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9</FORN� CITY COUNCIL STAFF REPORT
Date: January 18, 2012 CONSENT CALENDAR
Subject: TAHQUITZ CANYON WAY MEDIAN LANDSCAPING, CITY PROJECT
NO. 08-20
From: David H. Ready, City Manager
Initiated by: Public Works and Engineering Department
SUMMARY
The Tribe has allocated $2,000,000 from its Indian Reservation Roads (IRR) Program to
the City to complete the final design to replace the existing median landscaping within
Tahquitz Canyon Way in Section 14 (Indian Canyon Drive to Sunrise Way). Approval of
a Memorandum of Understanding ("MOU") and an associated Subcontractor Services
Agreement authorizes the Tribe's allocation of IRR funds to the City for this project.
RECOMMENDATION:
1) Approve Agreement No. an Intergovernmental Memorandum of
Understanding by and between the Agua Caliente Band of Cahuilla Indians and
the City of Palm Springs regarding Indian Reservation Roads Program Funding
for the Tahquitz Canyon Way Median Landscaping Improvements Project; and
2) Approve Agreement No. , a Subcontractor Services Agreement by and
between the Agua Caliente Band of Cahuilla Indians and the City of Palm
Springs for the Tahquitz Canyon Way Median Landscaping Improvements
Project; and
3) Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
On March 12, 2008, the City Council approved a MOU with the Tribe and the Bureau of
Indian Affairs ("BIA") establishing an arrangement whereby the Tribe can assign to the
City use of its IRR funds received from the BIA. Prior to receiving any IRR funds, the
Tribe and City must enter into a subsequent MOU regarding allocation of IRR funds to a
specific project. The attached MOU will officially allocate the IRR funds to the Tahquitz
Canyon Way Median Landscaping Improvements Project. A funding agreement is also
necessary to formalize the Tribe's reimbursement to the City of its costs for this project.
ITEM NO.
City Council Staff Report
January 18, 2012- Page 2
Tahquitz Canyon Way Median Landscaping, IRR Funding
The Tribe has generously allocated the City $2,000,000 from its IRR funds to replace
the existing median landscaping within Tahquitz Canyon Way in Section 14 (from Indian
Canyon Drive to Sunrise Way), 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 previously engaged RGA Landscape Architects to prepare conceptual
schematic landscape plans for the Tahquitz Canyon Way median, which also included a
schematic plan for the City Hall parking lot. The conceptual plans were reviewed and
approved by the Indian Planning Commission and Tribal Council. The conceptual plans
were subsequently approved by the Director of Planning Services, but appealed to and
denied by the Planning Commission. Approval of the conceptual plans is pending
resolution of a related issue on the historic designation of the City Hall parking lot, and a
pending City Council appeal of the Planning Commission's denial of the conceptual
plans.
It will be staffs intention to separate the Tahquitz Canyon Way median landscaping
from any proposal related to City Hall. Staff will bring forward the conceptual
landscaping plans for the Tahquitz Canyon Way median landscaping to City Council for
its approval in the near future. Subsequently, final landscaping plans for the segment
within Section 14 will be prepared for review by the Indian Planning Commission, Tribal
Council, Architectural Advisory Committee, and approval by the City Council. The City
will be responsible for coordinating the final design and construction of this project.
FISCAL IMPACT:
Approval of the MOU and Subcontractor Services Agreement will allow the City to
indirectly receive $2,000,000 of federal funds from the IRR Program from the Agua
Caliente Band of Cahuilla Indians to complete the re-landscaping of the Tahquitz
Canyon Way median within Section 14 (from Indian Canyon Drive to Sunrise Way).
SUBMITTED:
Prepared by: Recommended by:
4� oj�
Marcus L. Fuller David J. Barakian
Assistant Director of Public Works Director of Public Works/City Engineer
Approved by:
,
Thomas J. VNhAon, Asst. City Manager David H. Ready, ager
Attachments: 1. Memorandum of Understanding, 2. Agreement 02
INTERGOVERNMENTAL
MEMORANDUM OF UNDERSTANDING
By and Between
THE AGUA CALIENTE BAND OF CAHUILLA INDIANS
and
THE CITY OF PALM SPRINGS
Regarding
INDIAN RESERVATION ROADS PROGRAM FUNDING
forthe
TAHQUITZ CANYON WAY MEDIAN LANDSCAPING IMPROVEMENTS PROJECT
THIS INTERGOVERNMENTAL MEMORANDUM OF UNDERSTANDING
("MOU") is entered into this _ day of 2012, by and between the
AGUA CALIENTE BAND OF CAHUILLA INDIANS, a federally-recognized Indian Tribe,
(the 'Tribe") and the CITY OF PALM SPRINGS, a municipal corporation (the "City").
I.
RECITALS
WHEREAS, the Agua Caliente Band of Cahuilla Indians is a federally-recognized
Indian Tribe governing itself according to a Constitution and By-Laws and exercising
sovereign authority over the lands of the Agua Caliente Indian Reservation (the
"Reservation"), acting through its duly elected Tribal Council, pursuant to Federal law;
and
WHEREAS, the City, acting through its City Council, is a political subdivision of
the State of California, established pursuant to the Constitution of the State of
California; and
WHEREAS, the Tribe receives funding through the federal Indian Reservation
Roads (IRR) Program for the planning, design, construction, and maintenance of public
roads that provide access to and within the Reservation and serve the cultural, social,
economic, and/or governmental needs of the Tribe; and
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WHEREAS, the Tribe and the City desire to work together in good faith to
complete the design and construction of the Tahquitz Canyon Way Median Landscaping
Improvements Project (the 'Project'), a Capital Improvement Project for the City. 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.
II.
COMMITMENTS:
1. The Tribe will make payments, as necessary and subject to the availability of
funds from its annual IRR Program funding allocations, to the City for use toward the
design and construction of the Project, based on records of work performed and
progress estimates submitted to the Tribe.
2. The City will credit the Tribe the amount of all IRR Program funds received
toward the planning, design, and construction of the Project, as advance payment for
any Tribally recognized traffic mitigation costs and/or fees associated with the
development of Tribal Trust projects as identified through the Tribal Environmental
Policy Act(TEPA) process.
III.
GENERAL TERMS AND CONDITIONS:
1. Recitals. All of the above recitals are true and correct and the Tribe and City
so find and determine.
2. Modifications. This MOU may only be modified in writing, signed and duly
approved by both the Tribal Council and the City Council.
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3. Approval. This MOU shall be approved by the City Council of City and the
Tribe shall approve this MOU by passage of a duly adopted resolution of the Tribal
Council.
4. Authority. The individuals signing this MOU warrant and represent that
pursuant to their respective constitutions and/or bylaws they have the full power and
authority to enter into this MOU and fully perform in accordance with the terms hereof,
and the Tribe and the City acknowledge that their respective legal counsels have
advised that this MOU is not subject to approval of the authorized representative of the
Secretary of the Interior under 25 U.S.C. §81.
5. Effective Date. This MOU shall take effect on the date first set forth above.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this MOU as of the date
first written above.
AGUA CALIENTE BAND OF CAHUILLA INDIANS
Approved as to Form
Tribal Attorney
/A proved as to Form
/'"City Attorney
"TRIBE"
Agua Caliente Band of Cahuilla Indians
A Federally-Recognized Sovereign Indian Tribe
Zicrd tlanoAch
Tribal Council Chairman
"CITY"
City of Palm Springs, California
A Municipal Corporation ATTEST
City Manager City Clerk
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SUBCONTRACTOR SERVICES AGREEMENT
This AGREEMENT is made and entered into this _day of 2012, by and
between Agua Caliente Band of Cahuilla Indians, a federally-recognized 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.
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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 Vt and the 10t" 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 parry, provided that the terminating party provides the other party at
least thirty (30) days written notice of such termination.
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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.
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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.
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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
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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.
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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 VE
Thoma J. Davis, Chief Planning & Development Officer
APP OVED AS TO FORM:
Diane Vitols, Tribal Attorney
CITY OF PALM SPRINGS
APPROVED BY:
David H. Ready, City Manager
ATTESTED BY:
James Thompson, City Clerk
APPROVED AS TO FORM:
Douglas Holland, City Attorney
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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 Citys 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: January 2013
Bidding: June 2013
Bid Opening: August 2013
Contract Award: September 2013
Start Construction: November 2013
End Construction: May 2014
Project Close-Out: July 2014 14
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 Comoensation. 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.
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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 Ague Caliente Band of Cahuilla Indians shall be
non-contributing.
is