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CVWD - Valves & Manhole Adjustments 13AGREEMENT BETWEEN THE CITY OF LA QUINTA AND THE COACHELLA VALLEY WATER DISTRICT, FOR ADJUSTING VALVE OPERATOR WELLS AND MANHOLES RELATED TO STREET IMPROVEMENT PROJECTS THIS AGREEMENT ("Agreement") is entered into as of thisol day of SeCrte,,,, , 2013, by and between the City of La Quinta ("La Quinta"), a municipal corporation, and the Coachella Valley Water District ("CVWD"), a public agency of the State of California. La Quinta and CVWD are sometimes hereinafter individually referred to as a "Party" and/or collectively referred to as the "Parties." RECITALS WHEREAS, La Quinta is responsible for public streets within the City limits; and WHEREAS, street improvement projects may include asphalt overlays, which change the grade of the street; and. WHEREAS, La Quinta generally conducts multiple street improvement projects that change the grade of the streets throughout the year; and WHEREAS, CVWD has installed domestic water, non -potable water and sewer infrastructure within the streets in the public right-of-way, and CVWD has utility infrastructure located in the public streets, including valve operator wells and manholes; and WHEREAS, when street improvements cause changes to the grade of the street, CVWD's valve operator wells and manholes must be adjusted to grade in order to utilize them for their intended purposes; and WHEREAS, it is CVWD's responsibility to maintain access to its utility infrastructure in public streets; and WHEREAS, CVWD has the capability to adjust, or cause to be adjusted, the valve operator wells and manholes to grade. NOW, THEREFORE, the Parties mutually agree as follows: 1. La Quinta shall provide CVWD its proposed street improvement plan and budget for the current fiscal year by July 15. This will enable CVWD to adequately plan for any required infrastructure adjustments. 2. Election regarding performance of Utility Modifications a. La Quinta shall include in the bid schedule line items for adjusting valve operator wells and manholes to grade ("Utility Infrastructure Adjustments"). La Quinta will give CVWD a minimum of seven (7) business days' notice of the bid opening, which CVWD may attend. Within seven (7) business days after the opening La Quinta shall notify CVWD in writing of the bid amounts for the project, which include the amount allocated to the Utility Infrastructure Adjustments. b. Within seven (7) days of receipt of written notification of the bid amounts, CVWD shall provide La Quinta written notification of its election to: (i) approve the Utility Infrastructure Adjustments pursuant to the approved street maintenance contract ("Construction Contract") and CVWD's agreement, as set forth herein, to reimburse La Quinta for the cost of the Utility Infrastructure Adjustments provided that the cost shall not exceed the bid amount submitted to CVWD; or (ii) reject the Utility Infrastructure pursuant to the Construction Contract and CVWD's agreement to cause the Utility Infrastructure Adjustments to be performed on its own behalf. C. Failure of CVWD to provide La Quinta timely notice pursuant to subsection b above shall be construed to be an election by CVWD to approve the Utility Infrastructure Adjustments pursuant to the Construction Contract and CVWD's agreement to reimburse La Quinta for the cost of the Utility Infrastructure Adjustments, as more particularly set forth herein. 3. Contracting The Parties recognize, acknowledge and agree that La Quinta shall be the awarding body and shall be responsible for compliance and enforcement of the provisions of the California Labor Code, Government Code and Public Contract Code with respect to all projects covered hereunder. In addition to the foregoing, the City shall ensure the following: a. CVWD is named as an obligee under any labor and material payment bonds and contract performance bonds for the project. b. CVWD is named as an additional insured on any general liability insurance . required by La Quinta. c. CVWD and its officers, directors, employees, agents, successors and assigns are named as indemnified parties under all indemnifications; hold harmless provisions, waivers and releases in favor of La Quinta. d. CVWD shall be entitled to all warranties, guarantees and post completion bonds with respect to the project. 2 4. Construction The Parties agree that La Quinta shall cause construction of the project. The Parties agree that La Quinta shall advertise for, award, negotiate and supervise all contracts necessary for the construction of the project subject to CVWD's rights set forth in this Agreement, in accordance with applicable federal, state and local laws, including but not limited to, CEQA and La Quinta's public works requirements. 5. Inspection CVWD inspectors may inspect all work and materials pertaining to the Utility Infrastructure Adjustments. Construction that has been completed without a CVWD inspector present may be subject to CVWD's rejection. The Parties understand and agree that CVWD's inspection personnel shall have the authority to enforce the Plans, which authority shall include requiring that all unacceptable materials, workmanship and/or installation be replaced, repaired or corrected by La Quinta's contractors. 6. Change Orders La Quinta shall cause La Quinta's contractors to install the Utility Infrastructure Adjustments in strict accordance with the Plans and in accordance with the laws, rules and regulations of all governmental bodies and agencies having jurisdiction over the project. Any deviation from the Plans (with respect to the Utility Infrastructure Adjustments) must be approved by the CVWD in writing. Change orders for the project may be warranted due to a variety of reasons, including but not limited to, unforeseen circumstances or the need for construction of additional or changed improvements not contemplated by the Plans. Notwithstanding the foregoing, La Quinta shall not authorize its contractors to perform, and CVWD shall not be liable for any change order, extra work or alteration performed by La Quinta's contractors, unless authorization in writing from CVWD is given prior to the performance of such work. Any change order, extra work or alteration by La Quinta's contractor shall be based on a written request delivered to La Quinta within fifteen (15) days of the occurrence. La Quinta shall deliver its request to CVWD for approval or disapproval within five (5) days. 7. Completion Upon completion of the construction of the Utility Infrastructure Adjustments to the satisfaction of CVWD's inspectors, La Quinta shall notify CVWD, in writing, that the Utility Infrastructure Adjustments have been completed in accordance with the Plans. La Quinta shall provide the Parties evidence, that all persons, firms and corporations supplying work, labor, materials, supplies and equipment for the construction of Utility Infrastructure Adjustments have been paid and that no claims exist on behalf of any person, firm or corporation. 3 8. Reimbursement a. If CVWD elects to have Utility Infrastructure Adjustments performed by La Quinta's contractor(s), La Quinta shall pay for the work as part of the Construction Contract(s). CVWD shall pay for such work as more particularly set forth below. b. Within sixty (60) days of acceptance of, and payment for, Utility Infrastructure Adjustments, La Quinta shall present to CVWD a statement certifying its costs incurred in completing the work, and shall include copies of the contractor's invoices, evidence of payment, and such other information and records necessary to verify the cost of the work. C. By July 31 st of each year, CVWD shall pay to La Quinta the amount due for all Utility Infrastructure Adjustments performed on behalf of CVWD in the previous fiscal year, provided that (i) CVWD has received an invoice for such work as set forth in Section 7.b; (ii) such amount per utility location does not exceed the approved bid plus any approved change orders; and (iii) there is no dispute regarding the amount due or any defective work or materials in which case CVWD may withhold the disputed amount while the Parties determine, in good faith, what amounts are owed. In the event CVWD has failed to make a payment when due, La Quinta shall provide CVWD with written notice that such amount is due and subject to the provisions of this subsection, CVWD shall make payment within ten (10) days after receipt of such notice. d. La Quinta agrees to keep all project contracts and records for a period of not less, than three (3) years from the date notice of completion is filed by La Quinta for the street maintenance project. La Quinta also agrees that all such files and records shall be made available to CVWD upon its reasonable request. 9. Notices a. All notices hereunder must be in writing and, unless otherwise provided herein, shall be deemed validly given if sent by personal service (including express or courier service, with proof of delivery), by electronic communication, whether by telex, telegram, e-mail or facsimile (if confirmed by writing sent by registered or certified mail, postage prepaid, return receipt requested), or by certified or registered mail, postage prepaid, return receipt requested, addressed as follows: City of La Quinta Attn: Timothy R. Jonasson, P.E. Director of Public Works City of La Quinta Public Works 78A95 Calle Tampico La Quinta, CA 92253 Facsimile: (760) 777-7155 E-Mail Address: tjonasson@la-quinta.org 0 Coachella Valley Water District Attn: Mark Johnson, P.E. P.O. Box 1058 Coachella, CA 92236-1058 Facsimile: (760) 391-9637 E-Mail Address: mjohnson@cvwd.org b. If the address or phone number where either Party may be contacted is changed, such Party will immediately notify the other party of such change. Any such communication, notice or demand shall be deemed to have been duly given or served on the date personally served, if by person, one (1) day after the date of confirmed dispatch, if by electronic communication, or three (3) days after being placed in the U.S. Mail, if mailed. 10. Legal Relations and Responsibilities a. Nothing in the provisions of this Agreement is intended to create duties or obligations to or rights in third parties to this Agreement. b. Each Party hereto shall indemnify, defend and hold the other Party and its council members, directors, officers, agents, representatives, servants and employees and their respective successors and assigns (collectively, "Representatives") harmless from any and all liabilities, claims, demands, debts, suits, actions and causes of actions, including but not limited to, property damage, personal injury or wrongful death, arising out of or in any manner connected with (i) any act or omission of such indemnifying Party hereunder, or its Representatives, done or performed pursuant to the terms and provisions of this Agreement; and (ii) any breach by a Party of its obligations under this Agreement. c.. The Parties hereby agree that this Agreement shall not apply in those situations where (i) CVWD has prior rights in the streets, including constructing its facilities in the streets prior to the construction of the street and (ii) California law requires La Quinta to pay for or reimburse CVWD for the cost of adjusting valve operator wells and manholes to grade. 11. Counterparts 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. 12. Termination This Agreement may be terminated by either Party effective thirty (30) days following execution of written notification of termination. Termination shall not relieve CVWD of its obligation to reimburse La Quinta for any Utility E 13. 14. 15. 16. 17 Infrastructure Adjustments elected to be performed prior to termination or any of the obligations of either Party that accrued prior to termination. Entire Agreement This instrument and other writings referenced herein, contain the entire agreement between the parties relating to the subject matter hereof and supersede 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. Attorneys' 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 attomeys' fees. Severability If any provision of this Agreement shall be ruled invalid, illegal or unenforceable, the Parties shall: (a) promptly negotiate a substitute for the provisions which shall to the greatest extent legally permissible, effect the intent of the Parties in the invalid, illegal or unenforceable provision, and (b) negotiate such changes in, substitutions for or additions to the remaining provisions of this Agreement as may be necessary in addition to and in conjunction with subsection (a) above to give effect to the intent of the Parties without the invalid, illegal or unenforceable provision. To the extent the Parties are unable to negotiate such changes, substitutions or additions as set forth in the preceding sentence, and the intent of the Parties with respect to the essential terms of the Agreement may be carried out without the invalid, illegal or unenforceable provisions, the balance of this Agreement shall not be affected, and this Agreement shall be construed and enforced as if the invalid, illegal or unenforceable provisions did not exist. Authority 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. Applicable 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 2 IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed as of the date first written above. CITY OF LA QUINTA By: .armi aj-0,-L - on Ado Ma o (Signatur to be otarized) APPROVED AS TO ATTEST: By: Susan Maysels City Clerk APPROVED AS TO FO . By: . Katherine 4Jentso4t�� City Attorney C DACWrrLLA VALLEY WATER DISTRICT By: AA.t •�; J. A ETT Ge ral anager (Signature to be Notarized) APPROVED AS TO FORM: REDWINE & SHERRILL By:� Redwine & Sherrill, General Counsel ATTEST: ,r By: LIA FERI DEZ oIrd Secretary CVWD NOTARY ACKNOWLEDGMENT State of California } }SS County of } On 20 before me, a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same .in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) CITY NOTARY ACKNOWLEDGMENT State of California ) ) County of Riverside 1 On October I (S . 2013, before me, SUSAN MAYSELS, Notary Public, personally appeared DON ADOLPH who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. SUSAN MAMBELS WITNESS my hand and official seal. commission ♦ 2017250 ti Notary Public - Camornia i Rieenide County Signature Comm. Ex free A r 13, 2017 (seal) DOCUMENT: AGREEMENT BETWEEN THE CITY OF LA QUINTA AND THE COACHELLA VALLEY WATER DISTRICT FOR ADJUSTING VALVE OPERATOR WELLS AND MANHOLES RELATED TO STREET IMPROVEMENT PROJECTS dated 9/27/2013, containing 7 pages.