Loading...
HomeMy WebLinkAboutA6195 - AGUA CALIENTE BAND OF CAHUILLA INDIANRELEASE OF CLAIMS The undersigned subcontractor, pursuant to the terms of the Subcontractor Services Agreement dated February 13, 2012 (`AGREEMENT'), by and between the Aqua Caliente Band of Cahuilla Indians, a federally -recognized Indian Tribal Government (`TRIBAL GOVERNMENT'), with offices at 5401 Dinah Shore Drive, Palm Springs, California, 92264 and the City of Palm Springs (`SUBCONTRACTOR"), a municipal corporation, with its offices at 3200 East Tahquitz Canyon Way, Palm Springs, California 92262, to construct the Tahquitz Canyon Way Median Landscaping Improvements. Project (City Project No. 08-20), hereby releases the TRIBAL GOVERNMENT from any and all claims arising under or by virtue of said AGREEMENT or any modification or change thereof except as follows: (Here list any claims against the TRIBAL GOVERNMENT and the amounts thereof. If none, so state.) In witness whereof, the SUBCONTRACTOR has executed this release this V� day of MaAe_4 2015. CITY OF PALM SPRINGS APPROVED BY: Engineer ATTESTED BY: TO FORM: ames Thompson, City Clerk Dougla Holland, City Attorney c - CONTRACT ABSTRACT 1 Originals: Subcontractor Services Agreement; 2 Originals: Memorandum of Understandi Contract d" a' Ad�� ya�e y Company Name: Agua Caliente Band of Cahuilla Indians Company Contact: F.T. Kieley III Summary of Services: CP#08-20; Tahquitz Canyon Way Median Landscape Improvements Contract Price: $2,000,000 Funding Source: IRR funds TD Contract Term: December 31, 2015 Contract Administration Lead Department: Contract Administrator: Public Works & Engineering David Barakian / Marcus Fuller Contract Approvals CounciU January 18, 2012; Item Number:2M Agency Approval Date: n/a Minute Order/Resolution Number: MOU; Sub. Svcs. Agr. Agreement Number: 6194&6195 Contract Compliance Exhibits: attached Signatures: attached Insurance: The City is to provide Insurance to ACBCI per Exhibit B Bonds: n/a Contract prepared by: ACBCI Submitted on: 01/19/2012 By: Tabitha Richards SUBCONTRACTOR SERVICES AGREEMENT This AGREEMENT is made and entered into this Ab- clay of 2012, by and between Agua Caliente Band of Cahuilla Indians, a federal ly-recog ed sovereign Indian Tribal Government ("TRIBAL GOVERNMENT"), with offices at 5401 Dinah Shore Drive, Palm Springs, California, 92264, and the City of Palm Springs ("SUBCONTRACTOR"), a municipal corporation, with offices at 3200 East Tahquitz Canyon Way, Palm Springs, CA 92262. 1. Scope of Work 1.1 SUBCONTRACTOR is to furnish services as outlined in Exhibit "A," attached hereto and incorporated herein by reference, to the TRIBAL GOVERNMENT. 1.2 SUBCONTRACTOR shall perform all services as an independent contractor and shall be responsible for the manner, means, methods, materials, licenses, permits, fees, employer's and other taxes, royalties, health and safety precautions, workers' compensation insurance, and other conditions and qualifications necessary to perform the services and achieve the results required to professionally and competently furnish and complete the services outlined in Exhibit "A" hereto. SUBCONTRACTOR shall not be deemed an agent for, or engaged in a joint venture with, the TRIBAL GOVERNMENT, and shall have no authority to bind the TRIBAL GOVERNMENT. 2. Performance Standards and Other Conditions 2.1 All work performed by SUBCONTRACTOR shall be performed in accordance with generally recognized industry practices and professional standards for similar professional services. SUBCONTRACTOR agrees that it will, at SUBCONTRACTOR'S expense, retain the services of all personnel reasonably necessary to timely and competently perform the services required by this AGREEMENT. All work performed hereunder, shall be performed by fully qualified personnel and such personnel shall be authorized and properly licensed under applicable Tribal, federal and state laws to perform such work. 2.2 In addition to personnel employed directly by SUBCONTRACTOR, SUBCONTRACTOR shall have the right to engage such subcontractors as it may deem appropriate, qualified and reasonably necessary to the performance of SUBCONTRACTOR'S obligations hereunder with the prior written approval of the TRIBAL GOVERNMENT, which shall not be unreasonably withheld. 2.3 SUBCONTRACTOR shall schedule and perform its work with diligence and in character, sequence and timing so that SUBCONTRACTOR'S work will be coordinated with that of the TRIBAL GOVERNMENT. ORIGINAL BID ANQIOn AQ�RF�ENT C 2.4 SUBCONTRACTOR shall not be liable for delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including without limitation, fire or other casualty, Acts of God, strikes or labor disputes, war or other violence, acts of third parties, or any applicable law, order, or requirement of any governmental agency or authority. 3. Compensation 3.1 SUBCONTRACTOR shall be fully compensated for SUBCONTRACTOR'S and its subcontractors' services provided under this AGREEMENT by the payment of the sums set forth in Exhibit "A" hereto. 3.2 The compensation paid to SUBCONTRACTOR shall be considered payment in full for the services provided to TRIBAL GOVERNMENT under this AGREEMENT. 4. Payments 4.1 Between the 1st and the W' of each month, SUBCONTRACTOR shall submit invoices to the TRIBAL GOVERNMENT for payment of services provided during the previous month. 4.2 Invoices for services are subject to approval of and full audit by the TRIBAL GOVERNMENT. 4.3 The TRIBAL GOVERNMENT will pay the SUBCONTRACTOR's proper invoices within 15 days of receipt. 5. Additional Work 5.1 From time to time, the TRIBAL GOVERNMENT may change, alter or modify the scope of work to be performed by SUBCONTRACTOR under this AGREEMENT, provided that SUBCONTRACTOR has been compensated for all work performed prior to the alteration or modification of the scope of work. 6. Term and Termination 6.1 This AGREEMENT shall remain in effect until such time as the services outlined in Exhibit "A" are completed, or until December 31, 2015, whichever is sooner, unless sooner terminated in accordance with the terms hereof. 6.2 Either the TRIBAL GOVERNMENT or SUBCONTRACTOR may terminate this AGREEMENT at any time upon breach of this AGREEMENT by the non - terminating party, provided that the terminating party provides the other party at least thirty (30) days written notice of such termination. 2 6.3 In the event of such termination, the TRIBAL GOVERNMENT's sole liability will be to pay SUBCONTRACTOR for work performed up to the date of termination in accordance with the terms of this AGREEMENT. 6.4 In the event of such termination, the SUBCONTRACTOR shall immediately deliver all completed work and all work -in -progress to the TRIBAL GOVERNMENT. No closeout payments shall be payable to SUBCONTRACTOR until all such deliveries are completed. 6.5 In the event of termination, there shall be no liability on the part of either party hereto for lost revenues or lost profit for unperformed services. 7. Special Provisions 7.1 SUBCONTRACTOR shall be responsible for complying with all applicable Indian Reservation Roads (IRR) and Federal Acquisition Regulations including, but not limited to, Davis Bacon Act provisions. 8. Records 8.1 Records of SUBCONTRACTOR's direct and indirect labor costs, payroll costs, and each reimbursable expense pertaining to work performed hereunder will be kept by SUBCONTRACTOR in a generally recognized accounting format, copies of which shall be forwarded as supporting documentation for all invoices submitted to the TRIBAL GOVERNMENT. 8.2 SUBCONTRACTOR shall maintain all records pertaining to the Scope of Work in legible and useable form for a period of not less than three (3) years. Original records shall be retained by SUBCONTRACTOR or forwarded to the TRIBAL GOVERNMENT in accordance with any applicable Tribal, state and federal guidelines. 8.3 All designs, as.�built drawings, specifications, notes, and other work developed in the performance of this AGREEMENT shall be and remain the joint property of the TRIBAL GOVERNMENT and SUBCONTRACTOR and may be used on any other work without additional compensation under this AGREEMENT. The TRIBAL GOVERNMENT and SUBCONTRACTOR reserve a royalty -free, nonexclusive, and irrevocable license to produce, publish, or otherwise use, for general purposes, the copyright or any other intellectual property right in any work developed under this AGREEMENT, or pursuant to a subcontract under this AGREEMENT, and any rights of copyright or any other intellectual property right which the SUBCONTRACTOR, or its subcontractors, purchases to facilitate its work under this AGREEMENT. 8.4 SUBCONTRACTOR shall provide a report to the TRIBAL GOVERNMENT on a Quarterly Basis, not later than five (5) days after the end of each calendar quarter, which contains the following information: 8.4.1 the total amount of funds received from the TRIBAL GOVERNMENT; and 8.4.2 a detailed list of all activities for which IRR funds were expended, including: the name of the activity, a description of the activity, an evaluation of the completion status of the services outlined in Exhibit "A." 9. Insurance 9.1 After the execution of this AGREEMENT, SUBCONTRACTOR, and any subcontractor of the SUBCONTRACTOR, shall furnish the TRIBAL GOVERNMENT with copies of certificates of insurance, and shall maintain such insurance in the amounts and of the types specified in Exhibit "B" hereto, which is incorporated by this reference, for the term of the Agreement. 10. Indemnification 10.1 SUBCONTRACTOR hereby agrees to fully defend, indemnify and hold the TRIBAL GOVERNMENT harmless from and against any and all claims, suits, actions, liens, damages, loss, liability or costs of every nature or description (including reasonable attorney fees) arising from, or in any way attributable to or related to the negligence or willful misconduct of SUBCONTRACTOR hereunder, including SUBCONTRACTOR's officers, employees, agents, principals, shareholders, directors, and subcontractors. 10.2 TRIBAL GOVERNMENT hereby agrees to fully defend, indemnify and hold the SUBCONTRACTOR harmless from and against any and all claims, suits, actions, liens, damages, loss, liability or costs of every nature or description (including reasonable attorney fees) arising from, or in any way attributable to or related to the negligence or willful misconduct of the TRIBAL GOVERNMENT hereunder, including the TRIBAL GOVERNMENT'S officers, employees, agents, principals, shareholders, and directors. 11. Successors and Assigns 11.1 SUBCONTRACTOR hereby binds itself, its successors, executors, administrators, assigns and legal representatives to this AGREEMENT with respect to all covenants and obligations of SUBCONTRACTOR under this AGREEMENT. 11.2 Except as set forth in this AGREEMENT, SUBCONTRACTOR shall not assign, sublet, or transfer any rights or obligations under, or interest in, this AGREEMENT without the prior written consent of the TRIBAL GOVERNMENT. rd 12. Entirety 12.1 This AGREEMENT and attachments hereto constitute the entire AGREEMENT between the parties hereto with respect to the subject matter hereof. No amendment or modification to this AGREEMENT shall be effective unless in writing and executed by both parties. 13. Damages 13.1 Except as set forth in this AGREEMENT, neither party shall be liable to the other, in any event, for any special or incidental damages arising out of the work performed hereunder, whether arising in contract, tort, California statutes or otherwise. 14. Default and Enforcement 14.1 This AGREEMENT is to be governed by federal law. 14.2 Except as stated in Section 2.4, failure or delay by any party to this AGREEMENT to perform any material term or provision of this AGREEMENT shall constitute a default under this AGREEMENT; provided however, that if the party who is otherwise claimed to be in default commences to cure, correct or remedy the alleged default within fifteen (15) calendar days after receipt of written notice specifying such default and shall diligently complete such cure, correction or remedy, such party shall not be deemed to be in default hereunder. 14.3 The party claiming that a default has occurred shall give written notice of default to the party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, that the non -defaulting party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice, as specified herein. 14.4 Any failure or delay by a party in asserting any of its rights or remedies as to any default shall not operate as a waiver of that or any future default, or of any rights or remedies associated with a default. 14.5 In the event that a default of any party to this AGREEMENT remains uncured for more than fifteen (15) calendar days following written notice, as provided above, a "breach" shall be deemed to have occurred. In the event of a breach, the non - breaching party shall be entitled to seek any appropriate remedy or damages by initiating legal proceedings. 15. Miscellaneous 15.1 Whenever notice is required to be given herein, such notice shall be deemed given when mailed to the party to be notified via certified mail, return receipt 5 requested, or by overnight delivery, at the address first written above, or at such other address as the party may, by written notice, provide to the other. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed as of the date first written above. AGUA CALIENTE BAND OF CAHUILLA INDIANS APP VED Y: Thoma J. Davis, Chief Planning & Development Officer APP OVED AS TO FORM: 26��= iane Vitols, Tribal Attorney CITY OF PALM SPRINGS APPROVED BY: ,y> APPROVED BY CITY COUNrC.IL David H. Ready, C nager 2'� fib`"1� ATTESTED BY: ames Thompson, City Clerkaz/ 20jZ ORIGINAL BID ANDIOR AGREEMENT EXHIBIT "A" SCOPE OF WORK The City of Palm Springs will design and construct the Tahquitz Canyon Way Median Landscaping Improvements, City Project No. 08-20. The Project is generally defined as: The replacement of existing median landscaping within Tahquitz Canyon Way in Section 14, including new decorative paving at various street intersections and associated improvements to be further defined in plans approved by the Tribe and City prior to construction. The City will retain its professional landscape architectural firm, RGA Landscape Architects, Inc., to complete the final design of the median islands, mid -block crossings and enhanced paving intersections on Tahquitz Canyon Way in Section 14; an area extending from Indian Canyon Drive to Sunrise Way (approximately 1 mile). The final design will be based on the schematic design previously prepared by RGA Landscape Architects and approved by the Tribal Council and City Council. The final design will be subject to review and approval through the Indian Planning Commission and Tribal Council, as well as the City's Architectural Advisory Committee and City Council. All work will be performed in accordance with the final plans and specifications approved by the City for bidding, and the City shall facilitate the bidding, construction contract, and construction engineering (inspection, materials testing and oversight) of the project. The City shall provide all labor, materials, and equipment necessary for construction of the project. The City may retain RGA Landscape Architects or another firm to provide contact administration and inspection. COMPENSATION The maximum funds available for reimbursement pursuant to this Agreement are $2,000,000. TERM The term of this contract shall commence upon its execution and shall extend through completion of the construction phase of this project. The following schedule is the estimated time for completion of this project, which is subject to change: Final Design: Bidding: Bid Opening: Contract Award: Start Construction; End Construction: Project Close -Out: January 2013 June 2013 August 2013 September 2013 November 2013 May 2014 July 2014 EXHIBIT B INSURANCE 1.1 Overview. In an effort to standardize the insurance program of the Tribe and coordinate the insurance of Vendors with the Tribe's own program, the following are the requirements for Vendor insurance coverages. 1.1.1 Liability Coverage. SUBCONTRACTOR, at the SUBCONTRACTOR's sole expense, shall obtain and pay for, and at all times maintain in full force and effect a One Million Dollar ($1,000,000) combined single limit per occurrence, and a One Million Dollar ($1,000,000) combined single limit aggregate, Commercial General Liability policy. Such policy shall insure against any and all losses arising out of, or in connection with the operations of the SUBCONTRACTOR. Such coverage shall also provide products and completed operations coverage. 1.1.2 Automobile Insurance. SUBCONTRACTOR, at the SUBCONTRACTOR's sole expense, shall obtain and pay for, and at all times maintain in full force and effect a One Million Dollar ($1,000,000) combined single limit per occurrence automobile liability policy. Such policy shall include coverage for non -owned and hired car coverage. 1.1.3 Worker's Compensation. SUBCONTRACTOR, at the SUBCONTRACTOR's sole expense, shall obtain and pay for, and at all times maintain in full force and effect, a worker's compensation policy in the statutory amount. Such coverage shall provide employer's liability of at least One Million Dollars ($1,000,000) and include a waiver of subrogation in favor of the Agua Caliente Band of Cahuilla Indians. 1.1.4 Professional Liability. SUBCONTRACTOR, at the SUBCONTRACTOR's sole expense shall obtain and pay for, and at all times maintain in full force and effect a policy of Professional Liability (Errors and Omissions) in an amount of not less than One Million Dollars ($1,000,000) per claim and in the aggregate with respect to loss arising from the actions of the SUBCONTRACTOR performing professional services on behalf of the Agua Caliente Band of Cahuilla Indians. 1.2 Common Provisions. 1.2.1 Certificates. Certificates of insurance shall be provided to the TRIBAL GOVERNMENT's Risk Manager at the following address: Agua Caliente Band of Cahuilla Indians c/o F.T. Kieley III, Risk Management Consultant P.O. Box 3275 Palm Springs, CA 92263-3275 Voice: (760) 327-9160 Fax: (760) 327-6450 1.2.2 Additional Named Insured Endorsements. The policies shall name the Agua Caliente Band of Cahuilla Indians, its employees and agents as additional named insureds. 1.2.3 Cancellation Provisions. Policies shall not be canceled or modified without at least thirty (30) days prior written notice. 1.2.4 Suitability of Companies. All such coverage shall be written by admitted carrier in the State of California with a "Best's" insurance rating of A, Class X or better. 1.2.5 Primacy. All such coverage shall be primary insurance, and any insurance or self insurance programs of the Agua Caliente Band of Cahuilla Indians shall be non-contributing.