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HomeMy WebLinkAboutContract 1490 c-1490 COACHELLA VALLEY ASSOCIATION of GOVERNMENTS SUB - REIMBURSEMENT AGREEMENT BY AND BETWEEN ORIGINAL CVAG AND CITY OF CATHEDRAL CITY For Interchange Project at 1 -10 and Palm Drive /Gene Autry Trail 3 THIS AGREEMENT is made and entered into this 27day of October 2010 , by and between the Coachella Valley Association of Governments ( "CVAG "), a California joint powers agency, the City of Cathedral City ( "Local Agency ") with reference to the following background facts and circumstances: 3 The "Coachella Valley Area Transportation Study," a valley -wide study prepared under the auspices of CVAG, has identified various transportation and highway projects throughout the Coachella Valley as projects of regional importance. These projects are listed in the Transportation Project Prioritization Study, as updated from time to time (the "TPPS "); and 'i CVAG, by agreement with its member agencies and with the Riverside County Transportation Commission, has been designated as the agency through which certain funds designated for the TPPS projects within the Coachella Valley ( "regional funds ") are to be conveyed and disbursed for the purpose of completing said projects; and Under CVAG's reimbursement policy for administering regional funds for eligible projects undertaken by its member jurisdictions, the cost of the eligible project is split into a "Local Share" and a "Regional Share." The "Regional Share," paid by CVAG from regional funds, is equal to seventy -five percent (75 %) of eligible costs, as defined by applicable CVAG policies and procedures in effect at the time CVAG is invoiced by the lead agency for reimbursement. All remaining costs constitute the "Local Share." i Although sometimes referred to as the "Local 25% Share," the Local Share includes not only the remaining twenty -five percent (25 %) of eligible costs as defined by CVAG policy, but also one hundred percent (100 %) of all ineligible project costs. As determined by a benefit assessment evaluation for each project, the jurisdiction ; within which a regional project is sited, as well as those jurisdictions in the near vicinity most- immediately benefited, are assessed a specified portion of the Local Share. Accordingly, as to each project, and after extensive input from its member jurisdictions, CVAG has adopted a schedule of the percentages of the Local Share to be charged to each of the responsible jurisdictions based on the ratio of trips generated by each of the respective jurisdictions. As each project proceeds, CVAG enters into a reimbursement agreement with the lead i agency for the regional project. Pursuant to that reimbursement agreement, CVAG is invoiced and makes reimbursement for certain project costs. Now, therefore, this Agreement is intended to provide for collection and payment of Local Agency's applicable percentage of the Local Share of the costs of the below- described regional project. '= 1 { COACHELLA VALLEY ASSOCIATION of GOVERNMENTS 1. Local Agency agrees to contribute its percentage assessment of the Local Share as shown below for the 1 -10 Interchange at Palm Drive and Gene Autry Trail Project ( "Project "): SCHEDULE OF LOCAL SHARE OBLIGATIONS: Jurisdictions % Assessment of Local Share Current Estimated Cost Cathedral City 10.88% $ 383,656 p= 2. CVAG has or will enter into an agreement ( "Reimbursement Agreement ") with r the lead agency for the Project concerning the administration of regional funding for the cost of the Project. 3. The terms of the Reimbursement Agreement and the contract(s) by and between the lead agency and the contractor(s) for the Project shall define the scope of the Project. F 4. Upon final payment from CVAG to the lead agency for reimbursement of the ` Regional Share of the Project costs, CVAG shall obtain from the lead agency a final report i containing a record of all costs incurred with respect to the Project and the source of all payments applied toward such costs. 5. Upon receipt of the Final Report, CVAG shall prepare a schedule of the local share obligations for the Project and invoice each responsible jurisdiction for the unpaid balance of its percentage share. Within sixty (60) days of the date of the receipt of said invoice, Local Agency shall transmit to CVAG the entire unpaid balance of the Local Share assessed to Local Agency. 6. Except as to any portion of the Local Agency's percentage assessment that CVAG previously advanced to the lead agency or other third party, all monies paid to CVAG by the Local Agency as its percentage assessment for the Project shall be held by CVAG for the benefit of, and subsequent transfer to, the lead agency. However, nothing herein shall prevent the lead agency and Local Agency from entering into an agreement prior to the completion of the Project whereby Local Agency agrees to pay all or some of its Local Share directly to the lead agency. Any such payments shall be shown in the Final Report as credits to be applied as offsets against Local Agency's assessed share of the Project costs. 7. In the event Local Agency disputes the invoiced assessment, the following i procedures shall apply: 7.1. Local Agency may request supporting documentation consistent with the lead agency's obligation to CVAG as set out in the Reimbursement Agreement. Upon documentation that the subject expense has been paid as a cost of the Project, Local Agency shall pay the corresponding invoice within five business days after receipt of said documentation. 7.2 Subject only to appeal to CVAG's Executive Committee, CVAG's Executive Director shall be the final arbiter of any dispute as to sums owed by the Local Agency for its percentage assessment of the Local Share for the Project. As to any portion of the Local Agency's percentage assessment that CVAG previously advanced for the Project or for which i 2 i 4 3 3 COACHELLA VALLEY ASSOCIATION of GOVERNMENTS CVAG is otherwise obligated to reimburse to the lead agency or any other third party, CVAG 's approval of said Project costs shall be final and not subject to challenge by Local Agency. i 7.3 Neither the pendency of dispute nor its consideration by CVAG will excuse Local Agency from full and time) g y y performance in accordance with the terms of this Agreement. 8. CVAG shall permit Local Agency, at any reasonable time, upon reasonable notice, to inspect any records maintained by the lead agency for the Project and available to CVAG pursuant to the terms of the Reimbursement Agreement, as well as any records obtained and maintained by CVAG in the regular course of its administration of the regional funds for the Project. 9. The occurrence of any one or more of the following events shall, at CVAG's option, constitute an event of default and Local Agency shall provide CVAG with immediate notice thereof: } 9.1 Any warranty, representation, statement, report or certificate made or delivered to CVAG by Local Agency or any of Local Agency's officers, employees or agents now or hereafter which is incorrect, false, untrue or misleading in any material respect; i 9.2 Local Agency shall fail to pay, perform or comply with, or otherwise shall breach, any obligation, warranty, term or condition in this agreement or any amendment to this agreement, or any agreement delivered in connection with the Project; or F 9.3 There shall occur any of the following: dissolution, termination of existence or insolvency of Local Agency; the commencement of any proceeding under any bankruptcy or insolvency law by or against Local Agency; entry of a court order which enjoins, z restrains or in any way prevents Local Agency from paying sums owed to creditors. I 10. No waiver of any event of default or breach by one party hereunder shall be i implied from any omission by the other party to take action on account of such default, and no express waiver shall affect any default other than the default specified in the waiver and the waiver shall be operative only for the time and to the extent therein stated. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval by one party to or of any act by the other party shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent or similar act. i 11. This agreement is made and entered into for the sole protection and benefit of CVAG and Local Agency and no third person shall have any right of action under this agreement. x 12. This Agreement is for funding purposes only and nothing herein shall be construed so as to constitute CVAG as a party to the construction or in ownership or a partner or joint venturer with any other entity with respect to the Project. Local Agency shall assume the defense of, indemnify and hold harmless CVAG, its member agencies, and their respective officers, directors, agents, employees, servants, attorneys, and volunteers, and each and every one of them, from and against all actions, damages, claims, losses and expenses of every type and description to which they may be subjected or put by reason of or resulting from the actions or inactions of Local Agency related to the Project or taken in the performance of this agreement 3 COACHELLA VALLEY ASSOCIATION of GOVERNMENTS or any other agreement entered into by Local Agency with reference to the Project. CVAG shall assume the defense of, indemnify and hold harmless Local Agency, its officers, directors, agents, employees, servants, attorneys, and volunteers, and each of them, from and against all actions, damages, claims, losses, and expenses of every type and description to which they may be subjected or put by reason of or resulting from the actions of CVAG taken in the performance of this agreement. 13. This agreement may not be assigned without the express written consent of CVAG first being obtained. i 14. Local Agency, its successors in interest and assigns shall be bound by all the 4 provisions contained in this Agreement. 'R 15. No officer or employee of a party to this agreement shall be personally liable to any other party to this agreement, or any successor in interest, in the event of any default or breach or for any amount which may become due to a party or to its successor. 16. No officer or employee of CVAG shall have any personal interest, direct or indirect, in this agreement; nor shall any such officer or employee participate in any decision relating to this agreement which affects his or her personal interest or the interest of any s corporation, partnership or association in which she or he is, directly or indirectly, interested. 17. CVAG warrants that the funds received from CVAG pursuant to this agreement shall only be used in a manner consistent with CVAG's reimbursement policy for regional projects and all applicable regulations and laws. Any provision required to be included in this type of agreement by federal or state law shall be deemed to be incorporated herein. 18. All notices or other communications required or permitted hereunder shall be in writing and shall be either personally delivered (which shall include delivery by means of i professional overnight courier service which confirms receipt in writing, such as Federal Express or UPS); sent by telecopier or facsimile machine capable of confirming transmission and receipt; or sent by certified or registered mail, return receipt requested, postage prepaid; to the following fi parties at the following addresses or numbers: f I If to City of Cathedral City: Donald Bradley, City Manager City of Cathedral City 68 -700 Avenida Lalo Guerrero Cathedral City, CA 92234 Telephone: (760) 770 -0372 Fax.: (760) 770 -0340 t If to CVAG: CVAG 73 -710 Fred Waring Drive Palm Desert, CA 92260 Attn: Deputy Executive Director Telephone: (760) 346 -1127 Fax.: (760) 340 -5949 4 y i 3 COACHELLA VALLEY ASSOCIATION of GOVERNMENTS F I Notices sent in accordance with this paragraph shall be deemed delivered upon the next business day following the: (i) date of delivery as indicated on the written confirmation of delivery (if sent by overnight courier service); (ii) the date of actual receipt (if personally delivered by other means); (iii) date of transmission (if sent by telecopier or facsimile machine); or (iv) the date of delivery as indicated on the return receipt if sent by certified or registered mail, return receipt requested. Notice of change of address shall be given by written notice in the manner detailed in this paragraph. 19. This agreement contains the entire agreement between the parties, and is intended by the parties to completely state the agreement in full. Any agreement or representation respecting the matter dealt with herein or the duties of any party in relation i thereto, not expressly set forth in this agreement, is null and void. t 20. If any term, provision, condition, or covenant of this agreement, or the application thereof to any party or circumstance, shall to any extent be held invalid or unenforceable, the remainder of the 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 i shall be valid and enforceable to the fullest extent permitted by law. 21. In the event a party hereto brings an action or proceeding for a declaration of the rights of the parties, for injunctive relief, for an alleged breach or default, or any other action arising out of this agreement, or the transactions contemplated hereby, the prevailing party in any such action shall be entitled to an award of reasonable attorneys' fees and costs incurred in such action or proceeding, in addition to any other damages or relief awarded, regardless of whether such action proceeds to final judgment. 22. Time is of the essence in this agreement, and each and every provision hereof in which time is an element. t 23. This agreement and all documents provided for herein shall be governed by and construed in accordance with the laws of the State of California. Any litigation arising from this Agreement shall be adjudicated in the courts of Riverside County, Desert Judicial District, State s of California. 24. Local Agency warrants that the execution, delivery and performance of this agreement and any and all related documents are duly authorized and do not require the further consent or approval of any body, board or commission or other authority. 25. 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 t all of which constitute one and the same instrument. 3 h : 5 k 'k I i i I i IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their duly authorized representatives on this date: I I ATTEST CITY OF CA ED CITY By: By. athlee DeRosa ayor ATTEST: CVAG By: B I Tom rk St phen Pougrfet Executive Director Chair I 6