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Riverside Co/License & Indemnity-Fred Waring 08I LICENSE AND INDEMNITY AGREEMENT THIS LICENSE AND INDEMNITY AGREEMENT ("Agreement") is made, to be effective theday of 2008, 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 A. This Agreement relates to that portion of a public street commonly know as Fred Waring Drive, between Adams Street and Port Maria Road, a length of approximately 3300 feet (the "Project Site"). A depiction of the Project Site is attached hereto as Exhibit "A" and incorporated herein by this reference. The north side of Fred Waring Drive in the Project Site falls under the jurisdiction of the County, while the south side is under the City's jurisdiction. The centerline of the existing roadway is generally located on the boundary line between the City and the County. The entire road width of Fred Waring Drive west of Adams Street and east of Port Maria Road falls under the City's jurisdiction. B. The County proposes to install certain temporary roadway modifications in portions of the Project Site for the purpose of striping four lanes on Fred Waring Drive to facilitate traffic flow, and also wishes to make permanent improvements. The temporary modifications include, but are not limited to, the addition of lanes as a result of restriping of the roadway, and shifting the roadway centerline approximately six feet to the south, into the City's jurisdiction (the "Interim Improvements"). The Interim Improvements would be installed by the County on Fred Waring Drive from Adams Street to Old Harbour Drive. The Interim Improvements will require the preparation and submittal of a traffic control plan and roadway improvement plans, both of which are subject to the written approval of the City's Public Works Director. The County has indicated that the Interim Improvements will be temporary. However, the City and the County have not agreed upon the appropriate design of the permanent roadway improvements to the Project Site ("Permanent Improvements"), and the City is generally not in favor of the shifting of the centerline of the roadway, even on a temporary basis as a means to avoid acquisition of right-of-way. The City has expressed further concerns to the County based upon the design of the Interim Improvements. The County has indicated that it is willing to defend and indemnify the City from any liability that would arise from the these conditions of concern. C. The County has indicated that it wishes to carry out the Interim Improvements, and the County believes that the City and the County will come to an agreement regarding the scope and nature of the Permanent Improvements. The scope and nature of the Permanent Improvements will be subject of a separate agreement between the parties. Because the County proposes to carry out the Interim Improvements on a portion of the Project Site that is within the City's jurisdiction, the County needs to first obtain a temporary license from the City in order to install the Interim Improvements. The City wishes to ensure that the Interim Improvements do not become permanent. Further, the County has agreed that if the parties do not come to an agreement regarding the Permanent Improvements within the time period set forth in this Agreementslift you ty wil�,promptly restore the roadway to the configuration it was in (including the lane striping configuration) prior to the Interim Improvements, at the County's sole expenses and t� the City.'.S,reasonable satisfaction. 06.03.08 3.75 D. Because the Interim Improvements are a County project, the City has demanded, and the County has agreed, to fully indemnify the City for all claims in any way relating to the Interim Improvements. E. Subject to the provisions of this Agreement, County and the City now desire to enter this Agreement to provide a conditional and temporary license to the County to allow it to install, on a temporary basis, the Interim Improvements and to require the County to defend and indemnity to the City from and for any and all liability from the Interim Improvements or the public's use thereof prior to the Permanent Improvements. NOW, THEREFORE, incorporating the foregoing recitals and in consideration thereof, and in consideration of the mutual covenants and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: AGREEMENT 1. Grant of License. The City hereby grants a temporary, conditional license to the County to permit the temporary encroachment on the following areas within the City: (1) up to 15 feet south of the existing centerline of Fred Waring for the Interim Improvements, including the temporary restriping; (2) a construction encroachment area of up to 25 feet south of centerline within the Project Site; and (2) a transition area 500 feet west of Adams and 500 feet east of Port Maria to allow for traffic control and transitions to the construction zone. The plans for the Interim Improvements and the traffic control plan shall be subject to review and written approval by the City's Public Works Director prior to any work taking place within the City's right-of-way. Work hours for taking traffic lanes in order to install the Interim Improvements shall be restricted to Monday through Friday, 8:30 am to 3:30 pm, with no work on Saturdays, Sundays or holidays without prior approval by the Public Works Director. Access to driveways shall be maintained with minimum delays to residents at all times. 2. Term of License: Duty to Restore. The term of the license shall commence on the date that this agreement has been executed by all parties and shall end 24 months thereafter. If the City and the County have not reached an agreement on the nature and scope of the Permanent Improvements within that 24-month period, the County shall restore Fred Waring Drive to the configuration it was in prior to the installation of the Interim Improvements, including restriping the center line at the City boundary and restoring the lane configuration and striping that existed prior to the Temporary Improvements. The restoration shall be solely at the County's expense, and shall be subject to the reasonable approval of the City's Public Works Director. If the County fails to fully restore Fred Waring Drive to its previous condition, the City shall have the right to complete the restoration, and the County shall promptly reimburse the City for the costs incurred by the City in completing the restoration. The restoration shall be completed by the County within 180 days from the expiration of the 24-month period, and the City hereby grants a license to the County to complete the restoration during that period. The restoration shall be completed pursuant to restoration and traffic control plans which must be approved by the City's Public Works Director. 3. Indemnity & 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, r068/015610-0002 899956 08 a05/30/08 -2- "Claims"), arising from any accident, loss or damage to persons or property happening or occurring as a proximate result of any work undertaken by the County under this license granted pursuant to this Agreement, or which arises out of, relates to, or in any way involves the design, construction, installation, or use of the Interim Improvements, including each and every design feature utilized in the Interim 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 County's obligations under this provision shall commence from the date the construction of the Interim Improvements commences and shall continue in effect that either: (1) the roadway is fully restored to its current condition, which condition is accepted as being fully restored by the City's Public Works Director; or (2) the Permanent Improvements are agreed upon and fully installed. Nothing in this paragraph shall preclude the City from requested defense and indemnification as a condition to its approval of the Permanent Improvements. 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 Interim Improvements made to the Project Site or provide proof of self insurance coverage for the Interim 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. 4. Miscellaneous. 4.1 Attorneys' Fees. In the event of any dispute between the parties hereto involving this 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. 4.2 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 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 1068/015610-0002 89995609 a05/30/08 -3- 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 Thomas P. Genovese, 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 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 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. 4.3 Successors and Assigns. This Agreement shall be binding on the parties hereto and their respective heirs, successors, representatives, transferees and assigns. 4.4 No Third Parties Benefited. This Agreement is made for the sole benefit and protection of the City and County, and their respective successors and assigns. No other person shall have any right of action or right to rely thereon. 4.5 Time of the Essence. Time is of the essence of each of the terms, covenants and conditions of this Agreement. 4.6 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 between the parties hereto or their agents with respect to this transaction are merged in this 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. 4.7 Modification. Any amendments or modifications to this Agreement must be in writing and executed by all the parties to this Agreement. 1068/015610-0002 899956 08 a05/30/O9 -4- 4.8 Interpretation; Governing Law. This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. 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. 4.9 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. 4.10 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. 4.11 Counterparts. This Amendment may be executed in several 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 Amendment 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. SIGNATURE PAGE FOLLOWS 1068/015610-0002 899956.08 a05/70/08 -5- IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date set forth above. CITY OF LA QUINTA, a California charter city By: Thomas P. Genovese Its: City Manager A Veronica Montecmo, City Clerk APPROVE S TO FORM: ef M. Katherin Jen City Atto COUNTY OF RIVERSIDE By: ATTEST: Clerk of the Board Nancy Romero / / Deputy County Clerk APPROVED AS TO FORM: Joe S. Rank, County Counsel yG'fr7t�7'rj Sy thia M. Gunzel, Delluty County Counsel Wby Wilson, Board of Sui 1068/01561D-0002 899956 08 a05/30/08 EST 06.03.08 3.75 Contract No. le © % " 01,2- MverSide Co. Transportation FIRST AMENDMENT TO LICENSE AND INDEMNITY AGREEMENT THIS FIRST AMENDMENT TO LIQENSE AND �� INDEMNITY AGREEMENT ("Amendment"), is made, to be effective the _ day of N)YRiMWA— , 2010, 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 the 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 License and Indemnity Agreement; and WHEREAS, the Original License is due to expire twenty-four (24) months after the date that this agreement has been executed by all parties; and WHEREAS, the Original License together with this Amendment are collectively referred to herein as the "License'; and WHEREAS, since the City and the County have been negotiating and intend to enter into that certain Memorandum of Understanding to address each party's roles and responsibilities relating to alternate design choices, CEQA consideration and a final agreement for permanent roadway improvements if the road improvement project is ultimately approved, an extension for the term of the License is warranted; and WHEREAS, the City and the County now desire to extend the term of the License. NOW THEREFORE, for good and valuable consideration the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. Term of License. Section 2 of the License is hereby amended by the following: "The term of the License shall be extended for six (6) months from the date the Original License was due to expire." 2. Except as modified or supplemented by this First Amendment to License, all provisions of this License shall remain in full force and effect. 3. This First Amendment to License shall not be binding or consummated until its approval by the Board of Supervisors of Riverside County and the City Council of La Quinta. IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above. CITY OF LA QUINTA, a California charter city By: Thomas P. Genovese Its: City Manager T: Veronica Montecino, City Clerk Zat OVED AS FO he me Je y Attorney ATTEST: Clerk of the Board Kecia Harper -Them A JA Deputy APPROVED AS TO FORM: Pamela J Walls, County Counsel , tT1V rG jz Synthi . Gunzel, Deputy C unty Counsel COUNTY OF RIVERSIDE, a political subdivision of the State of California Marion Ashley, Chairman Board of Supervisors Nov 0 2 2010 & SECOND AMENDMENT TO LICENSE AND INDEMNITY AGREEMENT THIS SECOND AMENDMENT TO LICENSE AND INDEMNITY AGREEMENT ("Amendment"), is made, to be effective the N 7 degvf, , 2012, 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 the 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 License and Indemnity Agreement; and WHEREAS, the City and the County have entered into that First Amendment to License and Indemnity Agreement, dated November 2, 2010, ("First Amendment") WHEREAS, the First Amendment expired six (6) months after the date that the agreement had been executed by all parties; and WHEREAS, the Original License together with both Amendments are collectively referred to herein as the "License"; and WHEREAS, since the City and the County have been negotiating and are entering into that certain Memorandum of Understanding to address each parry's roles and responsibilities relating to alternate design choices, CEQA consideration and a final agreement for permanent roadway improvements. if the road improvement project is ultimately approved, an extension for the term of the License is warranted; and WHEREAS, the City and the County now desire to extend the term of the License. NOW THEREFORE, for good and valuable consideration the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: Term of License. Section 2 of the License is hereby amended by the following: "The term of the License shall be extended to December 31, 2012." 2. Except as modified or supplemented by this Second Amendment to License, all provisions of this License shall remain in full force and effect. 3. This Second Amendment to License shall not be binding or consummated until its approval by the Board of Supervisors of Riverside County and the City Council of La Quinta. IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above, CITY OF LA QUINTA, a California charter city By: Mark Weiss Interim City Manager ATTEST: Susan Maysels, Interim C Clerk APPROVED AS TO FORM: COUNTY OF RIVERSIDE, a political subdivision of the State of California J ATTEST: Clerk of the Board Kecia HarperThein APPROVED AS TO FORM: Pamela J Walls, County Counsel Synthia J , Gunzel, Deputy Co ty Counsel roll 3Co MAY 01 2012