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Riverside Co/License & Indemnity-Fred Waring 14Contract No. 10-09-012 Riverside Co. Transportation PERMANENT LICENSE AND INDEMNITY AGREEMENT THIS PERMANENT LICENSE AND INDEMNITY AGREEMENT ("Agreement"), is made to be effective this 20th day of May, 2014, by and between the CITY OF LA QUINTA, a California Charter city ("City" , and the COUNTY OF RIVERSIDE, a political subdivision of the State of California ("County"), with reference to the following: RECITALS WHEREAS, the City and the County have entered into that certain License and Indemnity Agreement dated June 3, 2008, ("Original License") pursuant to which City granted a temporary, conditional license to the County to permit a temporary encroachment along Fred Waring, between Adams Street and Port Maria Road, to install interim roadway improvements ("Interim Improvements") and County has accepted the license and agreed to indemnify the City for these Interim Improvements, as more particularly described in the Original License; and WHEREAS, the City and the County have entered into that First Amendment to License and Indemnify Agreement, dated November 2, 2010, ("First Amendment") to extend the term of the Original License; and WHEREAS, the City and the County have entered into that Second Amendment to License and Indemnify Agreement, dated May 1, 2012, ("Second Amendment") to provide for the second extension of the term of the Original License; and WHEREAS, the City and County have entered into that certain Memorandum of Understanding dated May 1, 2012 ("MOU") to address each party's roles and responsibilities relating to alternate design choices, CEQA consideration and a final agreement for permanent roadway improvements referenced as the Fred Waring Drive Improvements, if a road improvement project is ultimately approved, an extension for the term of the Original License is warranted; and WHEREAS, the County, as lead agency, pursuant to the California Environmental Quality Act, has prepared an Initial Study/Mitigated Negative Declaration ("IS/MND") for Environmental Assessment No. 42564 to analyze the Fred Waring Drive Improvements and circulated the IS/MND for public review and comment between October 20, 2012 and November 22, 2012; and WHEREAS, on January 8, 2013, the Board of Supervisors for the County of Riverside, based upon the findings incorporated therein, adopted an Initial Study/Mitigated Negative Declaration for Environmental Assessment No. 42564 and a Mitigation Monitoring and Reporting Program for the Fred Waring Drive Improvement Project ("Project") and approved the Project; and WHEREAS, the City and County concur on the selection of Alternative No. 1 ("Alternative") and City has reviewed and approved the design plans for this Alternative; and 11 1 Perm Lic & Indem Agmt - Fred Waring Dr County - City of La Quinta MAY 202014 ' Il WHEREAS, plans prepared by County provide for landscaping improvements in accordance with the requirements of the MOU and said landscape improvements have been reviewed and approved by City; and WHEREAS, plans prepared by County include rubberized asphalt overlay on the road surfaces for attenuation of noise in accordance with the requirements of the MOU; and WHEREAS, plans prepared by County include construction of sound walls required for mitigation of noise in accordance with the requirements of the MOU; and WHEREAS, County has prepared traffic control and roadway improvement plans in accordance with the requirements of the MOU and said plans have been reviewed and approved by City; and WHEREAS, County has procured adequate funds to perform the design and complete the construction of the proposed improvements; and WHEREAS, the City and the County now desire to enter into this Permanent License and Indemnity Agreement that shall supersede the Original License, the First and Second Amendments thereto and the MOU to implement the Project and proceed with construction of those proposed improvements; and NOW, THEREFORE, incorporating the foregoing recitals and in consideration thereof and for good and valuable consideration of the mutual covenants and conditions contained herein, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Grant of License. The City hereby grants a license to the County to permit the encroachment onto City right-of-way in order to construct the Alternative proposed improvements in accordance with the plans as approved by City and in accordance with an encroachment permit issued by the City to the County prior to commencement of construction. The City grants the County a waiver for payment of fees for issuing said encroachment permit. 2. Term of License. The term of the license shall commence on the date that this Agreement has been fully executed by all parties and shall continue until such time this Agreement is no longer needed or if the parties mutually agree in writing to terminate this Agreement. 3. Terms for Inclusion from MOU. Pursuant to the MOU, the parties have agreed that the Permanent License and Indemnity Agreement shall include the terms provided below in Sections 3.1 through 3.5. 3.1 In as much as the Project affects existing landscape improvements the County shall be required to install new irrigation, landscaping and landscape lighting on both the north and south sides of the Project Site. The landscaping must 2 Perm Lic & Indem Agmt - Fred Waring Dr County- City of La Quinta be drought tolerant and should include an option for artificial turf within the median(s) on Fred Waring Drive. The landscaping must be based on specifications prepared by the County and approved by the City and the Coachella Valley Water District. The County and City will share in the maintenance cost of the median landscaping and irrigation water equally. County and City street maintenance responsibilities will remain as before the project. 3.2 The project will include a rubberized asphalt overlay as a measure to attenuate noise for the local residents. As a result of the Noise Study prepared for the project, the project will also, include a sound wall between Adams Street to Dune Palms Drive to be located on the south side of the road between the roadway and the residential properties. The sound wall is provided to mitigate projected noise levels that would exceed 65 dBA Community Noise Equivalent Level ("CNEL"). The sound wall height will not exceed eight feet as recommended per the Noise Study. The costs associated with the design and construction of a sound wall [is] considered valid project cost[s] and eligible for reimbursement by [the Coachella Valley Association of Governments] ("CVAG"). 3.3 The County shall be required to submit a traffic control plan and roadway improvement plans, which are subject to the approval of the Public Works Director of the City. The traffic control plan will be part of an encroachment permit which may include additional measures to insure the safety of motorists during construction of the project and to cover City inspection costs. 3.4 The County shall be responsible for 100% of the design and construction costs for the "Project', Alternative [No.] 1 or variation thereof as mutually agreed to. The County shall also be solely responsible for repairing any damaged street or landscape improvements resulting from the Project. 3.5 All construction will be dependent on the improvements being eligible under CVAG's policies as outlined in Section IV, "Cost Determination/Expense Eligibility" of CVAG's Policies and Procedures Manual and CVAG agreeing to reimburse 75% of the cost to construct the access point. The remaining 25% cost shall be paid by the County. [*corrections made are placed in brackets] 3.6 The City shall maintain the median landscaping. The County and City shall pay equal shares of the cost for maintaining said landscaping. The County will pay the City for the County share of the cost upon receipt of a request for reimbursement by the City. 4. Indemnity and Release. The County agrees to defend, indemnify, and hold the City, its officers, officials, representatives, agents and employees (collectively, "Indemnified Parties") harmless from any and all claims, actions, liabilities, or legal proceedings (collectively, "Claims"), arising from any accident, loss or damage to persons or property happening or occurring as a proximate result of any work 3 Perm Lic & Indent Agmt - Fred Waring Dr County - City of La Quinta undertaken by the County under this License and Indemnification Agreement, or which arises out of, relates to, or in any way involves the design, construction, installation, or use of the Improvements, including each and every design feature utilized in the Improvements and the driveway connections to Fred Waring Drive. Upon receipt of any Claim covered by this provision, the Indemnified Parties shall tender the Claim to the County, and the County shall provide the Indemnified Parties' defense in the matter, which includes reasonable attorneys' fees and costs, at no cost to Indemnified Parties. The Indemnified Parties shall fully cooperate in the defense of any such Claim. The County agrees to promptly pay any and all final judgments or awards of damages, costs, or any other monetary awards against the Indemnified Parties covered by this provision. This provision also shall not apply to Claims where the cause of injury or damage is determined by a final judgment or ruling, no longer subject to appeal, to be solely the result of City s negligence, willful misconduct or gross misconduct with regard to the maintenance of City roadways or median improvements within City limits. To the extent the City's negligence, willful misconduct or gross misconduct with regard to the maintenance of City roadways or median improvements within City limits is determined by a final judgment or ruling, no longer subject to appeal, to be only one of two or more proximate causes of said injury or damages, the County's defense and indemnity obligations to City shall be reduced on a pro rata basis in accordance with the determinations included in such final judgment or ruling. The Count -y s obligations under this provision shall commence from the date the construction of the Improvements commences and shall continue in perpetuity. Upon request by the City, the County either shall add the Indemnified Parties as "additional insureds' to any and all of the County's insurance policies which might relate to the Improvements made to the Project Site or provide proof of self- insurance coverage for the Improvements made to the Project Site. However, the County agrees that the providing of said insurance coverage does not relieve the County of the obligations assumed within this provision. S. Miscellaneous. 5.1 Attorneys' Fees. In the event of any dispute between the parties hereto involving this License and Indemnity Agreement, the prevailing party shall be entitled to recover, and the other party agrees to pay, all reasonable fees, expenses and costs, including but not limited to attorneys' fees. 5.2 Notices. Any notice which either party may desire to give to the other party must be in writing and shall be effective (i) when personally delivered by the other party or by messenger or courier; (ii) three (3) business days after deposit in the 4 Perm Lic & Indem Agmt- Fred Waring Dr County - City of La Quinta United States mail, registered or certified; (iii) one (1) business day after deposit before the daily deadline time with a reputable overnight courier or service; or (iv) upon receipt of a telecopy or fax transmission (as evidenced by a computer generated receipt confirming a successful transmission), provided a hard copy of such transmission shall be thereafter delivered in one of the methods described in the foregoing (i) through (iii); in each case postage fully prepaid and addressed to the respective parties as set forth below or to such other address and to such other persons as the parties may hereafter designate by written notice to the other parties hereto: If to City: City of La Quinta Frank J. Spevacek, City Manager 78-495 Calle Tampico La Quinta, California 92253 With a copy to: Rutan & Tucker, LLP M. Katherine Jenson 611 Anton Blvd., Suite 1400 P.O. Box 1950 Costa Mesa, CA 92628-1950 If to County: Riverside County Transportation Department Juan C. Perez, Director of Transportation 4080 Lemon Street Riverside, CA 92501 With a Copy to : County of Riverside Clerk of the Board P.O. Box 1147 Riverside, CA 92502-1147 If to CVAG: Coachella Valley Association of Governments Tom Kirk, Executive Director 73-710 Fred Waring Drive, Suite #200 Palm Desert, CA 92260 Either party may from time to time, by written notice to the others, designate a different address which shall be substituted for the one above specified, and/or specify additional parties to be notified. 5.3 Successors and Assigns. This Agreement shall be binding on the parties hereto and their respective successors. 5.4 No Third Parties Benefited. This Agreement is made for the sole benefit and protection of the City and County, and their respective successors. No other person shall have any right of action or right to rely thereon. Perm Lic & Indem Agmt- Fred Waring Dr County - City of La Quinta 5.5 Entire Agreement. This Agreement contains the entire agreement of the parties hereto with respect to the matters covered hereby, and all negotiations and agreements, statements or promises, including the First and Second Amendments and the MOU between the parties hereto or their agents with respect to this transaction are merged in this Permanent License and Indemnity Agreement, which alone expresses the parties' rights and obligations and if not contained herein shall not be binding or valid against either of the parties hereto. 5.6 Modification. Any amendments or modifications to this Agreement must be in writing and executed by all the parties. 5.7 Interpretation. The Parties hereto have negotiated this Lease at arm's length and have been advised by their respective attorneys, or if not represented by an attorney, represent that they had an opportunity to be so represented and no provision contained herein shall be construed against County solely because it prepared this Lease in its executed form. Titles and captions are for convenience only and shall not constitute a portion of this Agreement. As used in this Agreement, masculine, feminine or neutral gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates. 5.8 Governing Law and Venue. This Agreement is to be construed under the laws of the State of California. The parties agree to the jurisdiction and venue of the appropriate courts in the County of Riverside, State of California. Any action at law or in equity brought by either of the Parties hereto for the purpose of enforcing a right or rights provided for by this Agreement shall be tried in a court of competent jurisdiction in the County of Riverside, State of California, and the Parties hereto waive all provisions of law providing for a change of venue in such proceedings to any other county. 5.9 No Waiver. No delay or omission by either party hereto in exercising any right or power accruing upon the compliance or failure of performance by the other party hereto under the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either party hereto of a breach of any of the covenants, conditions or agreements hereof to be performed by the party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions thereof. 5.10 Severability. If any term, provision, condition or covenant of this Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this 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. 6 Perm Lic & Indent Agmt - Fred Waring Dr County - City of La Quinta 5.11 Counterparts. This Agreement may be executed in counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. The parties may also deliver executed copies of this Agreement to each other by facsimile, which facsimile signatures shall be binding. Any facsimile delivery of signatures shall be followed by the delivery of executed originals. IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above. CITY OF LA QUINTA, A California charter c Frank Its: City)l ATTEST: By: Susan Maysels, C Clerk APPROVED AS TO FORM: By: SOM IN COLWERPARY M. Katherine Jenson, City Attorney COUNTY OF RIVERSIDE, a Political subdivision of the State of California By., By:.` Jeff S Chairman Its: ciS pervisors ATTEST: Clerk of the Board I MEN" ,• I APPROVED AS TO FORM: PAMELA J WALLS, County Counsel By: synt'IiaM•r RAtV'CIA Mjealp- Deputy County Counsel Perm 6ic & Indem Agmt - Fred Waring Dr County - City of la Quinta 5.11 Counterparts. This Agreement may be executed in counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. The parties may also deliver executed copies of this Agreement to each other by facsimile, which facsimile signatures shall be binding. Any facsimile delivery of signatures shall be followed by the delivery of executed originals. IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above. ATTEST: um SIGNED IN COUNTERPART Susan Maysels, City Clerk APPROV;7 T416 By: AM1. Kathen, City Attorney ATTEST: Clerk of the Board Kecia Harper -Them a Deputy 7 Perm Lit & lndemAgrot -Fred Waring Dr . County- City of La Quinra CITY OF LA QUINTA, A California charter city By. SIGNED IN COuoi i cnpART By: Frank J. Spevacek Its: City Manager COUNTY OF RIVERSIDE, a Political subdivision of the State of California By: By: Jeff Stone, Chairman Its: Board of Supervisors APPROVED AS TO FORM: PAMELA J WALLS, County Counsel 57 Synthia M. Gunzel Deputy County Counsel