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HomeMy WebLinkAboutContract 1783221380 LICENSE AGREEMENT Whitewater River — Right Bank Levee, Stage 2 Project No. 6-0-00250 Encroachment Permit No. 3550 The Riverside County Flood Control and Water Conservation District, a body politic, (the "DISTRICT"), and the City of Cathedral City, a municipal corporation of the State of California, (the "CITY"), hereby agree as follows: RECITALS A. DISTRICT owns, operates and maintains Whitewater River — Right Bank Levee (the "LEVEE"), principally located in City of Cathedral City; and B. LEVEE is an essential and integral part of DISTRICT's regional system of stormwater management infrastructure that provides critical flood control and drainage to the cities of Cathedral City and Palm Springs, and adjacent unincorporated areas; and C. CITY has budgeted for and plans to: (i) design, construct and replace the existing low water crossing with approximately 1,056 lineal feet of slab bridge, roadway segments and ancillary structures (the "CROSSING") within Cathedral Canyon Drive, (ii) reconstruct portions of LEVEE and install new slope protection (together known as the "SLOPE PROTECTION"), and (iii) construct other concrete and rip rap structures within the wash (the "AUXILIARY STRUCTURES). Together, CROSSING, SLOPE PROTECTION, and AUXILIARY STRUCTURES are hereinafter called "BRIDGE", as shown in concept in yellow on Exhibit A, attached hereto and made a part hereof; and D. Said BRIDGE will span LEVEE right of way, (the "LEVEE RIGHT OF WAY"), as shown in concept in red on Exhibit A, for public purposes, including vehicular traffic, bicycling, and pedestrian usage; and E. LEVEE's flood control function is sporadic in nature and thus, construction 1 AUG 28 2018 t t, 221380 and operation of BRIDGE may be accJmmodated within LEVEE RIGHT OF WAY to the extent that such uses do not unreasonably interfere with LEVEE's principal function or DISTRICT's ability to operate and maintain LEVEE; and F. CITY will act as the sole lead agency pursuant to the California Environmental Quality Act (CEQA). As such, CITY will have the corresponding responsibility to fulfill the obligations of a CEQA lead agency with respect to BRIDGE; and G. Subject to the provisions of this License Agreement, DISTRICT is willing to (i) allow CITY to cause the construction of BRIDGE within its LEVEE RIGHT OF WAY, (ii) allow CITY to operate and maintain the portion of BRIDGE located within its LEVEE RIGHT OF WAY for public convenience, and (iii) allow City to take over operation, repair, and maintenance of a portion of LEVEE starting from Cathedral Canyon Drive extending downstream to the terminus of BRIDGE project, as shown in concept in green on Exhibit A, ("CITY LEVEE"); and H. In accordance with the provisions of this License Agreement, CITY will (i) prepare, or cause to be prepared, plans and specifications for BRIDGE and submit to DISTRICT for its review and written approval, (ii) cause the construction, inspection, operation, repair, and maintenance of BRIDGE at no cost to DISTRICT, (iii) conduct periodic safety inspections of BRIDGE, (iv) accept ownership and responsibility for the structural integrity of BRIDGE, and (v) indemnify, defend, and hold DISTRICT harmless from any claims arising from public's use of BRIDGE or CITY's responsibilities in connection therewith or the condition thereof; and I. It is in the public interest to proceed with this License Agreement. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: -2 221380 SECTION I CITY shall: 1. Pursuant to CEQA, assume lead agency role and responsibility for preparation, circulation and adoption of all necessary and appropriate CEQA documents pertaining to construction, operation and maintenance of BRIDGE. 2. Prior to constructing any improvements or performing any physical modifications within LEVEE RIGHT OF WAY, prepare or cause to be prepared, plans and specifications for BRIDGE (the "IMPROVEMENT PLANS"), and submit to DISTRICT (Attn: Operations Engineering) for review and written approval. 3. Pay all costs associated with preparation of IMPROVEMENT PLANS and DISTRICT's review and approval thereof. 4. Pay all costs associated with DISTRICT's preparation and administration of this License Agreement. 5. Secure, at its sole costs and expense, all necessary permits, approvals, licenses or agreements as may be required by any federal, state or local resource or regulatory agencies, as may be needed to construct, inspect, operate and maintain BRIDGE. 6. Obtain an encroachment permit from DISTRICT, pursuant to its rules and regulations and comply with all provisions set forth therein, prior to commencing construction of BRIDGE or any other improvements within LEVEE RIGHT OF WAY. 7. Prior to commencing construction of BRIDGE within LEVEE RIGHT OF WAY, furnish DISTRICT with copies of all permits, approvals or agreements as may be required by any federal, state or local resource and/or regulatory agencies for the construction, operation, inspection, and maintenance of BRIDGE. Such documents include but are not limited to those issued by the U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers, California Regional 3 221380 Water Quality Control Board, California Department of Fish and Wildlife, the State Water Resources Control Board, and the Coachella Valley Conservation Commission (the "REGULATORY PERMITS"). 8. Assume sole responsibility for compliance with the requirements of all REGULATORY PERMITS, including any amendments thereto, pertaining to the construction, operation, inspection, and maintenance of BRIDGE. 9. Ensure that REGULATORY PERMITS, including any subsequent renewal or amendments thereto, will not (i) unreasonably impede DISTRICT's ability to perform all necessary operation and maintenance activities for LEVEE as determined by DISTRICT, or (ii) include any stipulations that would result in additional mitigation obligations being placed upon DISTRICT for maintenance operations within LEVEE RIGHT OF WAY. 10. Cause BRIDGE to be constructed, in accordance with IMPROVEMENT PLANS approved by DISTRICT, and pay all costs associated therewith. 11. Not permit any change to, or modification of, DISTRICT permitted IMPROVEMENT PLANS without the prior written permission and consent of DISTRICT. 12. Assume sole responsibility for the design, construction, operation, inspection, repair, and maintenance of BRIDGE and CITY LEVEE, including all necessary modifications, repairs, corrections or temporary removal as reasonably deemed necessary by DISTRICT for the continuing function, reconstruction, repair or operation and maintenance of LEVEE 13. Within LEVEE RIGHT OF WAY, (i) assume sole responsibility for the operation and maintenance of all CITY constructed improvements, including but not limited to, performing all necessary repairs and the routine removal of trash and debris associated with CITY's use of LEVEE RIGHT OF WAY, (ii) assume sole responsibility for the structural -4- 221380 integrity of BRIDGE and CITY LEVEE, and (iii) assume all liability associated with the public use of BRIDGE including claims of third persons for injury or death or damage to property. Said obligation shall not include any inverse condemnation liability of DISTRICT by reason of the location of LEVEE or BRIDGE improvements thereto unless such liability is the result of CITY's operations or use of the property by the public pursuant to CITY's actual or tacit consent. 14. Ensure the safety of the public who may utilize BRIDGE by conducting periodic safety inspections and promptly making repairs that are necessary to safeguard the public and its use thereof. 15. Promptly repair any damage to LEVEE resulting from CITY's use of LEVEE RIGHT OF WAY under the license granted herein unless such damage is caused by flooding, or is the result of DISTRICT's customary operation, maintenance or improvements to its facilities located therein. 16. Waive any claim against DISTRICT for damages to BRIDGE or CITY LEVEE resulting from DISTRICT's operation and maintenance activities performed within LEVEE RIGHT OF WAY or its appurtenant works, including any natural calamity, act of God, or any cause or conditions beyond the control of DISTRICT, save and except damages resulting from DISTRICT's active negligence or willful misconduct. 17. Immediately remove, upon written request by DISTRICT's General Manager -Chief Engineer, any improvements and/or equipment not previously approved by DISTRICT, or cease use where CITY has installed any such improvements and/or equipment or CITY has used or allowed use of BRIDGE in a manner which, in the reasonable opinion of DISTRICT's General Manager -Chief Engineer, would be detrimental to the operation of LEVEE. If DISTRICT invokes this provision, it shall be required to communicate a detailed explanation of the basis for its determination that BRIDGE has become detrimental to the operation of 5 221380 LEVEE in writing to CITY and shall be required to meet and confer with CITY's designated representatives prior to finalizing such opinion. 18. If in the reasonable opinion of the General Manager -Chief Engineer, the public's use of LEVEE RIGHT OF WAY may cause or contribute to a public hazard, a public nuisance, degradation of water quality or any other matter of substantial concern to DISTRICT, DISTRICT reserves the right to require remediation and, if remediation is unsuccessful, to terminate this License Agreement. 19. Indemnify and hold harmless DISTRICT and the County of Riverside (including its directors, officers, Board of Supervisors, elected and appointed officials, agents, employees, representatives, independent contractors, and subcontractors) from any liability whatsoever, based or asserted upon any act or omission of CITY (including its officers, agents, employees, subcontractors, independent contractors, guests and invitees), arising from, related to or in any manner connected with CITY's use and responsibilities in connection therewith of LEVEE RIGHT OF WAY or the condition thereof, including but not limited to property damage, bodily injury, or death or any other element of any kind or nature whatsoever. CITY shall defend, at its sole expense, all costs and fees including but not limited to, attorneys' fees, cost of investigation, liens, defense and settlements or awards, DISTRICT and the County of Riverside (including its directors, officers, Board of Supervisors, elected and appointed officials, agents, employees, representatives, independent contractors, and subcontractors) in any claim or legal action based upon such alleged acts or omissions. CITY shall not permit to be placed against LEVEE RIGHT OF WAY or any part thereof, any design professionals', mechanics', material man's, contractors' or subcontractors' liens with the regard to CITY's actions upon LEVEE RIGHT OF WAY. CITY agrees to hold DISTRICT and County of Riverside harmless for any loss or expense, including 6 221380 reasonable attorneys' fee, arising from any such liens which might be filed against LEVEE RIGHT OF WAY. With respect to any action or claim subject to indemnification herein by CITY, CITY shall, at their sole cost, have the right to use counsel of their own choice and shall have the right to adjust, settle, or compromise any such action or claim without the prior consent of DISTRICT; provided, however, that any such adjustment, settlement or compromise in no manner whatsoever limits or circumscribes CITY's indemnification to DISTRICT and County of Riverside as set forth herein. CITY's obligation hereunder shall be satisfied when CITY has provided to DISTRICT and County of Riverside the appropriate form of dismissal relieving DISTRICT and County of Riverside from any liability for the action or claim involved. The specified insurance limits required in this License shall in no way limit or circumscribe CITY's obligations to indemnify and hold harmless the DISTRCT and County of Riverside herein. SECTION II DISTRICT shall: 1. Act as a responsible agency under CEQA, taking all necessary and appropriate action to comply with CEQA. 2. Review, comment and approve, as appropriate, IMPROVEMENT PLANS prior to the start of BRIDGE construction. 3. Review, comment and approve, as appropriate on all REGULATORY PERMITS, including any subsequent renewal or amendments thereto, prior to final execution or acceptance by CITY. 4. Upon DISTRICT approval of IMPROVEMENT PLANS and REGULATORY PERMITS, issue an encroachment permit to CITY for the construction, operation and maintenance of BRIDGE in accordance with DISTRICT approved 7 221380 IMPROVEMENT PLANS and subject to the provisions set forth in DISTRICT's Encroachment Permit. 5. Grant CITY a license to operate and maintain BRIDGE and CITY LEVEE within LEVEE RIGHT OF WAY, provided that CITY's activities do not, in any way whatsoever, unreasonably impair LEVEE's primary flood control purpose and function or otherwise interfere with DISTRICT's ability to operate, maintain, repair or reconstruct LEVEE (beyond CITY LEVEE) or any of its appurtenant works. Said license may be revoked by DISTRICT in the event that said uses unduly compromise LEVEE's primary flood control purpose and function or unreasonably interfere with DISTRICT's ability to operate and maintain LEVEE, as determined in DISTRICT's sole discretion. 6. Provide CITY with written notice of (i) any non -compatible use or condition that is not in conformity with the provisions of this License Agreement, or (ii) any condition which, in the sole opinion of DISTRICT's General Manager -Chief Engineer, could adversely affect the primary flood control function of LEVEE or DISTRICT's ability to operate and maintain LEVEE (beyond CITY LEVEE), and grant CITY ten (10) days from and after such notice to correct any such nonconforming use or condition. 7. Continue to maintain LEVEE's structural integrity (beyond CITY LEVEE), including but not limited to lines and grades, inlets, fencing and ramps to such an extent that LEVEE continues to function as a flood control facility at its design level. 8. Assume no responsibility, obligation, or liability whatsoever, for (i) the design, construction, inspection, operation, repair, and maintenance of BRIDGE and CITY LEVEE, or (ii) public's use of BRIDr'E as granted herein, unless done so expressly in writing approved by both parties as an amendment or addendum to this License Agreement. 8 221380 9. Indemnify and hold harmless CITY (including its City Council, elected and appointed officials, agents, employees, representatives, independent contractors, and subcontractors) from any liability whatsoever, based or asserted upon any act or omission of DISTRICT (including its officers, agents, employees, subcontractors, independent contractors, guests and invitees), arising from, related to or in any manner connected with DISTRICT's use and responsibilities in connection therewith of CITY LEVEE or the condition thereof, including but not limited to property damage, bodily injury, or death or any other element of any kind or nature whatsoever. DISTRICT shall defend, at its sole expense, all costs and fees including but not limited to, attorneys' fees, cost of investigation, liens, defense and settlements or awards, CITY (including its City Council, elected and appointed officials, agents, employees, representatives, independent contractors, and subcontractors) in any claim or legal action based upon such alleged acts or omissions. With respect to any action or claim subject to indemnification herein by DISTRICT, DISTRICT shall, at their sole cost, have the right to use counsel of their own choice and shall have the right to adjust, settle, or compromise any such action or claim without the prior consent of CITY; provided, however, that any such adjustment, settlement or compromise in no manner whatsoever limits or circumscribes DISTRICT's indemnification to CITY as set forth herein. DISTRICT's obligation hereunder shall be satisfied when DISTRICT has provided to CITY the appropriate form of dismissal relieving CITY from any liability for the action or claim involved. SECTION III It is further mutually agreed: 1. DISTRICT reserves the right to terminate this License Agreement without cause and any encroachment permit issued thereto upon sixty (60) days advance written notice 9 221380 to CITY. DISTRICT also reserves the right to terminate this License Agreement and any encroachment permit issued thereto, if based on any ground permitted under this License Agreement, DISTRICT determines that CITY's or public's use of LEVEE RIGHT OF WAY is not compatible with LEVEE's primary flood control purpose of function. 2. BRIDGE shall, at all times, remain under the sole ownership and exclusive responsibility of CITY. Nothing herein shall be construed as creating any obligation or responsibility on the part of DISTRICT to operate, maintain, inspect, or warranty BRIDGE. 3. Except as otherwise provided herein, all construction work associated with BRIDGE shall be inspected by CITY and shall not be deemed complete until approved and accepted as complete by CITY. 4. DISTRICT personnel may observe and inspect all work being done on BRIDGE. It is further mutually agreed by the parties hereto that any quality control comments shall be provided to CITY personnel who, as CITY construction contract administrator, shall be solely responsible for all official communications with its construction contractor(s). 5. Any waiver by DISTRICT or by CITY of any breach of any one or more of the terms of this License Agreement shall not be construed to be a waiver of any subsequent or other breach of the same or of any other term hereof. Failure on the part of DISTRICT or CITY to require exact, full and complete compliance with any terms of this License Agreement shall not be construed as in any manner changing the terms hereof, or estopping DISTRICT or CITY from enforcement hereof. 6. If any provision in this License Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. - 10- 221380 7. This License Agreement is to be construed in accordance with the laws of the State of California. 8. Any and all notices sent or required to be sent to the parties of this License Agreement will be mailed by first class mail, postage prepaid, to the following addresses: RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT 1995 Market Street Riverside, CA 92501 Attn: Operations and Maintenance Division CITY OF CATHEDRAL CITY 6800 Avenida Lalo Guerrero Cathedral City, CA 92235 Attn: John Corella 9. Any action at law or in equity brought by any of the parties hereto for the purpose of enforcing a right or rights provided for by this License 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. 10. This License Agreement is the result of negotiations between the parties hereto and the advice and assistance of their respective counsel. The fact that this License Agreement was prepared as a matter of convenience by DISTRICT shall have no import or significance. Any uncertainty or ambiguity in this License Agreement shall not be construed against DISTRICT because DISTRICT prepared this License Agreement in its final form. 11. This License Agreement is intended by the parties hereto as a final expression of their understanding with respect to the subject matter hereof and as a complete and exclusive statement of the terms and conditions thereof and supersedes any and all prior and contemporaneous agreements and understandings, oral or written, in connection therewith. This License Agreement may be changed or modified only upon the written consent of the parties hereto. - 11 - 221380 IN WITNESS WHEREOF, the parties hereto have executed this License Agreement on AUG 28 2018 (to be filled in by Clerk of the Board) RIVERSIDE COUNTY FLOOD CONTROL. RECOMMENDED FOR APPROVAL: AND WATER CONSERVATION DISTRICT By JA Ge al Manage -Chief Engineer E. UHL I Y APPROVED AS TO FORM: GREGORY P. PRIAMOS County Counsel By MARION'ASHLEY, Chairman Board of Supervisors, Riverside County Flood Control and Water Conservation District ATTEST: KECIA HARPER -THEM Clerk of the Board By By THOMAS OH eputy Deputy County Counsel (SEAL) Whitewater River — Right Bank Levee, Stage 2 Project No. 6-0-00250 (EP No. 3550) License Agreement w/City of Cathedral City AMR:blm 06/12/18 - 12 - APPROVED AS TO FORM: By �X v ERIC S. VAIL City Attorney CITY OF CATHEDRAL CITY By 221380 tt.,4_ CHARLES P. MCCLENDON City Manager ATTEST: By GARY` HOWELL City Clerk (SEAL) Whitewater River — Right Bank Levee, Stage 2 Project No. 6-0-00250 (EP No. 3550) License Agreement w/City of Cathedral City AMR:blm 06/12/18 - 13 - Exhibit A LICENSE AGREEMENT Whitewater River — Right Bank Levee, Stage 2 Project No. 6-0-00250 Encroachment Permit No. 3550 Page 1 of 1