 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 Agency on each contract. Agency 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. 16. 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 Agency. This decision shall be issued in writing. However, no action in accordance with this Section shall in any way limit either 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 Agency from full and timely performance in accordance with the terms of this Agreement. 17. Any agency receiving federal funds must have an approved Disadvantaaed Business Enterqrise program. All recipients of Federal Highway Administration(FHWA)funds must carry out the provisions of Part 26,Title 49 of the Code of Federal Regulations (CFR) which established the Federal Department of Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page 5 Contract No. C?_7330A Transportation's policy supporting the fullest possible participation of firms owned and controlled by minorities and women in the Department of Transportation programs. Except to the extent that such or other contrary federal regulations may apply, Agency covenants that, by and for itself and all persons claiming under or through it, there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the performance of this Agreement. 18. Agency warrants that all aspects of the Project shall be undertaken in compliance with all applicable local, state and federal rules, regulations and laws. Agency will execute and deliver to CVAG such further documents and do other acts and things as CVAG may reasonably request in order to comply fully with all applicable requirements and to effect fully the purposes of this Agreement. 19. This Agreement may not be assigned without the express written consent of CVAG first being obtained. 20. Agency, its successors in interest and assigns shall be bound by all the provisions contained in this Agreement. 21. No officer or employee of CVAG shall be personally liable to Agency, or any successor in interest, in the event of any default or breach by CVAG or for any amount with may become due to Agency or to its successor, or for breach of any obligation of the terms of this Agreement. 22. 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 from TUMF and/or Measure "A" monies. 23. No officer or employee of CVAG shall have any personal interest, direct or indirect, in this Agreement; nor shall any such officer or employee pa�ticipate 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. 24. Agency warrants that the funds received by CVAG 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. 25. 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: Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page 6 Contract No. C27330A If to Agency: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Attn: City Manager Telephone: (760) 346-0611 FAX No.: (760) 340-0574 If to CVAG: CVAG 73-710 Fred Waring Drive Palm Desert, CA 92260 Attn: Deputy Executive Director Telephone: (760) 346-1127 FAX No.: (760) 340-5949 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 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. 26. This Agreement and the exhibits herein contain 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. 27. 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. 28. In the event either 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. 29. Time is of the essence in this Agreement, and each and every provision hereof in which time is an element. Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page 7 Contract No. C27330A 30. 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, State of California. 31. Agency 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. 32. 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. 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 DESERT By: By: City Clerk Mayor ATTEST: CVAG By: By: John Wohlmuth, Chair Executive Director Executive Committee Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page 8 Contract No. C27330A EXHIBIT "A" SCOPE OF SERVICES "PORTOLA AVENUE/ INTERSTATE 10 INTERCHANGE PROJECT" PROJECT APPROVAL/ENVIRONMENTAL DOCUMENT PHASE The scope of work will consist of preparing a Project Approval/Environmental Document for the Portola Avenue Interstate 10 Interchange Project, and all other needed reports to comply with the latest Caltrans regulations, policies, procedures, manuals and standards including compliance with Federal Highway Administration (FHWA) requirements. The project will be funded using TUMF/Measure"A" Funds. The project will need to be prepared to identify various types of alternatives to determine the most feasible design with regards to traffic demand and right-of-way availability. The alternatives will be acceptable under Caltrans and FHWA guidelines and allow project programming in the RTP and STIP. Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page 9 Contract No. C27330A EXHIBIT "B" ESTIMATE OF COST "PORTOLA AVENUE/ INTERSTATE 10 INTERCHANGE PROJECT" PROJECT APPROVAUENVIRONMENTAL DOCUMENT PHASE (FROM ESTIMATE PROVIDED BY THE CITY OF PALM DESERT) CVAG will only pay for the Project related tasks eligible for reimbursement as outlined in the adopted Project Cost Determination and Expense Eligibility manual. The estimated cost for this phase of the work is $739,839. CVAG's estimated 75% share for this phase of work is $554,879. Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page 10 Contract No. C27330A EXHIBIT "C" PROJECT SCHEDULE "PORTOLA AVENUE/ INTERSTATE 10 INTERCHANGE PROJECT" PROJECT APPROVAL/ENVIRONMENTAL DOCUMENT PHASE Begin PA/ ED Phase 2/13/06 Complete Traffic Studies 5/09/07 Complete New Connection Report 7/17/08 Complete Project Report 7/17/08 Complete Environmental Document 4/01/09 Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page 11 Contract No. C27330A EXHIBIT "D" NOT NEEDED FOR THIS PHASE OF THE PROJECT "PROJECT SIGN" "PORTOLA AVENUE/ INTERSTATE 10 INTERCHANGE PROJECT" PROJECT APPROVAL/ENVIRONMENTAL DOCUMENT PHASE The Proiect Si4n shall consist of the followinq information: MEASURE "A" PROJECT YOUR TAX DOLLARS AT WORK "PROJECT NAME" FUNDED BY: RIVERSIDE COUNTY TRANSPORTATION COMMISSION/ COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS LEAD AGENCY/AGENCY TOTAL �����%� Other information, such as the City Logos and/or Measure _A_ Funds Logo, is encouraged. Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page 12 Contract No. C27330A ATTACHMENT 1 COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS REGIONAL ARTERIAL PROGRAM PROJECT COST DETERMINATION AND EXPENSE ELIGIBILITY Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page 13 Contract No. C27330A Page14 PROJECT COST DETERMINATION AND EXPENSE ELIGIBILITY TABLE OF CONTENTS SECTION DESCRIPTION 1.0 INTRODUCTION 2.0 COST ESTIMATE DEFINITIONS 3.0 PROJECT IDENTIFICATION 4.0 RIGHT-OF-WAY ACQUISITION 5.0 PROJECT LIMITS 6.0 PROJECT FUNDING SOURCES 7.0 PROJECT SCOPE OF WORK 8.0 PROJECT DESIGN (CIVIL) 9.0 PROJECT DESIGN (LANDSCAPING) 10.0 PROJECT CONSTRUCTION FUNDING 11.0 PROJECT CONSTRUCTION SURVEY 12.0 PROJECT CONSTRUCTION MANAGEMENT 13.0 PROJECT OVERSIGHT -AGENCY TIME 14.0 PROJECT CONTINGENCY FUNDS 15.0 REFERENCE DOCUMENTS Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page14 Contract N0. C27330A Page15 1.0 INTRODUCTION This section of the procedures manual outlines the process which shall be followed in determining project costs and project expense eligibility which has been approved to be constructed as part of the Coachella Valley Regional Transportation Program. This section was developed by the Coachella Valley Association of Governments (CVAG) Transportation Technical Advisory Sub-Committee(TTAS). The primary purpose of this section is to provide a guideline for agencies to make application for a project for both Measure A and Transportation Uniform Mitigation Fee (TUMF)funding. The project development process starts with an agency-initiated study after a highway improvement need has been identified. The estimates for projects identified as part of the Regional Transportation Plan are addressed in the 2005 Update of the Regional Arterial Cost Estimate(RACE), dated February, 2006 and shall be updated biannually as part of the TUMF review process. 2.0 COST ESTIMATE DEFINITIONS ! Construction An updated cost estimate for the costs to build the improvement per the approved plans and specifications. ! Engineering Engineering costs will usually be estimated on the basis of a percentage of the estimated construction costs. ! Right-of-Way Expenditures for right-of-way are to be prepared with an accuracy comparable to standards in the industry. Overhead charges need not be included. ! Scheduling Indicate status of project, giving a tentative schedule for engineering, right-of-way acquisition and construction. Discuss project phasing, if planned. 3.0 PROJECT IDENTIFICATION Any project which is to be submitted for review and funding shall meet or provide all of the following: ! The proposed project shall appear on the approved 2005 Update Transportation Project Prioritization Study updated list of projects. ! The project shall be clearly identified showing, as a minimum, the limits of the project, scope of work, anticipated start and completion dates, estimated project cost and funding sources. ! A general statement of the project. Why it is needed, etc. ! A preliminary design estimate for all design services. ! A preliminary construction cost estimate, to be updated once design is completed. ! A preliminary construction management and Agency project management cost estimate. 4.0 RIGHT-OF-WAY ACQUISITION AND OTHER ASSOCIATED COSTS All right-of-way acquisition and other associated costs, including appraisals and any other costs allowed by state and federal law, are eligible for regional funding. Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page15 Contract No. C27330A Page16 The agency will further submit a detailed list of costs associated with the right-of-way acquisition to CVAG for review and comment. CVAG will assess each cost and determine its eligibility for regional funding. All protests shall be sent to the Transportation Technical Advisory Sub- Committee for further review. All protests must be in writing and the grounds for protest clearly identified. Where the likelihood of extensive right-of-way acquisition exists or the need for extensive relocation of homes and businesses, or in the case of new roadway extensions or openings or other extenuating physically or economical restraints so warrant, preliminary engineering, alignment and traffic studies shall be eligible for reimbursement or funding from regional funds. "Any excess property purchased to secure the necessary right-of-way for the Project will be shared befinreen the Agency and the Regional Arterial Program proportionately according to the funding of the purchase by each jurisdiction participating in the project. Excess property will be disposed of in the best interests of the Regional Arterial Program, in order to recapture funds expended. Any recaptured funds will reduce the overall cost of the projecY'. 5.0 PROJECT LIMITS The lead agency submitting a proposed project for review and funding shall clearly identify the project limits. The limits of the project shall be defined as the beginning and the end of the construction. If more than one beginning and/or ending is necessary, clearly indicate that on the statement of the project limits. A vicinity map shall be included with the project submittal package identifying where the project is located. 6.0 PROJECT FUNDING SOURCE Project funding will come from both regional Measure A revenues and TUMF collected by CVAG member agencies. Other sources of funding may include local funds from the agency proposing the project, local gas tax funds, ISTEA funds, redevelopment funds, etc. All funding sources should be considered by the agency prior to project submittal to CVAG for funding from the Regional system funds. CVAG will advance fund, for TUMF jurisdictions, a project up to 100% of the total approved, eligible, estimated project cost. Project contingency funds will not be funded. However, any additional costs incurred due to any change in scope of work may be submitted to CVAG for funding eligibility, and will be processed through CVAG's committee structure for approval. Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page16 Contract No. C27330A Page17 7.0 PROJECT SCOPE OF WORK A project scope of work narrative shall be submitted to CVAG with the submittal for expense eligibility and regional funding. The narrative shall include, but not be limited to, discussion of the following: ! Right-of-Way Acquisition and Relocation ! Project limits ! Typical roadway improvement section ! Vicinity map for project location identification ! Anticipated starting date - Engineering, R-O-W Acquisition and Construction ! Anticipated completion date - Engineering, R-O-W Acquisition and Construction ! Anticipated funding amount 8.0 PROJECT DESIGN (CIVIL} The project design is the sole responsibility of the agency and/or agencies which are proposing and constructing the project. However, the design and construction standards as outlined in the Regional Arterial Cost Estimate (RACE), 2005 Update, shall be a guideline to be used by the designer for project design and construction standards. Any deviations should be identified, along with the rationale for such deviations. The total project design services shall not exceed in cost 10% of the estimated construction costs, or as determined by CVAG. 9.0 PROJECT DESIGN (LANDSCAPING) The following is a narrative of the landscape improvements which shall or shall not be eligible for regional funding: ! All new landscaping, electrical and irrigation work shall NOT be eligible for regional funding. ! Only new utility sleeves which are to be placed below the roadway surface for future use shall be eligible for regional funding. Additionally, any existing landscaping, electrical and irrigation which is directly affected by the project shall be eligible for funding providing it is replaced "in kind". 10.0 PROJECT CONSTRUCTION FUNDING All regionally funded agency project construction will consist of furnishing all materials, equipment, labor,tools and incidentals as required to construct the improvements as required by the approved plans, specifications and contract documents. "Curb-to-curb" improvements are eligible for funding, with the exception of landscaping. (See section 9.0 for further detail on landscaping.) "Curb-to-curb" improvements include asphalt paving, striping, curb, etc. Sidewalks, bus-turnouts,�+IEe�►es, etc. are not eligible for Regional Arterial funding. Exception: One sidewalk (as of October 30,2000)will be eligible for Regional Arterial funding if it crosses a(n): Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page17 Contract No. C27330A Page18 1. Regional Arterial Bridge 2. Interstate 10 Interchange 3. Interstate 86 Interchange All regionally funded agency projects will comply with the prevailing rates of wages and apprenticeship employment standards established by the State Director of Industrial Relations. Any agency receiving federal funds must have an approved Disadvantaqed Business Enterprise program. All recipients of Federal Highway Administration (FHWA) funds must carry out the provisions of Part 26, title 49 of the Code of Federal Regulations (CFR)which established the Federal Department of Transportation's policy supporting the fullest possible participation of firms owned and controlled by minorities and women in the Department of Transportation programs. All regionally funded project bids shall be prepared on the approved agency proposal forms in conformance with the instructions to bidders. All approved regional construction projects will be funded to 100% of the lesser of the following: ! CVAG approved project construction cost estimate. ! The lowest responsible bidder's award. 11.0 PROJECT CONSTRUCTION SURVEY Construction survey is defined as all surveying and construction staking necessary for the construction of the project as determined by the engineer. The cost of any additional surveying and/or construction staking primarily for the convenience of the contractor, not in conformance with usual and customary practices and for replacement of stakes lost as a result of the contractor's or agencys negligence, shall be the responsibility of the contractor and/or agency. The agency shall be responsible for all resetting of monumentation within public and/or private right-of-way that is destroyed by the construction operations unless it is itemized in the approved construction survey estimate. 12.0 PROJECT CONSTRUCTION MANAGEMENT Project construction management costs shall be eligible for regional funding only if it is to fund one or more of the following: ! Construction inspection ! Materials testing ! Project management ! Construction Survey ! Geotechnical studies and reports ! Contract administration The activities set forth above shall be eligible for regional funding based upon actual costs provided the total sum does not exceed 15% of the approved estimated construction costs. 13.0 PROJECT OVERSIGHT-AGENCY TIME Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page18 Contract No. C27330A Page19 Project cost estimates should include an amount intended to allow Agency to recover an amount representing the costs incurred for the time of its employed staff in working on the project.These amounts shall be eligible for regional funding based upon actual costs provided the total sum does not exceed 5% of the approved estimated project costs. 14.0 PROJECT CONTINGENCY FUNDS Project contingency funds shall not be granted at the beginning of a project. If a change in scope or design creates a need for a change order which may require additional funds,the agency shall make application with CVAG for expense eligibiliryfrom regional funds. Actual cost incurred shall only be eligible for funding. 15.0 REFERENCE DOCUMENTS 2005 Update Transportation Project Prioritization Study(TPPS), February 2006 2005 Update Regional Arterial Cost Estimate (RACE), February 2006 Regional Arterial Financial Plan and Expenditure Program, November 1994 Coachella Valley Area Transportation Study, 2003 Portola Avenue I-10 Interchange Project Approval/Environmental Document— November 2007 Page19 • � � Contract No. C27330B CVAG - CITY OF PALM DESERT FUTURE (FISCAL YEAR 2012/2013) REIMBURSEMENT AGREEMENT "PORTOLA AVENUE/ INTERSTATE 10 INTERCHANGE DESIGN, RIGHT-OF-WAY & CONSTRUCTION THIS AGREEMENT is made and entered into this day of , 2008, by and between the City of Palm Desert ("Agency"), and the Coachella Valley Association of Governments ("CVAG"), a California joint powers agency, and is made with reference to the following background facts and circumstances: The "Coachella Valley Area Transportation Study," a valley-wide study prepared under the auspices of CVAG, has identified various transportation and highway projects throughout the Coachella Valley as projects of regional importance. These projects are listed in the 2005 Update Transportation Project Prioritization Study document; and Approval of a highway financing measure by the voters of Riverside County in November, 1988, ("Measure A,") as well as the approval of an extension by the voters in November, 2000, has created a source of funds with which to construct such projects; and CVAG by agreement with its member agencies and with the Riverside County Transportation Gommission ("RCTC"), has been designated as the agency through which such funds are to be conveyed and disbursed for the purpose of completing said regional transportation projects; and The CVAG Executive Committee, on July 31, 2006, approved the implementation of the amended Transportation Uniform Mitigation Fee ("TUMF") Ordinance to increase the collected TUMF, effective January 1, 2007. Under CVAG's policy of funding eligible projects by member jurisdictions, effective January 1, 2007, a jurisdiction pays one-quarter of the eligible costs (the "Jurisdiction One-Quarter") and CVAG pays the other three-quarters (the "CVAG Three- Quarters"). Historically, the CVAG Three-Quarters has been paid as a reimbursement to the jurisdiction, as invoices are submitted and approved. CVAG has determined that as to member jurisdictions that do not participate in the TUMF program, projects will continue to go forward under the existing Reimbursement Policy. Agency desires to proceed with a project known as "Portola Avenue/ Interstate 10 Interchanqe" (the "Project"). The total estimated project cost is $72,100,000, of which the City of Palm Desert is responsible for 25%. CVAG's share is 75% of project cost. ' Contract No. C27330B NOW, THEREFORE, in consideration of the mutual covenants and subject to the conditions contained herein, the parties do agree as follows: 1. The program embodied in this Agreement for the reimbursement of funds by CVAG shall apply only to those regional arterial projects that have heretofore been identified in the CVAG 2005 updated list of projects. The Project is one of those projects and is therefore eligible. This project will receive future funding in Fiscal Year 2012/2013 contingent upon the availability of funds. 2. The Project is generally described and referred to as "Portola Avenue/ Interstate 10 Interchanqe", hereinafter the "Project." 3. Any excess property purchased to secure the necessary right-of-way for the Project will be deemed to belong to the Regional Arterial Program. Excess property will be disposed of in the best interests of the Regional Arterial Program in order to recapture funds expended. 4. The scope of work for the Project is more particularly described in Exhibit "A," entitled "Scope of Services," attached hereto and made a part hereof. The cost estimate for the Project is more particularly described in Exhibit "B," entitled "Estimate of Cost," attached hereto and made a part hereof. The cost estimate includes a calculation intended to allow Agency to recover an amount representing the time of its employed staff in working on the Project, as well as the amount Agency shall pay to outside contractors in connection with the Project. Subject to the terms herein and all applicable rules regarding allowed costs, the amount of the Jurisdiction One-Quarter and the CVAG Three-Quarters shall be calculated by reference to the cost estimates as shown on Exhibit "B." Exhibit "C," attached hereto and made a part hereof, is the "Project Schedule." 5. It is the agreement between CVAG and Agency that, of the total Agency share for the cost of the Project ($72,100,000), CVAG shall pay not-to-exceed $54,075,000, and Agency shall pay its remaining Jurisdiction One-Quarter of covered costs, as well as one hundred percent (100%) of all costs not eligible for reimbursement by CVAG. 6. Agency agrees to seek reimbursement of seventy-five percent of only those costs, up to the not-to-exceed limit, which are eligible for reimbursement by CVAG, as outlined in Section IV, "Cost Determination/Expense Eligibility," of the CVAG Policies and Procedures Manual. 6.1 Agency shall be responsible for initial payment of all covered costs as they are incurred. Following payment of such costs, Agency shall submit invoices to CVAG requesting reimbursement of seventy-five percent of those eligible costs associated with the Project. Each invoice shall be accompanied by detailed contractor invoices, or other demands for payment addressed to Agency, and documents evidencing Agency's payment of the invoices or demands for payment. Agency shall also submit a Project Completion Report, in a form acceptable to CVAG, with each statement. Agency shall submit invoices not more often than monthly and not less often than quarterly. Contract No. C27330B 6.2 Agency shall, at the design stage of the Project, identify a project specific ratio "Project Ratio" for the construction phase of the project that distinguish between Capacity Enhancement items, Rehabilitation items or other items. Agency shall apply that "Project Ratio" to the project construction cost and provide CVAG with supporting documents that will clearly identify "Capacity Enhancement" costs eligible for payment with TUMF, "Rehabilitation" costs eligible for payment with Measure "A", and other costs that are not eligible for reimbursement by CVAG. All Invoices submitted to CVAG for reimbursement, shall include a table identifying "Capacity EnhancemenY' costs eligible for payment with TUMF, "Rehabilitation" costs eligible for payment with Measure "A", and other costs that are not eligible for reimbursement by CVAG. 6.3 Upon receipt of an invoice from Agency, CVAG may request additional documentation or explanation of the Project costs. Undisputed reimbursement amounts shall be paid by CVAG to Agency within thirty (30) days. 6.4 If a post-payment audit or review indicates that CVAG has provided reimbursement to Agency in an amount in excess of seventy-five percent of eligible costs, or has provided reimbursement of ineligible Project costs, Agency shall reimburse CVAG for the excess or ineligible payments within thirty (30) days of notification by CVAG. 7. Prior to any final payment to Agency by CVAG, a final report shall be submitted to CVAG by Agency containing a record of all payments made for said Project 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. 8. The format used for all bids solicited by Agency for the Project shall require itemization sufficient to allow quantities of each bid item to be easily discernible. It shall be the responsibility of Agency to determine what quantity is for Capacity Enhancement and/or Rehabilitation, and to provide CVAG staff with that information. 9. The parties agree that should unforeseen circumstances arise which result in new work not covered in Exhibit "A," an increase of any costs over those shown in Exhibit "B," or other changes in the Scope of Work are proposed, CVAG will in good faith consider an amendment to this Agreement to provide for further appropriate reimbursement if the proposed amendment is in accordance with the policies, procedures, and cost determination/expense eligibility criteria adopted by CVAG. 10. Agency shall maintain an accounting of all funds received from CVAG pursuant to this Agreement in accordance with generally accepted accounting principles. Agency agrees to keep all Project contracts and records for a period of not less than three years from the date a notice of completion is filed by the Agency on such Contract No. C27330B Project; or, if the Project is not one as to which a notice of completion would normally be recorded, for three years from the date of completion. Agency shall permit CVAG, at any reasonable time, upon reasonable notice, to inspect any records maintained in connection with the Project. 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. 11. The occurrence of any one or more of the following events shall, at CVAG's option, constitute an event of default and Agency shall provide CVAG with immediate notice thereof. 11.1 Any warranty, representation, statement, report or certificate made or delivered to CVAG by Agency or any of Agency's officers, employees or agents now or hereafter which is incorrect, false, untrue or misleading in any material respect; 11.2 Agency 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 Project; or 11.3 There shall occur any of the following: dissolution, termination of existence or insolvency of Agency; the commencement of any proceeding under any bankruptcy or insolvency law by or against Agency; entry of a court order which enjoins, restrains or in any way prevents Agency from paying sums owed to creditors. 12. No waiver of any Event of Default or breach by one party hereunder shall be implied from any omission by the 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 the other party shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent or similar act. 13. This Agreement is made and entered into for the sole protection and benefit of CVAG and Agency and no third person shall have any right of action under this Agreement. 14. It is the intent of the Agency and CVAG that the Project be represented as being funded by Measure "A"/TUMF funds. All public notices, news releases, and documents shall indicate that the Project is being cooperatively developed by the Agency, RCTC, and CVAG using Measure "A"/TUMF funds. Prior to initiation of on-site construction, Agency agrees to provide at least one "Project Sign" to be placed in a safe and visible location near the site of construction so that all travelers passing the location have the opportunity to observe who the agencies are that are providing funds for the construction of the Project. Exhibit "D," "Project Sign," provides a guide for Project Sign format. Contract No. C27330B 15. 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 Agency as to the Project. The Agency 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 Agency related to the Project or taken in the performance of this Agreement or any agreement entered into by Agency with reference to the Project. CVAG shall assume the defense of, indemnify and hold harmless the Agency, 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 the actions of CVAG taken in the performance of this Agreement. 16. Agency 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 Agency on each contract. Agency 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. 17. 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 Agency. This decision shall be issued in writing. However, no action in accordance with this Section shall in any way limit either 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 Agency from full and timely performance in accordance with the terms of this Agreement. 18. Any agency receiving federal funds must have an approved Disadvantaqed Business Enterqrise program. All recipients of Federal Highway Administration (FHWA) funds must carry out the provisions of Part 26, Title 49 of the Code of Federal Regulations (CFR) which established the Federal Department of Transportation's policy supporting the fullest possible participation of firms owned and controlled by minorities and women in the Department of Transportation programs. Except to the extent that such or other contrary federal regulations may apply, Agency covenants that, by and for itself and all persons claiming under or through it, there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the performance of this Agreement. 19. Agency warrants that all aspects of the Project shall be undertaken in compliance with all applicable local, state and federal rules, regulations and laws. Agency will execute and deliver to CVAG such further documents and do other acts and things as CVAG may reasonably request in order to comply fully with all applicable requirements and to effect fully the purposes of this Agreement. Contract No. C27330B 20. This Agreement may not be assigned without the express written consent of CVAG first being obtained. 21. Agency, its successors in interest and assigns shall be bound by all the provisions contained in this Agreement. 22. No officer or employee of CVAG shall be personally liable to Agency, or any successor in interest, in the event of any default or breach by CVAG or for any amount with may become due to Agency or to its successor, or for breach of any obligation of the terms of this Agreement. 23. 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 from TUMF and/or Measure "A" monies. 24. No officer or employee of CVAG 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. 25. Agency warrants that the funds received by CVAG pu�suant 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. 26. 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 Agency: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Attn: City Manager Telephone: (760) 346-0611 FAX No.: (760) 340-0574 If to CVAG: CVAG 73-710 Fred Waring Drive Palm Desert, CA 92260 Attn: Deputy Executive Director Telephone: (760) 346-1127 FAX No.: (760) 340-5949 • Contract No. C27330B 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 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. 27. This Agreement and the exhibits herein contain 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. 28. 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. 29. In the event either 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. 30. Time is of the essence in this Agreement, and each and every provision hereof in which time is an element. 31. 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, State of California. 32. Agency 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. 33. 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. Contract No. C27330B 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 DESERT By: BY� City Clerk Mayor ATTEST: CVAG By: BY� John Wohlmuth, Chair Executive Director Executive Committee Contract No. C27330B EXHIBIT "A" SCOPE OF SERVICES FUTURE (FISCAL YEAR 2012/2013) REIMBURSEMENT AGREEMENT "PORTOLA AVENUE/ INTERSTATE 10 INTERCHANGE DESIGN, RIGHT-OF-WAY 8� CONSTRUCTION CVAG will only pay for improvements eligible for reimbursement as outlined in the adopted Project Cost Determination and Expense Eligibility manual. The City of Palm Desert is requesting funding support from CVAG for improvement to Portola Interstate 10 Interchange project. The project is programmed for funding in FY 2012-2013. This project is currently in the Project Approval/Environmental Documentation (PA/ED) phase. • Contract No. C27330B EXHIBIT "B" ESTIMATE OF COST FUTURE (FISCAL YEAR 2012/2013) REIMBURSEMENT AGREEMENT "PORTOLA AVENUE/ INTERSTATE 10 INTERCHANGE DESIGN, RIGHT-OF-WAY 8� CONSTRUCTION (FROM ESTIMATE PROVIDED BY THE CITY OF PALM DESERT) Roadway Items $21,301,000 Structure Items $33,348,000 Construction Cost $54,649,000 Right-of-Way Cost $11,442,000 Support Cost $ 5,973,000 Total Project Cost $72,100,000 CVAG Share @75% $54,075,000 Contract No. C27330B EXHIBIT "C" PROJECT SCHEDULE FUTURE (FISCAL YEAR 2012/2013) REIMBURSEMENT AGREEMENT "PORTOLA AVENUE/ INTERSTATE 10 INTERCHANGE DESIGN, RIGHT-OF-WAY 8� CONSTRUCTION Begin Final Design 8/1/2008 Begin Right of Way Acquisition 4/1/2009 Right of Way Certification 1/120/11 Complete PS�E 1/1/2011 Advertise for Bids 2/1/2011 Begin Construction 8/1/2011 Complete Construction 8/1/2013 • Contract No. C27330B EXHIBIT "D" "PROJECT SIGN" FUTURE (FISCAL YEAR 2012/2013) REIMBURSEMENT AGREEMENT "PORTOLA AVENUE/ INTERSTATE 10 INTERCHANGE DESIGN, RIGHT-OF-WAY 8� CONSTRUCTION The Project Siqn shall consist of the followinq information: M EAS U RE"A" P ROJ E CT YOUR TAX DOLLARS AT WORK "PROJECT NAME" FUNDED BY: i RIVERSIDE COUNTY TRANSPORTATION COMMISSION/ COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS LEAD AGENCY/AGENCY TOTAL $ x.xxx.xxx Other information, such as the City Logos and/or Measure "A" Funds Logo, is encouraged. � Contract No. C7_7330B ATTACHMENT 1 COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS REGIONAL ARTERIAL PROGRAM PROJECT COST DETERMINATION AND EXPENSE ELIGIBILITY Page 13 Contract No. C27330B PROJECT COST DETERMINATION AND EXPENSE ELIGIBILITY TABLE OF CONTENTS SECTION DESCRIPTION 1.0 INTRODUCTION 2.0 COST ESTIMATE DEFINITIONS 3.0 PROJECT IDENTIFICATION 4.0 RIGHT-OF-WAY ACQUISITION 5.0 PROJECT LIMITS 6.0 PROJECT FUNDING SOURCES 7.0 PROJECT SCOPE OF WORK 8.0 PROJECT DESIGN (CIVIL) 9.0 PROJECT DESIGN (LANDSCAPING) 10.0 PROJECT CONSTRUCTION FUNDING 11.0 PROJECT CONSTRUCTION SURVEY 12.0 CONSTRUCTION MANAGEMENT 13.0 PROJECT OVERSIGHT - AGENCY TIME 14.0 PROJECT CONTINGENCY FUNDS 15.0 REFERENCE DOCUMENTS Page 14 Contract No. C27330B 1.0 INTRODUCTION This section of the procedures manual outlines the process which shall be followed in determining project costs and project expense eligibility which has been approved to be constructed as part of the Coachella Valley Regional Transportation Program. This section was developed by the Coachella Valley Association of Governments (CVAG) Transportation Technical Advisory Sub-Committee (TTAS). The primary purpose of this section is to provide a guideline for agencies to make application for a project for both Measure A and Transportation Uniform Mitigation Fee (TUMF) funding. The project development process starts with an agency-initiated study after a highway improvement need has been identified. The estimates for projects identified as part of the Regional Transportation Plan are addressed in the 2005 Update of the Regional Arterial Cost Estimate (RACE), dated February, 2006 and shall be updated biannually as part of the TUMF review process. 2.0 COST ESTIMATE DEFINITIONS , Construction An updated cost estimate for the costs to build the improvement per the approved plans and specifications. . Engineering Engineering costs will usually be estimated on the basis of a percentage of the estimated construction costs. , Right-of-Way Expenditures for right-of-way are to be prepared with an accuracy comparable to standards in the industry. Overhead charges need not be included. , Scheduling Indicate status of project, giving a tentative schedule for engineering, right-of-way acquisition and construction. Discuss project phasing, if planned. 3.0 PROJECT IDENTIFICATION Any project which is to be submitted for review and funding shall meet or provide all of the following: . The proposed project shall appear on the approved 2005 Update Transportation Project Prioritization Study updated list of projects. , The project shall be clearly identified showing, as a minimum, the limits of the project, scope of work, anticipated start and completion dates, estimated project cost and funding sources. . A general statement of the project. Why it is needed, etc. Page 15 Contract No. C27330B . A preliminary design estimate for all design services. , A preliminary construction cost estimate, to be updated once design is completed. . A preliminary construction management and Agency project management cost estimate. 4.0 RIGHT-OF-WAY ACQUISITION AND OTHER ASSOCIATED COSTS All right-of-way acquisition and other associated costs, including appraisals and any other costs allowed by state and federal law, are eligible for regional funding. The agency will further submit a detailed list of costs associated with the right-of-way acquisition to CVAG for review and comment. CVAG will assess each cost and determine its eligibility for regional funding. All protests shall be sent to the Transportation Technical Advisory Sub-Committee for further review. All protests must be in writing and the grounds for protest clearly identified. Where the likelihood of extensive right-of-way acquisition exists or the need for extensive relocation of homes and businesses, or in the case of new roadway extensions or openings or other extenuating physically or economical restraints so warrant, preliminary engineering, alignment and traffic studies shall be eligible for reimbursement or funding from regionat funds. Any excess property purchased to secure the necessary right-of-way will be deemed to belong to the Regional Arterial Program. Excess property will be disposed of in the best interests of the Regional Arterial Program, in order to recapture funds expended. Any recaptured funds will reduce the overall cost of the project. 5.0 PROJECT LIMITS The lead agency submitting a proposed project for review and funding shall clearly identify the project limits. The limits of the project shall be defined as the beginning and the end of the construction. If more than one beginning and/or ending is necessary, clearly indicate that on the statement of the project limits. A vicinity map shall be included with the project submittal package identifying where the project is located. 6.0 PROJECT FUNDING SOURCE Project funding will come from both regional Measure A revenues and TUMF collected by CVAG member agencies. Other sources of funding may include local funds from the agency proposing the project, local gas tax funds, ISTEA funds, redevelopment funds, etc. All funding sources should be considered by the agency prior to project submittal to CVAG for funding from the Regional system funds. CVAG will advance fund, for TUMF jurisdictions, a project up to 100% of the total approved, eligible, estimated Page 16 � Contract No. C27330B project cost. Project contingency funds will not be funded. However, any additional costs incurred due to any change in scope of work may be submitted to CVAG for funding eligibility, and will be processed through CVAG's committee structure for approval. Yage 17 Contract No. C27330B 7.0 PROJECT SCOPE OF WORK A project scope of work narrative shall be submitted to CVAG with the submittal for expense eligibility and regional funding. The narrative shall include, but not be limited to, discussion of the following: . Right-of-Way Acquisition and Relocation . Project limits , Typical roadway improvement section . Vicinity map for project location identification , Anticipated starting date - Engineering, R-O-W Acquisition and Construction , Anticipated completion date - Engineering, R-O-W Acquisition and Construction . Anticipated funding amount 8.0 PROJECT DESIGN (CIVIL) The project design is the sole responsibility of the agency and/or agencies which are proposing and constructing the project. However, the design and construction standards as outlined in the Regional Arterial Cost Estimate (RACE), 2005 Update, shall be a guideline to be used by the designer for project design and construction standards. Any deviations should be identified, along with the rationale for such deviations. The total project design services shall not exceed in cost 10% of the estimated construction costs, or as determined by CVAG. 9.0 PROJECT DESIGN (LANDSCAPING) The following is a narrative of the landscape improvements which shall or shall not be eligible for regional funding: , All new landscaping, electrical and irrigation work shall NOT be eligible for regional funding. . Only new utility sleeves which are to be placed below the roadway surface for future use shall be eligible for regional funding. Additionally, any existing landscaping, electrical and irrigation which is directly affected by the project shall be eligible for funding providing it is replaced "in kind". 10.0 PROJECT CONSTRUCTION FUNDING All regionally funded agency project construction will consist of furnishing all materials, equipment, labor, tools and incidentals as required to construct the improvements as required by the approved plans, specifications and contract documents. Yage 18 . Contract no. C?7330B "Curb-to-curb" improvements are eligible for funding, with the exception of landscaping. (See section 9.0 for further detail on landscaping.) "Curb-to-curb" improvements include asphalt paving, striping, curb, etc. Sidewalks, bus-turnouts, bilEe�a�es, etc. are not eligible for Regional Arterial funding. Exception: One sidewalk (as of October 30, 2000) will be eligible for Regional Arterial funding if it crosses a(n): 1. Regional Arterial Bridge 2. Interstate 10 Interchange 3. Interstate 86 Interchange All regionally funded agency projects will comply with the prevailing rates of wages and apprenticeship employment standards established by the State Director of Industrial Relations. Any agency receiving federal funds must have an approved Disadvantaqed Business Enterprise program. All recipients of Federal Highway Administration (FHWA) funds must carry out the provisions of Part 26, title 49 of the Code of Federal Regulations (CFR) which established the Federal Department of Transportation's policy supporting the fullest possible participation of firms owned and controlled by minorities and women in the Department of Transportation programs. All regionally funded project bids shall be prepared on the approved agency proposal forms in conformance with the instructions to bidders. All approved regional construction projects will be funded to 100% of the lesser of the following: , CVAG approved project construction cost estimate. . The lowest responsible bidder's award. 11.0 PROJECT CONSTRUCTION SURVEY Construction survey is defined as all surveying and construction staking necessary for the construction of the project as determined by the engineer. The cost of any additional surveying and/or construction staking primarily for the convenience of the contractor, not in conformance with usual and customary practices and for replacement of stakes lost as a result of the contractor's or agency's negligence, shall be the responsibility of the contractor and/or agency. The agency shall be responsible for all resetting of monumentation within public and/or private right-of-way that is destroyed by the construction operations unless it is itemized in the approved construction survey estimate. 12.0 PROJECT CONSTRUCTION MANAGEMENT Pagel9 Contract No. C27330B Project construction management costs shall be eligible for regional funding only if it is to fund one or more of the following: , Construction inspection , Materials testing . Project management . Construction Survey , Geotechnical studies and reports Contract administration The activities set forth above shall be eligible for regional funding based upon actual costs provided the total sum does not exceed 15% of the approved estimated construction costs. 13.0 PROJECT OVERSIGHT - AGENCY TIME Project cost estimates should include an amount intended to allow Agency to recover an amount representing the costs incurred for the time of its employed staff in working on the project. These amounts shall be eligible for regional funding based upon actual costs provided the total sum does not exceed 5% of the approved estimated project costs. 14.0 PROJECT CONTINGENCY FUNDS Project contingency funds shall not be granted at the beginning of a project. If a change in scope or design creates a need for a change order which may require additional funds, the agency shall make application with CVAG for expense eligibility from regional funds. Actual cost incurred shall only be eligible for funding. 15.0 REFERENCE DOCUMENTS 2005 Update Transportation Project Prioritization Study (TPPS), February 2006 2005 Update Regional Arterial Cost Estimate (RACE), February 2006 Regional Arterial Financial Plan and Expenditure Program, November 1994 Coachella Valley Area Transportation Study, 2003 Yage20 Contract No. C27330C 08-Riv-10-KP 71.6/73.9 (PM 44.5/45.9) New Interchange at 1-10/Portola Avenue EA OF 1200 District Agrecment No. 8-1352 PROJECT DEVELOPMENT COOPERATIVE AGREEMENT This AGREEMENT, entered into effective on , 2008, is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as "STATE," and the CITY OF PALM DESERT, a body politic and a municipal corporation of the State of California, referred to herein as "CITY." RECITALS 1. STATE and CITY, pursuant to Streets and Highways Code sections 114 and 130, are authorized to enter into a Cooperative Agreement for improvements to the State Highway System (SHS) within CITY's jurisdiction. 2. CITY desires to construct a new interchange on Interstate 10 (I-10)/Portola Avenue in the City of Palm Desert, referred to herein as "PROJECT". 3. CITY is willing to fund one hundred percent(100%) of all capital outlay and support costs, using their local funding sources, except that the costs of STATE's Independent Quality Assurance(IQA) of PROJECT development and Right of Way activities and STATE's costs incurred as the California Environmental Quality Act(CEQA) Lead Agency and National Environmental Policy Act (NEPA) Lead Agency, if applicable, in the review and approval if appropriate of the PROJECT environmental documentation prepared entirely by CITY, will be borne by STATE. 4. STATE funds will not be used to finance any of the PROJECT capital and support costs except as set forth in Recital 3 above. 5. The terms of this Agreement shall supersede any inconsistent terms of any prior Memorandum of Understanding(MOU) or agreement relating to PROJECT. 1 Contract No. C27330C District Agreement No. 8-1352 6. PROJECT landscape maintenance and construction will be the subject of a separatc futurc a��reement or agreements. 7. This Agrecmcnt will definc the roles and responsibilities of the CEQA Lead Agency and CEQA Responsible Agency regarding the environmental documentation, studies, and reports necessary for compliance with CEQA. This Agrcement will also define roles and responsibilities for compliance with NEPA, if applicable. 8. The parties now define herein below the terms and conditions under which PROJEC"C is to be developed, designed, and financed. SECTION I CITY AGREES: 1. To fund one hundred percent(100%) of all PROJECT development and Right of Way activities costs, using their local funding sources, except for costs of STATE's IQA and STATE's review, comment, and approval if appropriate, of the PROJECT environmental documentation for CEQA, and NEPA if applicable. 2. To not use STATE funds for any PROJECT capital and support costs. 3. All PROJECT work performed by CITY, or performed on CITY's behalf, shall be performed in accordance with all State and Federal laws, regulations, policies, procedures, and standards that STATE would normally follow. All such PROJECT work shall be submitted to STATE for STATE's review, comment, and concurrence at appropriate stages of development. 4. All PROJECT work, except as set forth in this Agreement, is to be performed by CITY. Should CITY request that STATE perform any portion of PROJECT work, except as otherwise set forth in this Agreement, CITY shall first agree to reimburse STATE for such work pursuant to an amendment to this Agreement or a separate executed agreement. 5. To have a Project Report(PR) and detailed Plans, Specifications, and Estimates (PS&E) prepared, at no cost to STATE, and to submit each to STATE for STATE's review and concurrence at appropriate stages of development. The PR, and the final PS&E for PROJECT shall be signed on behalf of CITY by a Civil Engineer registered in the State of California. CITY agrees to provide landscape plans prepared and signed by a licensed California Landscape Architect. 6. To have all necessary right of way maps and documents used to acquire right of way by CITY prepared by or under the direction of a person authorized to practice land surveying in the State of California. Each right of way map and document shall bear the 2 Con�ract No. C27330C Uistrict Agrccmcnt No. 8-1352 appropriate professional seal, certificate number, expiration date of registration certification and signature of the licensed person in Responsible Charge of Work. 7. To permit STA'TE to monitor, participate, and oversce the selection of personnel who will preparc the PR, conduct environmental studies and prepare environmental documentation, prepare the PS&E, provide right of way engineering services, and provide right of way acquisition services. CITY agrees to consider any request by STATE to discontinue the services of any personnel considered by STATE to be unqualified on the basis of credentials, professional expertise, failure to perform, and/or other pertinent criteria. 8. To submit to STATE for review and concurrence all Right of Way Engineering Land-Net Maps and Right of Way Appraisal Maps, Records of Survey, and Right of Way Record Maps in accordance with STATE's Right of Way Manual, Chapter 6, Right of Way Engineering, STATE's Plans Preparation Manual, STATE's Surveys Manual, applicable State laws, and other pertinent reference materials and examples as provided by STATE. 9. Personnel who prepare environmental documentation, including the investigative studies and technical environmental reports, shall be made available to STATE, at no cost to STATE, through completion of PROJECT construction to discuss problems which may arise during PS&E, right of way acquisition, construction, and/or to make design revi- sions for contract change orders. 10. Personnel who prepare right of way maps, documents, and related materials shall be made available to STATE, at no cost to STATE, during and after construction of PROJECT until completion and acceptance by STATE of Right of Way Record Maps, Records of Survey, and title to any property intended to be transferred to STATE. 11. To make written application to STATE for necessary encroachment permits authorizing entry of CITY or CITY's contractor onto the SHS right of way to perform surveying and other investigative activities required for preparation of the PR, environmental documentation, and/or PS&E. 12. To identify and locate all utility facilities within the area of PROJECT as part of the design responsibility for PROJECT. All utility facilities not relocated or removed in advance of construction shall be identified on the PS&E for PROJECT. 13. If any existing utility facilities conflict with the construction of PROJECT or violate STATE's encroachment policy, CITY shall make all necessary arrangements with the owners of such facilities for their timely accommodation, protection, relocation, or rcmoval. The costs for the PROJECT's positive identification and location, protection, relocation, or removal of utility facilities whether inside or outside STATE's right of way shall be determined in accordance with Federal and California laws and regulations, and 3 Contrac: No. C27330C Uistrict Agreement No. 8-1352 STATE's policies and proceciures, standards, practices, and applicable agrcements including, but not limited to, Freeway Master Contracts. 14. To furnish cvidence to STA1'E, in a form acceptable to STATE, that arrangements have been made for the protection, relocation, or removal of all conflicting facilities within the SHS right of way and that such work will bc completed prior to the award of the contract to construct PROJECT or as covered in the PS&E for said contract. This evidence shall include a reference to all required SHS encroachment permits. 15. To acquirc and furnish all right of way, if any, outside of the existing SHS right of way and to perform all right of way activities, including all eminent domain activities, if necessary, at no cost to STATE, and in accordance with procedures acceptable to STATE. These activities shall comply with all applicable State and Federal laws and regulations, subject to STATE's IQA to ensure that the completed work and title to property acquired for PROJECT is acceptable for incorporation into the SHS right of way. 16. To utilize the services of a qualified public agency or a qualified consultant, as determined by STATE's District Division Chief of Right of Way, in all matters related to the acquisition of right of way in accordance with STATE's procedures as published in STATE's current Right of Way Manual. Whenever personnel other than personnel of a qualified public agency, or a qualified consultant, are utilized, administration of the personnel contract shall be performed by a qualified Right of Way person employed or rctained by CITY. 17. To certify legal and physical control of right of way ready for construction and that all right of way parcels were acquired in accordance with applicable State and Federal laws and regulations, subject to review and concurrence by STATE prior to the advertisement for bids for the contract to construct PROJECT. 18. To deliver to STATE legal title to the right of way, including access rights, free and clear of all encumbrances detrimental to STATE's present and future uses not later than the date of acceptance by STATE of maintenance and operation of the SHS facility. Acceptance of said title by STATE is subject to a review of a Policy of Title Insurance in the name of the State of California to be provided and paid for by CITY. 19. To be responsible for, and to the STATE's satisfaction, the investigation of potential hazardous material sites within and outside of the existing SHS right of way that could impact PROJECT as part of performing any preliminary engineering work. If CITY discovers hazardous material or contamination within the PROJECT study area during said investigation, CITY shall immediately notify STATE. 20. If CITY desires to have STATE advertise, award, and administer the construction contract for PROJECT, CITY shall provide STATE with acceptable plans prepared by CITY or CITY's consultant on either 80 min/700mb CDs or DVDs 4,7 GB or 8.5 GB double capacity DVDs using Micro Station Version 08.05.02.47 .dgn files, CaiCE Visual 4 ' Contract No. C27330C District Agreemcnt No. 8-1352 Transportation Version 10. Sl'S (CaiCE VT). One copy of the data on CD/DVD, including the F?ngineers electronic signature and seal, shall be provided to STATE upon completion of the final PROJECT PS&F.. STATE reserves the right to modify these CD/DVD rcquirements and STATE shall provide CITY advance notice of any such modifications. Files may be submitted on up to five(5) CDs or, if larger, on DVDs. All submittal files shall be compressed and shall be successfully run through AXIOM FILEFIXER software or EDG. Reimbursement to STATE for costs incurred by STATE to advertise, award, and administer the construction contract for PROJECT will be covered in the separate Cooperative Agreement referred to in Article 18 of Section II[ of this Agreement. 21. All aerial photography and photogrammetric mapping shall conform to STATE's current standards. 22. A copy of all original survey documents resulting from surveys performed for PROJECT, including original field notes, adjustment calculations, final results, and appropriate intermediate documents, shall be delivered to STATE and shall become property of STATE. For aerial mapping, all information and materials listed in the document "Materials Needed to Review Consultant Photogrammetric Mapping" shall be delivered to STATE and shall become property of STATE. 23. All original recorded land title documents created by PROJECT shall be delivered to STATE and become property of STATE. 24. To submit to STATE a list of STATE horizontal and vertical control monuments which will be used to control surveying activities for PROJECT. SECTION II STATE AGREES: 1. At no cost to CITY, to complete STATE's review as CEQA Lead Agency and NEPA Lead Agency, if applicable, of the environmental documents prepared and submitted by CITY and to provide IQA of all CITY work necessary for completion of the PR, PS&E, and right of way activities for PROJECT done by CITY, including,but not limited to, investigation of potential hazardous material sites and all right of way activities undertaken by CITY or its designee, and provide prompt reviews and concurrence, as appropriate, of submittals by CITY, while cooperating in timely processing of documents necessary for completion of the environmental documentation, PR, and PS&E for PROJECT. 2. Upon proper application by CITY and by CITY's contractor, to issue, at no cost to CITY and CITY's contractor, the necessary encroachment permits for required work within the SHS right of way as more specifically defined elsewhere in this Agreement. 5 Contrac� No. C27330C District Agreement No. 8-1352 S�:C1'ION III IT IS MUTUALLY AGREED: 1. All obligations of STATE under the terms of this Agreement are subject to the appropriation of resources by the Legislature, Statc Budget Act authority and the allocation of funds by the California Transportation Commission (CTC). 2. The parties to this Agreement understand and agree that STATE's IQA is detined as providing STATE policy and procedural guidance through to completion of the PROJECT preliminary engineering, PS&E, and right of way phases administered by C[TY. This guidance includes prompt reviews by STATE to assure that all work and products delivered or incorporated into the PROJECT by CITY conform with then existing STATE standards. IQA does not include any PROJECT related work deemed necessary to actually develop and deliver the PROJECT, nor does it involve any validation to verify and recheck any work performed by CITY and/or its consultants or contractors and no liability will be assignable to STATE, its officers and employees by CITY under the terms of this Agreement or by third parties by reason of STATE's IQA activities. All work performed by STATE pursuant to an amendment to this agreement, that is not direct IQA shall be chargeable against PROJECT funds as a service for which STATE will invoice its actual costs and CITY will pay or authorize STATE to reimburse itself from then available PROJECT funds. 3. The Project Study Report(PSR) for PROJECT, approved on Apri128, 2005, is by this reference, made an express part of this Agreement. 4. The basic design features shall comply with those addressed in the approved PSR, unless modified as required for completion of the PROJECT's environmental documentation and/or if applicable, requested by the Federal Highway Administration (FHWA) or STATE. 5. The design, right of way acquisition, and preparation of environmental documentation and related investigative studies and technical environmental reports for PROJECT shall be performed in accordance with all applicable Federal and STATE standards and practices current as of the date of performance. Any exceptions to applicable design standards shall first be considered by STATE for approval via the processes outlined in STATE's Highway Design Manual and appropriate memoranda and design bulletins published by STATE. In the event that STATE proposes and/or requires a change in design standards, implementation of new or revised design standards shall be done as part of the work on PROJECT in accordance with STATE's current Highway Design Manual Section 82.5, "Effective Date for Implementing Revisions to Design Standards." STATE shall consult with CITY in a timely manner regarding the effect of proposed and/or required changes on PROJECT. 6. STATE will be the CEQA Lead Agency and CITY will be a CEQA Responsible Agency. STATE will be the NEPA Lead Agency, if applicable. CITY will assess PROJECT 6 Contract No. C77330C District Agreement No. 8-1352 impacts on the cnvironmcnt and CITY will prepare the appropriatc level of environmenta� documentation and necessary associated supporting invcstigative studics and technical environmental reports in order to meet the requirements of CEQA and if applicable, NEPA. CITY will submit to STATE all investigative studies and technical environmental reports for STATE's review, comment, and approval. The environmental document and/or categorical exemption/exclusion determination, including the administrative draft, draft, administrative final, and final environmental documcntation, as applicable, will require STATE's review, comment, and approval prior to public availability. If, during preparation of the PS&E, performance of right of way activities, or performance of PROJECT construction, new information is obtained which requires the preparation of additional environmental documentation to comply with CEQA and if applicable, NEPA, this Agreement will be amended to include completion of those additional tasks. 7. CITY agrees to obtain, as a PROJECT cost, a1I necessary PROJECT permits, agreements and/or approvals from appropriate regulatory agencies, unless the parties agree otherwise in writing. If STATE agrees in writing to obtain said PROJECT permits, agreements, and/or approvals, those said costs shall be paid by CITY, as a PROJECT cost. 8. CITY sha11 be fully responsible for complying with and implementing any and all environmental commitments set forth in the environmental documentation, permit(s), agreement(s) and/or environmental approvals for PROJECT. The costs of said compliance and implementation shall be a PROJECT cost. 9. If there is a legal challenge to the environmental documentation, including supporting investigative studies and/or technical environmental report(s), permit(s), agreement(s), environrnental commitments and/or environmental approval(s) for PROJECT, all legal costs associated with those said legal challenges shall be a PROJECT cost. 10. CITY, subject to STATE's prior review and approval, as a PROJECT cost, shall be responsible for preparing, submitting, publicizing and circulating all public notices related to the CEQA environmental process and if applicable, the NEPA environmental process, including, but not limited to, notice(s)of availability of the environmental document and/or determinations and notices of public hearings. Public notices shall comply with all State and Federal laws, regulations, policies and procedures. STATE will work with the appropriate Federal agency to publish notices in the Federal Register, if applicable. STATE, as a PROJECT cost, shall be responsible for overseeing the planning, scheduling and holding of all public meetings/hearings related to the CEQA environmental process and if applicable, the NEPA environmental process. CITY, to the satisfaction of STATE and subject to all of STATE's and FHWA's policies and procedures, shall be responsible for performing the planning, scheduling and details of holding all public meetings/hearings related to the CEQA environmental process and if applicable, the 7 Contract No. C27330C District Agreement No. 8-1352 NEPA environmental process. STA'I'E will participate as CEQA Lead Agency and if applicable, the NEPA Lead Agency, in all public meetings/hearings related to the CEQA environmental process and if applicable, the NEPA environmental process, for PROJECT. CITY shall provide STATE the opportunity to provide comments on any public meeting/hearing exhibits, handouts or other materials at least ten (10) days prior to any such public meetings/hearings. STATE maintains final editorial control of exhibits, handouts or other materials to be used at public mcetings/hearings. 11. In the event CITY would like to hold separate and/or additional public mectings/hearings regarding the PROJECT, CITY must clarify in any meeting/hearing notices, exhibits, handouts or other materials that STATE is the CEQA Lead Agency and if applicable, the NEPA Lead Agency, and CITY is the CEQA Responsible Agency. Such notices, handouts and other materials shall also specify that public comments gathered at such meetings/hearings are not part of the CEQA and if applicable, NEPA, public review process. CITY shall provide STATE the opportunity to provide comments on any meeting/hearing exhibits, handouts or other materials at least ten(10) days prior to any such meetings/hearings. STATE maintains final editorial control of exhibits, handouts or other materials to be used at public meetings/hearings solely with respect to text or graphics that could lead to public confusion over CEQA and if applicable, NEPA, related roles and responsibilities. 12. All administrative reports, studies, materials, and documentation, including, but not limited to, all administrative drafts and administrative finals, relied upon, produced, created or utilized for PROJECT will be held in confidence pursuant to Government Code section 6254.5(e). The parties agree that said material will not be distributed, released or shared with any other organization, person or group other than the parties' employees, agents and consultants whose work requires that access without the prior wnitten approval of the party with the authority to authorize said release and except as required or authorized by statute or pursuant to the terms of this Agreement. 13. CITY's share of all changes in development and construction costs associated with modifications to the basic design features as described above shall be in the same proportion as described in this Agreement, unless mutually agreed to the contrary by STATE and CITY in a subsequent amendment to this Agreemcnt. 14. Any hazardous material or contamination of an HM-1 category found within existing SHS right of way during PROJECT shall be the responsibility of STATE. Any hazardous material or contamination of an HM-1 category found within local road right of way during PROJECT shall be the responsibility of CITY. For the purpose of this Agreement, hazardous material of HM-1 category is defined as that level or type of contamination which must be remediated by reason of its mere discovery regardless of whether it is disturbed by PROJECT or not. STATE shall sign the HM-1 manifest and pay all costs for remedy or remedial action within existing SHS right of way, except that if STATE determines, in its sole judgment, that STATE's cost for remedy or remedial action is increased as a result of CITY's decision to proceed with PROJECT, that additional cost identified by STATE shall be borne by CITY. CITY shall sign the HM-1 8 Cor.tract No. C27330C District Agree�nent No. 8-1352 manifest and pay all costs for required remedy or remedial action within local road right of way or othcr property. Whilc STATE will exert every reasonable effort to fund thc remedy or remedial action for which STATE is responsible, in the event STATE is unable to provide funding, CITY will havc the option to either delay PROJECT' until STATE is able to provide that corrective funding or CITY may proceed with the remedy or remedial action as a PROJECI' expense without any subsequent rcimbursement by STATE. 15. Any remedy or remedial action with respect to any hazardous material or contamination of an HM-2 category found within existing SHS right of way shall be the responsibility of CITY, who shall sign the HM-2 manifest and management of HM-2 will be at CITY's cost if the PROJECT proceeds. Any remedy or remedial action with respect to any hazardous material or contamination of an HM-2 category found within CITY right of way shall be the responsibility of CITY who shall sign the HM-2 manifest and management of HM-2 will be at CITY's cost, if the PROJECT proceeds. For the purposes of this Agreement any hazardous material or contamination of HM-2 category is defined as that level or type of contamination which said regulatory control agencies would have allowed to remain in place if undisturbed had PROJECT not proceeded. 16. If hazardous material or contamination of either HM-1 or HM-2 category is found on new right of way acquired by or on account of CITY for PROJECT, CITY shall be responsible, at CITY's expense, for all required remedy or remedial action and/or protection in the absence of a generator or prior property owner willing and prepared to perform that corrective work. 17. Remedial actions proposed by CITY on SHS right of way shall be pre-approved by STATE and shall be performed in accordance with STATE's standards and practices and standards and practices mandated by those Federal and State regulatory agencies. 18. A separate Cooperative Agreement or agreements will be required to address Landscape Maintenance, and to cover responsibilities and funding for the construction phase of PROJ ECT. 19. Nothing within the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not partics to this Agreement or to affect the legal liability of either party to the Agreement by imposing any standard of care with respect to the development, design, construction, operation, or maintenance of the SHS and public facilities different from the standard of care imposed by law. 20. Neither STATE nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority, or jurisdiction conferred upon CITY or arising under this Ageement. It is.understood and agreed that, CITY will fully defend, indemnify, and save hartnless STATE and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, including,but not limited to, tortious, contractual, inverse condemnation, or other 9 Contract No, C47330C District Agrccmcnt No. 8-1352 thcories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. 21. Neither CITY nor any officer or employee thereof is responsible for any injury, damagc, or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority, or jurisdiction conferred upon STATE or arising under this Agreement. It is understood and a��reed that, STATF, will fully defend, indemnify, and save harmless C1TY and all of its officers and employees from all claims, suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE under this Ageement. 22. Prior to the commencement of any work pursuant to this Agreement, either STA'I'E or CITY may terminate this Agreement by written notice to the other party. 23. No alteration or variation of the terms of this Agreement shall be valid unless made by a formal amendment executed by the parties hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. 24. This Agreement shall terminate upon the satisfactory completion of all post-PROJECT construction obligations of CITY and the delivery of required PROJECT construction documents, with concurrence of STATE, or on December 31, 2014, whichever is earlier in time, except that the ownership, operation, maintenance, indemnification, environmental commitments, legal challenges, and claims articles shall remain in effect until terminated or modified, in writing,by mutual agreement. Should any construction related or other claims arising out of PROJECT be asserted against one of the parties, the parties agree to extend the fixed termination date of this Agreement, until such time as the construction related or other claims are settled, dismissed or paid. SIGNATURES ON FOLLOW[NG PAGE: 10 Contr.ac� No. C27330C District Agrcemcnt No. 8-1352 STA�CE OF CALIFORNIA CITY OF PALM DF,SERT DEPAR'I'MENT OP TRANSPORTATION WILL KF,MPTON Director By: Mayor By: Attest: MICHAEL A. PEROVICH City Clerk District Director APPROVED AS TO FORM AND APPROVED AS TO FORM AND PROCEDURE: PROCEDURE: By By: Attorn , City Counsel Department of Transportation CERTIFIED AS TO FUNDS: By: District Budget Manager CERTIFIED AS TO FINANCIAL TERMS AND POLICIES: ►. 1 - � r, By: ; � , 1.(',��. ��- Accounting ministr r Il _ � �. � f.. � _ , - � ��. - � ���� - - - � ' � / VA � � � RNFR -., � R�qo �_ � _ _ � � , t � � � � : ,� . � �• :.{.+� - _ _ ��r � � � �. � ., : � .. �...��;�. . , . ���- 4'.1O�w"�'w'�Ksy��:� -,.:��: �... TR . ss-r�c • � '� - . ._ . . . � � �----�---�-- - ----�-�--•- � � -�- I N T E R S T A T E 10 �� .. � . .� . � ., _ ___=� . .,..... =� r, . ��, UNION PACIFIC RAILROAD � 4 �. �C 1{ ' . t � _ � �, • 4 w`,�1r� • . �_ .- �. ' ' , _ � t ' � � }• t -��. _ � �� .#r � ' _ —'_ ._ ' . �F _ Y� r •r . ��FY�t_�� � k, - „ � + � F , , � � . ,i � #�i_' *-e;4 ! y • T7 - 4- �#r. �. �" • . .�,. ti.• Nri *' l.��. 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