HomeMy WebLinkAboutContract 2023 072013
LICENSE AGREEMENT FOR TEMPORARY CONSTRUCTION ACCESS AND STAGING
BY AND BETWEEN
CITY OF CATHEDRAL CITY
AND
PALM SPRINGS UNIFIED SCHOOL DISTRICT
This LICENSE AGREEMENT FOR TEMPORARY CONSTRUCTION ACCESS AND
CONSTRUCTION STAGING (this "License Agreement" or this "Agreement") is entered into
this 28 day of June 2023, by and between the City of Cathedral City("City"), a California municipal
corporation, and the Palm Springs Unified School District ("District" or "PSUSD"), a California
unified school district (collectively "Parties").
RECITALS
WHEREAS, the City is the owner of property fronting on the north side of Vega Road east of
Landau Boulevard in the City of Cathedral City, County of Riverside, State of California (APNs
678030065 through 678030069, inclusive) (the "Property"); and
WHEREAS, PSUSD is proceeding with its Landau Elementary School campus-wide
modernization construction project (the "Project") located on the north property line of the
Property; and
WHEREAS, the City desires to provide PSUSD with access to and temporary use of the Property,
by way of a license agreement for purposes of staging of construction equipment, delivery of
construction materials, construction-related parking, and vehicular turnaround subject to the terms
and limitations set forth herein.
NOW, THEREFORE, in consideration of the mutual execution and delivery of this Agreement,
plus other valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
and in consideration of the covenants PSUSD expresses herein, agree as follows:
L GRANT OF LICENSE
The City hereby grants to PSUSD, its employees, contractors, and subcontractors (collectively
"PSUSD and Agents") responsible for construction or restoration or any related activity as
described herein the license, privilege and permission ("the License") to access and use during
the term set forth below, that portion of the Property consisting of approximately 85,260 square
feet as depicted in on the Map attached hereto as"Exhibit A"and incorporated herein by reference
(the"Site"). The license shall be for the limited purpose of accessing the construction site, for use
as a construction staging area (including installation of temporary trailers, sinks and toilets),
delivery of construction materials, storage and laydown area, construction-related parking, and
vehicular turnaround, subject to the terms and limitations set forth below.
This License Agreement shall cease and be terminated at such time as the Restorations have
been accepted by the City in writing, or sooner if terminated pursuant to Article IX of this License
Agreement.
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IL TERM
The term of this Agreement shall be for a maximum of forty-eight (48) months, beginning as of
the date first set forth above, and concluding when the Restorations, as defined hereinafter, have
been accepted by the City (the "Term").
LICENSE FEE
A. PSUSD shall pay to City an annual license fee ("Annual License Fee") of forty-six
thousand forty dollars ($46,040.00) (calculated at a monthly rate of$0.045 per square
foot) payable in advance on the commencement date and thereafter on the anniversary date of the
commencement date in each year during the term.
B. Per the process set forth in Article IX, section D, upon termination of the Agreement, the
City shall refund to the District the unused, prorated portion of the Annual License Fee.
Jy+ PESIGNATION OF PARTIES' REPRESENTATIVES
The City designates the City Engineer as its authorized representative to receive communication
on the City's behalf with respect to this Agreement. PSUSD designates its Assistant
Superintendent of Business Services as its duly authorized representative to act on PSUSD's
behalf with respect to this Agreement. The Parties may designate a different representative so
long as the party notifies the other party in writing.
NO REPRESENTATIONS BY CITY
PSUSD represents that the City has made no representations with respect to the Property or its
condition, and that PSUSD is not relying on any representations of the City or the City's agents
with respect to the use or condition of the property. This License grants PSUSD the privilege and
permission to use the property depicted in Exhibit A in its present condition "as is" without any
warranties and subject to the conditions set forth herein.
XL. OBLIGATIONS OF PSUSD
A. PSUSD agrees to design and construct, at is sole expense, the site work shown in Exhibit
"B", which shall be constructed according to plans and specifications approved by the City prior
to commencing construction activity. Such approval by the City shall not be unreasonably
withheld. The restoration of the Site ("Restorations") shall be completed per the requirements set
forth in Article VII, section B and the Restorations plan prepared by the Parties (see Article IX,
section D).
B. PSUSD shall, at its sole cost and expense, install and maintain in good condition a six(6)-
foot high PM10 chain link fence with windscreen around the perimeter of the construction staging
area. The fence shall be installed pursuant to a PM10 plan, approved in advance by the City. Said
chain link fence shall contain a shield or barrier that will protect the area outside the Construction
Staging Area from debris. The fence shall be secured with one (1) Knox padlocks at the access
to the Construction Staging Area from Vega Road to ensure emergency responders' access.
C. PSUSD agrees to maintain the construction staging area in good condition at all times
keeping it free of trash and other debris and shall maintain the construction staging area fence line
in a neat and orderly condition.
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D. PSUSD shall obtain a PM10 Permit from the City covering the entire Site and shall
implement dust control measurements including soil stabilizer on the construction staging area as
well as the unused vacant portion of the City property. A PM10 signage shall be installed and
maintained during the entire construction phase of the project.
E. PSUSD Agents shall access the construction staging area from Vega Road only. There
shall be no access from Modalo Road.
F. PSUSD understands and agrees that Vega Road shall remain open and fully accessible
to the City and the public at all times during construction.
G. PSUSD Agents shall keep Landau Boulevard and Vega Road free from PSUSD
construction debris. Sediment, rock, mud and other debris from the PSUSD Project shall be
cleaned immediately. As part of its Restorations, PSUSD agrees to repair said streets, curbs,
sidewalks, and other public infrastructure to a condition existing prior to the PSUSD Project
mobilization.
H. PSUSD agrees to timely comply with any request of City to perform maintenance and
repairs to streets, curbs, sidewalks and other city infrastructure damaged by PSUSD or PSUSD's
agents in the course of the Project construction or the required Restorations while the construction
project is in progress. This maintenance or repair work shall be performed to the City's reasonable
satisfaction, but the parties agree that this is interim maintenance and need not be completed to
the same standards as the Restorations.
PSUSD agrees to coordinate all construction and construction staging activity with the
City, so as to ensure that normal City operations continue uninterrupted.
J. PSUSD agrees to comply with all City ordinances and other rules and regulations
regarding permits and approvals related to construction of the Site and Restorations, as well as
those of any other governmental entity having jurisdiction.
K. PSUSD shall have the right to deposit tools, implements, and other materials in the Site
and utilize construction, automotive and other equipment thereon when necessary for the purpose
of constructing the Project.
L. PSUSD shall ensure that the general contractor for the Project("Contractor") procures and
maintains in full force and effect for the duration of this Agreement, liability and property damage
insurance with a minimum of$1,000,000 (one million dollars) bodily injury, and $1,000,000 (one
million dollars) property damage for each occurrence, and $2,000,000 (two million dollars)
comprehensive general liability insurance. PSUSD shall ensure that Contractor provides to City
a current copy of its policy or policies of insurance, or a certificate of insurance evidencing same, to
the City prior to exercising their rights and duties under this Agreement. The City shall be named
as an additional insured on all policies required by this License Agreement.
PSUSD shall require Contractor to procure and maintain statutory limits of workers' compensation
insurance coverage, motor vehicle liability insurance, and a minimum of$1,000,000 (one million
dollars) employer's liability insurance for the duration of this Agreement.
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M. PSUSD agrees that neither PSUSD nor any of its agents, contractors, subcontractors,
engineers, or employees shall perform any drilling, digging or perforating the ground within the
Site without first obtaining City's prior consent. The City understands that District will be installing
fence posts as well as poles for temporary power and lighting, and that these improvements are
acceptable to City provided the holes created for these structures do not exceed eighteen (18)
inches in diameter and do not exceed a depth of five feet.
N. PSUSD and agents agree to comply with any and all laws, ordinances or regulations,
whether such laws, regulations and/or ordinances now exist or shall be enacted or issued during
the term or any extension of this License Agreement.
PSUSD shall save and hold harmless, protect and indemnify City, its elected officials, employees
and agents, from and against any and all liabilities, obligations, damages, penalties, claims of any
kinds, causes of action, costs, charges and expenses, including attorney's fees and expenses of
agents, which may be imposed upon or incurred or served against City, its elected officials,
employees or agents by reason of any occurrence or accident arising out of PSUSD and Agents'
use of the Site. In the case of any asserted claim or with respect to any action or proceeding
brought against the City by reason of any such occurrence, PSUSD, upon written notice from the
City, shall at PSUSD's own cost and expense, promptly resist and defend such claim or action.
PSUSD agrees, upon written request, to provide City with status reports and reasonable
information about the pendency, disposition and/or handling of any such claim, action or
proceeding.
O. PSUSD shall vacate the Site and complete the Restorations in accordance with Article IX,
section D hereof. The Site will be timely vacated and Restoration timely perfected so as to
terminate the License granted herein as soon as practicable. All expenses related to surveying,
preservation and relocation of existing monuments, if any, shall be borne by PSUSD. PSUSD
agrees after completion of the construction, PSUSD will, at its expense, restore the ground, to the
City's satisfaction and in accordance with Article VI I, to the condition it was in prior to Construction
Staging within a reasonable time.
Y11, RESTORATIONS
A. Per the process set forth in Article IX, section D, PSUSD shall perform the Restorations in
accord with the restorations plan prepared by the Parties. PSUSD understands that City reserves
the right to include in the Restorations Plan:
• the removal of fencing, and temporary lighting poles; and
• the regrading and/or repair the entire Site to a condition as good as what existed prior
PSUSD's mobilization of the Project; and
• covering the entire Site with soil stabilizer.
B. As part of the Restorations Plan, PSUSD shall restore any damage PSUSD and Agents
cause to the streets, curbs, sidewalks, and other public infrastructure in or adjacent to Landau
Boulevard and Vega Road to a condition as good as that which existed prior to PSUSD's
mobilization of the Project. Prior to the project mobilization, the City shall perform a street rating
with video and / or photographs to record the condition of the streets. As part of its Restorations,
PSUSD agrees to make all required repairs in accordance with the Restorations Plan and to the
City's satisfaction.
C. The City retains the right to inspect construction of the Site and Restorations, and to
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exercise its rights or duties in order to protect persons, property or the public interest in the Site.
IL PROJECT COSTS AND RESPONSIBILITIES
A. All costs of the construction staging area and Restorations shall be the sole responsibility
of PSUSD.
B. Any increase in the actual costs of the Site construction and Restorations, including cost
increases, change orders and overruns, shall be borne by PSUSD. Costs include, but are not
limited to, architectural, engineering, consulting, design, labor, site preparation, site restoration,
materials, supplies, legal fees, utilities, permits, inspections, insurance, and any other costs
incurred in the design and construction of the Site and Restorations. PSUSD's costs shall not
include the City's expenses in administering this Agreement.
HAZARDOUS MATERIALS
A. Definitions. The following terms shall have the meanings set forth in this paragraph:
"Hazardous Substance" shall mean any product, substance, chemical, material or waste whose
presence, nature, quantity and/or intensity of existence, use, manufacture, disposal,
transportation, spill, release or effect, either by itself or in combination with other materials
expected to be on the Site, is either: (i) potentially injurious to the public health, safety or welfare,
or the environment, or the Site; (ii) regulated or monitored by any governmental authority; or (iii) a
basis for potential liability of City to any governmental agency or third party under any statutory or
common law theory. Hazardous Substance shall include, but not be limited to aviation fuel,
hydrocarbons, petroleum products, gasoline, crude oil or any products or by-products thereof.
1. "Reportable Use" shall mean the installation or use of any above or below ground
(i) storage tank; (ii) the generation, possession, storage, use, transportation, or disposal of a
Hazardous Substance that requires a permit from, or with respect to which a report, notice,
registration or business plan is required to be filed with, any governmental authority; and (iii) the
presence in, on or about the Site of a Hazardous Substance with respect to which any law or
regulation requires that a notice be given to persons entering or occupying the Site or neighboring
properties.
B. PSUSD shall not engage in any activity in or about the Site which constitutes a Reportable
Use of Hazardous Substances without the express prior written consent of City and compliance
in a timely manner (at PSUSD's sole cost and expense) with all applicable laws and regulations.
PSUSD shall not cause or permit any Hazardous Substance to be spilled or released in, on, under
or about the Site (including, without limitation, through the storm sewer system).
. TERMINATION
A. If any party fails to properly fulfill its obligations under this Agreement in a timely manner,
or if any party violates any of the provisions of this Agreement, the non-breaching party shall notify
the other party in writing of the specific violations of this Agreement. The breaching party shall
have fourteen (14) days from receipt of this notice in which to cure any such violation. If the
violation cannot be reasonably cured within said 14-day period, and the breaching party has
diligently pursued such remedy as shall be reasonably necessary to cure violation, then the
parties may agree in writing to an extension of the period in which the violation must be cured.
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B. If, however, the breaching party has not cured any such violation as specified in the written
notice or any extension within the time provided, then the non-breaching party, at its sole option,
shall have the right to terminate this Agreement. This termination shall be made by sending written
"Notice of Termination"to the breaching party. This notice of Termination shall be effective for all
purposes when deposited in the US Mail, postage prepaid and mailed Certified US Mail, Return
Receipt Requested.
C. If PSUSD defaults under this Agreement, upon depositing the Notice of Termination with
the US Mail as specified above, the City may assume control and possession of the Site and
PSUSD and Agents shall vacate it immediately and commence the Restorations.
D. The District reserves the right to terminate this Agreement at any time by providing the
City with written notice that it is vacating the Site ("Vacation Notice"). The Parties shall meet and
confer within 30 days of the District providing the Vacation Notice and prepare a plan for the
Restorations. The plan shall be approved by both Parties, consent to which shall not be
unreasonably withheld. Upon completion of the Restorations, the Agreement shall terminate and
the City shall refund to the District the unused, prorated portion of the Annual License Fee within
thirty (30) days of the termination of the Agreement.
E. The City reserves the right to immediately terminate this Agreement in the event of an
emergency or when necessary, in the City's sole discretion, to protect the public health, welfare
or safety.
F. The only permitted basis for the termination of this Agreement will be those forth in
subsections A, D and E of this Article.
X. MISCELLANEOUS PROVISIONS
This Agreement constitutes the entire agreement between the parties relating to the subject
matter of this Agreement. Any previous agreement, assertion, statement, understanding, or other
commitment before the date of this Agreement, whether written or oral, shall have no force or
effect upon the terms and conditions of this Agreement, except as otherwise provided for and
acknowledged. Notwithstanding the foregoing sentence, nothing in this Agreement shall be
construed or interpreted in such a way as to vacate or amend any certain preexisting underlying
agreements by and between the City and PSUSD, all of which certain preexisting underlying
agreements are and shall remain fully performable by the parties, subject to their terms and
conditions. No agreement, assertion, statement, understanding, or other commitment during the
term of this Agreement, or after the term of this Agreement, shall have any legal force or effect
upon the terms and conditions of this Agreement unless properly executed in writing by the
parties.
A. This Agreement is made, and shall be construed and interpreted under by the laws of the
State of California, and venue for any suit concerning this Agreement shall be brought in the
Superior Court for the County of Riverside.
B. Regardless of the actual drafter of this Agreement, this Agreement shall, in the event of
any dispute over its meaning or application, be interpreted fairly and reasonably, and neither more
strongly for nor against the parties to this Agreement.
C. All official communications and notices required to be made under this Agreement shall
be deemed made if sent postage prepaid to the parties at the addresses listed below, unless
otherwise specified in this Agreement:
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If to the City: City of Cathedral City
Attn: City Engineer
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
If to PSUSD: Palm Springs Unified School District
Attn: Executive Director, Facilities, Planning & Development
150 District Center Drive
Palm Springs, CA 92264
D. The City and PSUSD respectively, bind themselves, their successors in interest, assigns
and legal representatives to this Agreement. PSUSD shall not assign or transfer any interest in
this Agreement without the prior written consent of the City.
E. Time is of the essence in this Agreement.
F. If the final judgment of a court of competent jurisdiction invalidates any part of this
Agreement, then the remaining parts of this Agreement shall remain in full effect.
G. If at any time the City, its successors or assigns, fails to enforce this Agreement, whether
or not any violations of it are known, such failure shall not constitute a waiver or estoppel of the
right to enforce it.
H. This License may be executed in multiple counterparts, each of which is deemed to be an
original, and all such counterparts constitute one and the same instrument.
[Signatures appear on following page]
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this License Agreement the day and
year first above written.
CITY OF CATHEDRAL CITY, PALM SPRINGS UN D S HOOL DISTRICT,
a muni ipal corporation a California sch district •
By
Charlie McClendon, City Manager Na
Title:
8
EXHIBIT A
PROPERTY AND SITE DESCRIPTION
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EXHIBIT B
CONSTRUCTION STAGING AREA
PSUSD LOGISTIC PLAN
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