Loading...
CVWD - Coachella Canal 2012AGREEMENT THIS AGREEMENT ("Agreement") is made on this /37,h day of March, 2012 ("Effective Date"), by and between COACHELLA VALLEY WATER DISTRICT, a public agency of the State of California ("District") and CITY of LA QUINTA, a California municipal corporation and charter city ("City"). District and City are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. On or about December 21, 1920 the Congress of the United States of America ("United States") approved the "Boulder Canyon Project Act" (45 Slat. 1057). Pursuant to the Boulder Canyon Project Act, the United States constructed the All -American Canal and its Coachella Branch ("Coachella Canal"). The Coachella Canal is generally that portion of the All - American Canal from Drop 1 to Lake Cahuilla. The purpose of the Coachella Canal is to convey water for urban, agricultural, and ground water recharge purposes. B. The United States, by and through the Bureau of Reclamation ("USBR"), holds title to the Coachella Canal and District operates and maintains the Coachella Canal pursuant to Contract No. Ilr-781 with the United States dated October 13, 1934, as amended and supplemented. C. Ground subsidence has occurred throughout the Coachella Valley at least since the original construction of the Coachella Canal. The Coachella Canal has subsided generally uniformly with the land except a portion thereof between Mile Post ("MP") 120.3 and the check drop structure at MP 121.8, which portion is more particularly depicted on Exhibit "A" attached hereto and by this reference incorporated herein ("Non -Subsided Portion of the Coachella Canal"). This Non -Subsided Portion of the Coachella Canal is generally located west of Jefferson Street and extends to a point south of Avenue 54 adjacent to PGA West in the City of La Quinta. D. The Non -Subsided Portion of the Coachella Canal results in a hydraulic condition whereby the original flow capacity has been substantially reduced. In order to increase the flow capacity within the Non -Subsided Portion of the Coachella Canal, the Parties have determined that a physical solution must occur, including, but not limited to, the possibility of replacing and/or relocating all or a portion of the Non -Subsided Portion of the Coachella Canal. E. District retained the services of GEI Consultants, Inc. ("GEI"), to evaluate the subsidence of the Coachella Canal generally, and the non -subsidence within the Non -Subsided Portion of the Coachella Canal and to perform preliminary engineering for four (4) water conveyance system ("Water Conveyance System") alignment options and six (6) design/construction options for each alignment. On or about April, 2009 GEI submitted to District its report entitled, "Evaluation of Subsidence and Canal Replacement Options" ("Report"). A copy of the Report is on file in each of the City's and the District's offices. F. The implementation of each of the Water Conveyance System alignment options identified in the Report will require the installation of a new concrete -lined canal and/or new 119/0156W0 120 2301 M8-2-23-12-Redline CV WD & W -1 - pipelines, and the demolition and removal of certain existing concrete -lined canal, pipelines and facilities. G. The Parties have selected two (2) Water Conveyance System alignment options identified in the Report as the most viable (each, a "Design Alternative") for further design. The options selected for further design and costs analysis are generally described as the "Parallel Canal" and the "Jefferson Street Alignment." Those two options are referred to hereinafter as the "Project Alternatives" and are described further in Exhibit `B". The Parties now wish to provide for (i) the District's retention of an engineering firm to complete the design plans and construction cost estimates for the Project Alternatives; (ii) the District's retention of a construction management firm, which firm shall be approved by the City's Public Works Director, to prepare a second opinion regarding the construction costs for the Project Alternatives, (iii) preliminary California Environmental Quality Act ("CEQA") and National Environmental Protection Act ("NEPA") compliance studies, and (iv) the Parties' respective payment obligations for the costs set forth in the foregoing clauses (i) through (iii). NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS, WHICH ARE INCORPORATED HEREIN BY THIS REFERENCE, AND FOR OTHER VALUABLE CONSIDERATION, THE SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED BY THE PARTIES, THE PARTIES AGREE AS FOLLOWS: 1. Preparation of Design Plans and Engineerine Cost Estimates. Within thirty (30) days after the Effective Date, District shall use commercially reasonable efforts to retain an engineering firm ("District's Engineering Consultant") to complete design plans ("Design Plans") for each of the Project Alternatives to approximately seventy-five percent (75%) completion ("75% Complete") and to prepare construction cost estimates for the anticipated cost of constructing each of the Project Alternatives ("Cost Estimates") based upon the 75% Complete Design Plans. Within sixty (60) days after the Effective Date, the District shall retain a construction management firm, which firm shall be subject to the written approval by the City's Public Works Director, to prepare a second, independent opinion regarding the Cost Estimates for each of the Project Alternatives based upon the 75% Complete Design Plans. Once a Project Alternative is selected, the District's Engineering Consultant shall complete the Design Plans for such Project Alternative to one hundred percent ("100% Completion") so that the selected Project Alternative is ready to bid. 2. CEQA & NEPA Compliance. District shall act as lead agency with respect to compliance with CEQA and NEPA and all other applicable state and federal environmental laws and all requirements of the Federal Endangered Species Act and the California Endangered Species Act arising out of or in connection with the Project Alternatives for compliance with all conditions and mitigation measures which must be satisfied in connection with the same (collectively, "Environmental Compliance"). Environmental Compliance shall include compliance with federal and state laws, rules and regulations regarding Native American remains and cultural resources. District shall prepare, or cause to be prepared, all instruments, documents, reports and other like or kind writings required to be prepared and/or filed by CEQA and NEPA. City hereby agrees to cooperate with the District in a timely manner with respect to District's Environmental Compliance. To the extent commercially reasonable, District shall complete its Environmental Compliance concurrently with the preparation of the Design Plans. 119/015610-0120 2301648-2-23-12-Redline CV WD & LQ -2- 3. Meet and Confer. The Costs Estimates from both the engineering firm and construction management firm shall be provided promptly to the City upon completion. After both Costs Estimates are completed and provided to the City, the Parties shall meet and confer for a period not to exceed thirty (30) days, during which the Parties shall determine if they jointly wish to pursue the construction of the Jefferson Street Alignment Alternative. The Parties understand that the District will not likely pursue that Project Alternative unless the Parties are able to reach a mutually agreeable cost sharing contract. This Agreement is not intended to require the Parties to enter into any further agreements relating to this matter. Instead, the purpose of this Agreement is to provide cost information necessary for the Parties to determine the feasibility of the Jefferson Street Alignment Alternative. A contract will not exist, and there shall be no obligation on the part of either Party to enter such a contract, with respect to the construction of any Project Alternative unless and until the Parties have executed an agreement approved by their respective legislative bodies regarding the construction of the Project Alternative and containing all essential terms, including the cost allocation for construction costs. In the event the Parties agree to the Project Alternative, in writing, District is authorized to cause the District's Engineering Consultant to complete the Design Plans for such Project Alternative to one hundred percent ("100% Completion") so that the selected Project Alternative is ready to bid. 4. Cost Allocation. a. The costs and expenses to undertake any and all pre -construction work whether or not set forth in this Agreement (collectively, the "Pre -Construction Work") shall be borne fifty percent (50%) by District and fifty percent (50%) by City. As used in this subsection, the term "costs and expenses" shall only include the costs and expenses to perform the Pre - Construction Work, as follows: Costs incurred by District for the preliminary engineering as described in Recital E; ii. The costs to conduct preliminary Environmental Compliance studies for the Project Alternatives; iii. The costs for the preparation of the 75% Design Plans for the Project Alternatives and associated Cost Estimates; and iv. The costs for the preparation of the Design Plans to 100% Completion for the preferred alternative. b. The costs and expenses for items 4.a.i-iv are projected not to exceed $400,000 ("Current Estimate"). Therefore, the maximum costs and expenses projected to be home by the District and the City are $200,000, respectively. If it appears that the Current Estimate for items 4.a.i-iv will be exceeded, or costs not covered by items 4.a.i-iv are identified, the District and City will meet and confer and discuss how the additional costs will be shared. However, the City shall not have any obligation to make any payment beyond the $200,000 unless an amendment to this Agreement is approved by the City Council, which amendment expressly increases the amount to be paid by the City under this Agreement to more than $200,000. 119/015610-0120 2301648-2-23-12-Redline CV WD & LQ -3- Notwithstanding anything herein to the contrary, each Party shall be responsible for its own staff and overhead costs and expenses, and such costs and expenses shall not be deemed Pre - Construction Work. C. District may obtain a disbursement from the City pursuant to the following process: From time to time, but not more than once per month, District shall provide to City a written disbursement request in substantially the same form attached hereto as Exhibit "C" setting forth City's proportionate share of certain Pre -Construction Work. Said request shall show all Pre - Construction Work that District has funded with such disbursement, itemized in such detail as the City may reasonably require, accompanied in each case by invoices reasonably satisfactory to the City. Within twenty-one (21) days after the City's receipt of a disbursement request, the City shall disburse the City's proportionate share to the District. d. The District agrees to maintain all records relating to the Pre -Construction Work for no Tess than three (3) years following the completion of the work covered by this Agreement. The District agrees to make such records available for review and audit of the City or its designee, upon thirty (30) business days' written request by the City in accordance with the notice provisions of this Agreement. 5. Notices. All notices, invoices and payments (collectively, "Notices") provided for hereunder shall be in writing and (i) mailed (registered or certified, postage prepaid, return receipt requested), (ii) delivered by reputable overnight or same day courier service that provides a receipt with the date and time of delivery, or (iii) hand delivered to the Parties at the addresses set forth below or at such other addresses as shall be designated by such Parry and by a written Notice to the other Party in accordance with the provisions of this section. All such Notices shall, if hand delivered, or delivered by overnight or same day courier service, be deemed received upon delivery and, if mailed, be deemed received two (2) business days after such mailing. To City: Notices Delivered by U.S. Mail: City of La Quinta P.O. Box 1504 La Quinta, CA 92247 Attn: City Manager Notices Delivered Personally or by Courier: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Attn: City Manager copy to: Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Attn: M. Katherine Jenson, Esq. 119/015610-0120 -4- 2301648-2-23-12-Redlmv CVWD&LQ To District: Coachella Valley Water District 85-995 Avenue 52 Post Office Box 1058 Coachella, CA 92236 Attn: Steve Robbins, General Manager -Chief Engineer copy to: Redwine and Sherrill 1950 Market Street Riverside, CA 92501 Attn: Gerald D. Shoaf, Esq. 6. Entire Agreement. This instrument, together with the exhibits attached hereto and other writings referenced herein, contains the entire agreement between the Parties relating to the subject matter hereof and supersedes any and all prior agreements between the Parties, oral or written, and any and all amendments thereto. Any oral representations or modifications concerning this instrument shall be of no force and effect, excepting a subsequent modification in writing, signed by the Parties to be charged. 7. Attorney's Fees. In the event of any litigation or other action between the Parties arising out of or relating to this Agreement or the breach thereof, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to its reasonable costs and attorney's fees. 8. Governing Law. This Agreement is entered into within the State of California, and all questions concerning the validity, interpretation and performance of any of its terms or provisions or any of the rights or obligations of the Parties hereto shall be governed by and resolved in accordance with the internal laws of the State of California, without regard to conflict of law principals. 9. Interpretation. The provisions of the Agreement shall be construed as to their fair meaning, and not for or against any Party based upon any attribution to such Party as the source of language in question. 10. Time is of Essence. Time is of the essence of this Agreement and each and every term and provisions thereof. 11. Assignment. Neither District nor City shall, either voluntarily or by action of law, assign or transfer this Agreement or any obligation, right, title or interest assumed by such Party, except as otherwise provided herein, without the prior written consent of the other Party. Any attempted assignment in violation if this provision is void ab initio. Subject to the foregoing, the provisions of this Agreement shall apply and bind the successors and assigns of the Parties. 12. No Third Party Beneficiaries. Except as specifically set forth herein, this Agreement shall not be deemed to confer any rights upon any individual or entity which is not a party hereto (except the USBR) and the Parties expressly disclaim such third party benefit. l M015610-0120 23016 8-2-23-12-Redline CVWD&LQ -5- 13. Waivers. No delay on the part of any Party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party hereto of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege hereunder, nor shall any single or partial exercise of any right, power or privilege hereunder, preclude any other or further exercise of any other right, power or privilege hereunder. 14. Authority to Execute. Each individual executing this Agreement hereby represents and warrants that he or she has the full power and authority to execute this Agreement on behalf of the named Parties. 15. Count. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument. 16. Default Interest. Any payment not paid when due shall bear simple interest equal to two percent (2%) of the delinquent payment for each month or portion thereof that such payment remains delinquent. 17. Jurisdiction. The Parties agree that any action or proceeding to enforce or relating to this Agreement shall be brought exclusively in the Federal or State courts located in Riverside County, California, and the Parties hereto consent to the exercise of personal jurisdiction over them by any such courts for purposes of any such action or proceeding. 18. Days. Unless otherwise specified, all references hereunder to "days" shall mean calendar days. [End - signatures on next page] 119/015610-0120 2301648-2-23-12-Redline CV WD & LQ IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year hereinabove written. Date: MA P c-1 13 , 2012 ATTEST: JUI Fernandez / B d Secretary APPROVED AS TO FORM: REDWINE & SHERRILL By. "-/� d OA4-m General Counsel "District" "City" CITY OF LA QUINTA, a California municipal corporation and charter city Date: —� S 2012 By: ��� Interim City Manager ATTEST: Susan Maysels Interim City Clerk APPROVED AS TO FORM RUTAN & MUCKLR(%.LP By: . Ca he ne Jens City Attorney 119/015610-0120 _^/_ 2301648-2-23-12-Redli. CV W D & LQ 010M1011 COACHELLA CANAL NON -SUBSIDED CANAL SECTION �y mmixa CANAL SECTION EXHIBIT "B" DESCRIPTION OF THE TWO DESIGN ALTERNATIVES Description of the proposed future construction project The proposed future construction project is intended to correct major flow deficiencies associated with the existing Coachella Canal starting at Mile Post 120.3 and extending south through the PGA West Residential development. The loss of capacity within the existing open canal is the result of differential settlement between the section of the canal on the desert floor and the section of the canal that comes into close proximity with the Santa Rosa Mountains south of Avenue 53 and west of Jefferson Street (the "Non -Subsided Portion"). Due to the grade differences between its subsided portion and Non -Subsided Portion the canal has lost over 50% of the original capacity that it was designed to convey. As a result of work by the District and Agency Staff, two design alternates will be evaluated as a part of this Agreement to correct the flow capacity issues and are described as follows. The proposed underground piping option (Jefferson Street Alignment) generally follows Jefferson Street along the western parkway, starting at the intersection with the Coachella Canal and proceeding south to the intersection of Avenue 54. North of Avenue 54, the proposed circular pipe, with the final diameter to be determined through the preliminary design effort described within the agreement, will bend to the west along the north side of Avenue 54. East of the existing canal, the proposed pipeline will curve southward and connect to the existing canal at a newly constructed drop structure located at Mile Post 121.8. This option will require the relocation of the existing L-4 Pump station, which is currently located 0.5 mile west of Jefferson Street, to a location closer to Jefferson Street, which will also be the location of an inlet structure for the open canal to closed conduit system conversion. In addition to the above mentioned construction, this option will require the relocation and reconnection of four active irrigation laterals and reconstruction of the drop structure at the lower end to facilitate the lowering of the conveyance system with a new lower outlet elevation. The existing canal section would be abandoned, and removed to the extent necessary, and the surrounding area would be re-established to conform to the existing condition. The second option (Parallel Canal) would reconstruct an open canal, parallel and west of the existing canal within the current canal easement right of way. This parallel canal would start approximately a quarter mile south of the L- 4 Pump Station and reconnect to the existing canal section at the drop structure at Miles Post 121.8. The canal alternative will be designed to accommodate future subsidence by lowering the downstream tie-in at the drop structure to an elevation lower than required to convey existing design flows. This new canal section would require reconnection of one irrigation lateral to the proposed canal section, reconstruction of the drop structure to facilitate the lowering of the outlet elevation, removal and backfill of the concrete canal section and re-establishment of the surrounding area to the existing condition. 119/01561M120 EXHIBIT "B" 2301648-2-23-12-Redline CV WD & LQ EXHIBIT "C" FORM OF WRITTEN DISBURSEMENT REQUEST [to be inserted] 119/015610-0120 2301648-2-23-12-aedu.eCVWD&LQ EXHIBIT"C" File: UUU1.3 1150.14 0332.7 AGREEMENT THIS AGREEMENT ("Agreement") is made on this [, ' day of March, 2012 ("Effective Date"), by and between COACHEL,LA VALLEY WATER DISTRICT, a public agency of the State of California (`District') and CITY of LA QUINTA, a California municipal corporation and charter city ("City"). District and City are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. On or about December 21, 1920 the Congress of the United States of America ("United States") approved the `Boulder Canyon Project Act" (45 Stat. 1057). Pursuant to the Boulder Canyon Project Act, the United States constructed the All -American Canal and its Coachella Branch ("Coachella Canal"). The Coachella Canal is generally that portion of the All - American Canal from Drop 1 to Lake Cahuilla. The purpose of the Coachella Canal is to convey water for urban, agricultural, and ground water recharge purposes. B. The United States, by and through the Bureau of Reclamation ("USBR"), holds title to the Coachella Canal and District operates and maintains the Coachella Canal pursuant to Contract No. Ilr-781 with the United States dated October 13, 1934, as amended and supplemented. C. Ground subsidence has occurred throughout the Coachella Valley at least since the original construction of the Coachella Canal. The Coachella Canal has subsided generally uniformly with the land except a portion thereof between Mile Post ("MP") 120.3 and the check drop structure at MP 121.8, which portion is more particularly depicted on Exhibit "A" attached hereto and by this reference incorporated herein ("Non -Subsided Portion of the Coachella Canal"). This Non -Subsided Portion of the Coachella Canal is generally located west of Jefferson Street and extends to a point south of Avenue 54 adjacent to PGA West in the City of La Quinta. D. The Non -Subsided Portion of the Coachella Canal results in a hvdrautic condition whereby the original flow capacity has been substantially reduced. In order to increase the flow capacity within the Non -Subsided Portion of the Coachella Canal, the Parties have determined that a physical solution must occur, including, but not limited to, the possibility of replacing and/or relocating all or a portion of the Non -Subsided Portion of the Coachella Canal. E. District retained the services of GET Consultants. Inc. ("GEI"), to evaluate the subsidence of the Coachella Canal generally, and the non -subsidence within the Non -Subsided Portion of the Coachella Canal and to perform preliminary engineering for four (4) water conveyance system ("Water Conveyance System") alignment options and six (6) design/construction options for each alignment. On or about April, 2009 GET submitted to District its report entitled, "Evaluation of Subsidence and Canal Replacement Options" ("Report"). A copyof the Report is on file in each of the City's and the District's offices. F. The implementation of each of the Water Conveyance System alignment options identified in the Report will require the installation of a new concrete -lined canal and/or new 119,1015610-0110 - I 2301648_2 21-11-Redline CV W D S LQ toSCA@@ ED pipelines, and the demolition and removal of certain existing concrete -lined canal, pipelines and facilities. G. The Parties have selected two (2) Water Conveyance System alignment options identified in the Report as the most viable (each, a "Design Alternative") for further design. The options selected for further design and costs analysis are generally described as the "Parallel Canal" and the "Jefferson Street Alignment." Those two options are referred to hereinafter as the "Project Alternatives" and are described further in Exhibit `B". The Parties now wish to provide for (i) the District's retention of an engineering firm to complete the design plans and construction cost estimates for the Project Alternatives, (ii) the District's retention of a construction management firm, which firm shall be approved by the City's Public Works Director, to prepare a second opinion regarding the construction costs for the Project Alternatives, (iii) preliminary California Environmental Quality Act ("CEQA") and National Environmental Protection Act ("NEPA") compliance studies, and (iv) the Parties' respective payment obligations for the costs set forth in the foregoing clauses (i) through (iii). NOW, THEREFORE„ IN CONSIDERATION OF THE FOREGOING RECITALS, WHICH ARE INCORPORATED HEREIN BY THIS REFERENCE, AND FOR OTHER VALUABLE CONSIDERATION, THE SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED BY THE PARTIES, THE PARTIES .AGREE AS FOLLOWS: 1. Preparation of Design Plans and Engine-ering Cost Estimates. Within thirty (30) days after the Effective Date, District shall use commercially reasonable efforts to retain an engineering firm ("District's Engineering Consultant") to complete design plans ("Design Plans") for each of the Project Alternatives to approximately seventy-five percent (75%) completion ("75% Complete") and to prepare construction cost estimates for the anticipated cost of constructing each of the Project Alternatives ("Cost Estimates") based upon the 75% Complete Design Plans. Within sixty (60) days after the Effective Date, the District shall retain a construction management fine, which firm shall be subject to the written approval by the City's Public Works Director. to prepare a second, independent opinion regarding the Cost Estimates for each of the Project Alternatives based upon the 75% Complete Design Plans. Once a Project Alternative is selected, the District's Engineering Consultant shall complete the Design Plans for such Project Alternative to one hundred percent ("100% Completion") so that the selected Project Alternative is ready to bid. 2. CEQA & NEPA Compliance. District shall act as lead agency with respect to compliance with CEQA and NEPA and all other applicable state and federal environmental laws and all requirements of the Federal Endangered Species Act and the California Endangered Species Act arising out of or in connection with the Project Alternatives for compliance with all conditions and mitigation measures which must be satisfied in connection with the same (collectively, "Environmental Compliance"). Environmental Compliance shall include compliance with federal and state laws, rules and regulations regarding Native American remains and cultural resources. District shall prepare, or cause to be prepared.. all instruments, documents, reports and other like or kind writings required to be prepared and/or filed by CEQA and NEPA. City hereby agrees to cooperate with the District in a timely manner with respect to District's Environmental Compliance. To the extent commercially reasonable, District shall complete its Environmental Compliance concurrently with the preparation of the Design Plans. 119101561M120 2_301648-2-23.12-Redline CV WD & LQ -2- 3. Meet and Confer. The Costs Estimates from both the engineering firm and construction management firm shall be provided promptly to the City upon completion. After both Costs Estimates are completed and provided to the City, the Parties shall meet and confer for a period not to exceed thirty (30) days, during which the Parties shall determine if they jointly wish to pursue the construction of the Jefferson Street Alignment Alternative. The Parties understand that the District will not likely pursue that Project Alternative unless the Parties are able to reach a mutually agreeable cost sharing contract. This Agreement is not intended to require the Parties to enter into any further agreements relating to this matter. Instead, the purpose of this Agreement is to provide cost information necessary for the Parties to determine the feasibility of the Jefferson Street Alignment Alternative. A contract will not exist, and there shall be no obligation on the part of either Party to enter such a contract, with respect to the construction of any Project Alternative unless and until the Parties have executed an agreement approved by their respective legislative bodies regarding the construction of the Project Alternative and containing all essential terms, including the cost allocation for construction costs. In the event the Parties agree to the Project Altemative, in writing, District is authorized to cause the District's Engineering Consultant to complete the Design Plans for such Project Alternative to one hundred percent ("100% Completion") so that the selected Project Alternative is ready to bid. 4. Cost Allocation a. The costs and expenses to undertake any and all pre -construction work whether or not set forth in this Agreement 'collectively, the "Pre -Construction Work") shall be borne fifty percent (50%) by District and fifty percent (50%) by City. As used in this subsection, the term "costs and expenses" shall only include the costs and expenses to perform the Pre - Construction Work, as follows: i. Costs incurred by District for the preliminary engineering as described in Recital E; ii. The costs to conduct preliminary Environmental Compliance studies for the Project Alternatives; iii. The costs for the preparation of the 75% Design Plans for the Project Alternatives and associated Cost Estimates; and IV. The costs for the preparation of the Design Plans to 100% Completion for the preferred alternative. b. The costs and expenses for items 4.a.i-iv are projected not to exceed $400,000 ("Current Estimate"). Therefore, the nnaximum costs and expenses projected to be home by the District and the City are $200,000, respectively. if it appears that the Current Estimate for items 4.a.i-iv will be exceeded, or costs not covered by items 4.a.i-iv are identified, the District and City will meet and confer and discuss how the additional costs will be shared. However, the City shall not have any obligation to make any payment beyond the $200,000 unless an amendment to this Agreement is approved by the City Council, which amendment expressly increases the amount to be paid by the City under this Agreement to more than $200,000. I19�013610-0120 _ 2301668-2-1: 12-Redhnc CVWO& ) -3 Notwithstanding anything herein to the contrary, each Party shall be responsible for its own staff and overhead costs and expenses, and such costs and expenses shall not be deemed Pre - Construction Work. c. District may obtain a disbursement from the City pursuant to the following process: From time to time, but not more than once per month, District shall provide to City a written disbursement request in substantialy the same form attached hereto as Exhibit "C" setting forth City's proportionate share of certain Pre -Construction Work. Said request shall show all Pre - Construction Work that District has funded with such disbursement, itemized in such detail as the City may reasonably require, accompanied in each case by invoices reasonably satisfactory to the City. Within twenty-one (21) days after the City's receipt of disbursement request, the City shall disburse the City's proportionate share to the District. d. The District agrees to maintain all records relating to the Pre -Construction Work for no less than three (3) years following the completion of the work covered by this Agreement. The District agrees to make such records available for review and audit of the City or its designee, upon thirty (30) business days' written request by the City in accordance with the notice provisions of this Agreement. 5. Notices. All notices, invoices and payments (collectively, "Notices") provided for hereunder shall be in writing and (i) mailed ('registered or certified, postage prepaid, return receipt requested), (ii) delivered by reputable overnight or saute day courier service that provides a receipt with the date and time of delivery, or (iii) hand delivered to the Parties at the addresses set forth below or at such other addresses as shall be designated by such Pally and by a written Notice to the other Party in accordance with the provisions of this section. All such Notices shall, if hand delivered, or delivered by overnight or same day courier service, be deemed received upon delivery and, if mailed, be deemed received two (2) business days alter such mailing. To City: Notices Delivered by U.S. Mail: City of La Quinta P.O. Box 1504 La Quinta, CA 92247 Attn: City Manager Notices Delivered Personally or by Courier: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Attn: City Manager copy to: Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Attn: M. Katherine.lenson, Esq. IIT015610-0120 4 2301648-2-Zi-12-Redline C V W D & LQ 'fo District: Coachella Valley Water District 85-995 Avenue 52 Post Office Box 1058 Coachella, CA 92236 Attn: Steve Robbins, General Manager -Chief Engineer Copy to: Redwine and Sherrill 1950 Market Street Riverside, CA 92501 Attn: Gerald D. Shoaf, Esq. 6. F,rnire Agreement. This instrument, together with the exhibits attached hereto and other writings referenced herein, contains the entire agreement between the Parties relating to the subject matter hereof and supersedes any and all prior agreements between the Parties, oral or written, and any and all amendments thereto. Any oral representations or modifications concerning this instrument shall be of'no force and effect, excepting a subsequent modification in writing, signed by the Parties to be charged. 7. Attorney s Pees. In the event of any litigation or other action between the Parties arising out of or relating to this Agreement or the breach thereof, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to its reasonable costs and attorney's fees. 8. Governing Law. This Agreement is entered into within the State of California, and all questions concerning the validity, interpretation and performance of any of its terms or provisions or any of the rights or obligations of the Parties hereto shall be governed by and resolved in accordance with the internal laws of the State of California, without regard to conflict of law principals. 9. Inter retatton. The provisions of the Agreement shall be construed as to their fair meaning, and not for or against any Party based upon any attribution to such Party as the source of language in question. 10. Time is of Essence. Time is of the essence of this Agreement and each and every term and provisions thereof. It. Assi ng ment. Neither District nor City shall, either voluntarily or by action of law, assign or transfer this Agreement or any obligation, right, title or interest assumed by such Party, except as otherwise provided herein, without the prior written consent of the other Party. Any attempted assignment in violation if this provision is void ab inftlo. Subject to the foregoing, the provisions of this Agreement shall apply and bind the successors and assigns of the Parties. 12. No Third Party Beneficiaries. Except as specifically set forth herein, this Agreement shall not be deemed to confer any rights upon any individual or entity which is not a party hereto (except the USBR) and the Parties expressly disclaim such third party benefit. 119,10 156 1 Q-0120 -5- 2301649-2-23-12-Redline CV W D & LQ 13. Waivers. No delay on the pare of any Party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party hereto of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege hereunder, nor shall any single or partial exercise of any right, power or privilege hereunder, preclude any other or further exercise of any other right, power or privilege hereunder. 14. Authority to Execute. Each individual executing this Agreement hereby represents and warrants that he or she has the full power and authority to execute this Agreement on behalf of the named Parties. 15. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument, 16. Default Interest. Any payment not paid when due shall bear simple interest equal to two percent (2%) of the delinquent payment for each month or portion thereof that such payment remains delinquent. 17. Jurisdiction. The Parties agree that any action or proceeding to enforce or relating to this Agreement shall be brought exclusively in the Federal or State courts located in Riverside County, California, and the Parties hereto consent to the exercise of personal jurisdiction over them by any such courts for purposes of any such action or proceeding. 18. Days. Unless otherwise specified, all references hereunder to "days" shall mean calendar days. [End - signatures on next pagel 1191015610-0120 _ 2301648-2-8-12-Redline cvm) & LQ 66 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year hereinabove written. Date: MAXdk 13 , 2012 A EST: r J is Femandez oard Seen tary APPROVED AS TO FORM: REDWINE & SHFRRILL, Bv: i ti. dim General Counsel Date: 3 /7 2012 ATT: — Susan Maysels Interim City Clerk APPROVED AS TO RUTAN & TUCKEE .32 Attorney "District" COAC:HELLA VALb TER DISTRI , a p yb�c agency f c ate of Cali aria` General Manager -Chief Engineer "City' CITY OF LA QUINTA, a California municipal corporation and ch rter city Bv:_ Interim City Manager 119/015610-0120 " _ _ 230i648-2-23-I2.R,&inc CV WD & LQ � COACHELLA CANAL NONSUBSIDEO CANAL SECTION EXHIBIT A LEGEND /J NON -SUBSIDED CANAL SECTION EXHIBIT "B" DESCRIPTION OF THE TWO DESIGN ALTERNATIVES Description of the proposed future construction project The proposed future construction project is intended to correct major flow deficiencies associated with the existing Coachella Canal starting at Mile Post 120.3 and extending south through the Pk —,A West Residential development. The loss of capacity within the existing open canal is the result of differential settlement between the section of the canal on the desert floor and the section of the canal that comes into close proximity with the Santa Rosa Mountains south of Avenue 53 and west of Jefferson Street (the "Non -Subsided Portion:"). Due to the grade differences between its subsided portion and Non -Subsided Portion the canal has lost over 50% of the original capacity that it was designed to convey, As a result of work by the District and Agency Staff, two design alt.-mates will be evaluated as a part of this Agreement to correct the flow capacity issues and are described as follows. 'the proposed underground piping option (Jefferson Street Alignment) generally follows Jefferson Street along the western parkway, starting at the intersection with the Coachella Canal and proceeding south to the intersection of Avenue 54. North of Avenue 54, the proposed circular pipe, with the final diameter to be determined through the preliminary design effort described within the agreement, will bend to the west along the north side of Avenue 54_ East of the existing canal, the proposed pipeline will curve southward and connect to the existing canal at a newly constructed drop structure located at Mile Post l21.8. This option will require the relocation of the existing L-4 Pump station, which is currently located 0.5 mile west of Jefferson Street, to a location closer to Jefferson Street, which will also be the location of an inlet structure for the open canal to closed conduit system conversion. In addition to the above mentioned construction, this option will require the relocation and reconnection of four active irrigation laterals and reconstruction of tire drop structure at the lower end to facilitate the lowering of the conveyance system with a now lower outlet elevation, 'fhe existing canal section would be abandoned, and removed to the extent necessary, and the surrounding area would be re-established to conform to the existing condition. The second option (Parallel Canal) would reconstruct an open canal, parallel and west of the existing canal within the current canal easement right of way. This parallel canal would start approximately a quarter mile south of the L- 4 Pump Station and reconnect to the existing canal section at the drop structure at Miles Post 121.8. The canal alternative will be designed to accommodate future subsidence by lowering tire downstream tie-in at the drop structure to an elevation lower than required to convey existing design flows. This new canal section would require reconnection of one irrigation lateral to the proposed canal section, reconstruction of the drop structure to facilitate the lowering of the outlet elevation. removal and baekfill of the concrete canal section and re-establishment of the surrounding area to the existing condition. 119,'015610-0120 EXI-IIBIT "B" 1301648-2-23-1?-Retllinc Cv WD & LQ EXHIBIT "C" FORM OF WRITTEN DISBURSEMENT REQUEST Ito be inserted) 119/015610-0120 -' 1301648-2-23.12-Redline CVWD&LQ EXHIBIT "Cp1 �NATER O�srR►C'( Established in 1918 as a public agency Coachella Valley Water District Directors: Peter Nelson, President - Div. 4 John P. Powell, Jr., Vice President - Div. 3 Patricia A. Larson - Div. 2 Debi Livesay - Div. 5 Franz W De Klotz - Div. 1 Frank Spevacek City of La Quinta P O Box 1504 La Quinta CA 92247-1504 Dear Frank: January 31, 2012 CIR MANAGERS DEP1. Officers: Steven B. Robbins, General Manager -Chief Engineer Julia Fernandez, Board Secretary Redwine and Sherrill, Attorneys File: 0001.3 1150.14 0332.7 Re: Cost Sharing Agreement dated March 13, 2012 ("Agreement') between the City of La Quinta ("City") and Coachella Valley Water District ("District') for the Design and Reconstruction of a Portion of the Coachella Canal Section 3 of the attached Agreement provides that the City and District will meet and confer for a thirty (30) day period after receipt of certain cost estimates "... during which the Parties shall determine if they jointly wish to pursue the construction of the Jefferson Street Alignment Alternative." The purpose of this letter is to extend the meet and confer requirement from thirty (30) days to June 1, 2013. By signature of this letter, the City and District agree that the second sentence of Section 3 of the Agreement will be amended to read as follows: "After both Cost Estimates are completed and provided to the City, the Parties on or before June 1, 2013 shall meet and confer to determine if they jointly wish to pursue the construction of the Jefferson Street Alignment Alternative." Except as set forth herein, the terms and conditions of the Agreement shall remain in full force and effect. AGREED: — Coachella Valley Water District By 0 •0 2 JWB, Acting General Manager AGREED: Attachment/Vas MJ:ch\cng\mj\13\City of La Quinta-Coachella Canal Cost Sharing p1L4d FEB -1 NQ