HomeMy WebLinkAboutContract 1635-1 a - I
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SUBCONTRACTOR SERVICES AGREEMENT �
In furtherance of that certain Intergovernmental Memorandum of Understanding By and
Between the Agua Caliente Band of Cahuilla Indians and the City of Cathedral City
Regarding Project Contributions for the Ramon Road Bridge Widening and Vista Chino
Roadway Resurfacing Projects, dated December 9, 2015, this Subcontractor Services
Agreement ("AGREEMENT") is made and entered into this 29 day of N1nrcL
2016, 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 Cathedral City
("SUBCONTRACTOR"), a municipal corporation, with offices at 68700 Avenida Lalo
Guerrero, Cathedral City, CA 92234. The TRIBAL GOVERNMENT and
SUBCONTRACTOR are sometimes referred to hereinafter individually as a "Party" and
collectively as the "Parties."
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
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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.
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 SUBCONTRACTOR shall submit invoices to the TRIBAL GOVERNMENT for
payment of services provided.
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 undisputed portions of
SUBCONTRACOR'S proper invoices within 30 days of receipt, and will promptly
consult with SUBCONTRATOR to resolve any portions that may be in dispute.
5. Additional Work
5.1 From time to time, by written amendment to this AGREEMENT in accordance
with the provisions of Section 12.1 of this AGREEMENT, 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 invoiced prior to the
alteration or modification of the Scope of Work.
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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 September 30, 2019, 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 for convenience, or 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 and the
non-terminating Party fails to cure the breach during that period.
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 Tribal
Transportation Program (TTP) 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
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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 TTP 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/or 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.
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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,
which consent shall not be unreasonably withheld or delayed.
12. Entirety
12.1 This AGREEMENT and the Exhibits attached 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.
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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 either Party to this AGREEMENT remains uncured
for more than thirty (30) 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
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
AP"O`D : •
Thom:s J. Davis, Chief Planning & Development Officer
APPROVED AS TO FO 'f�
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John T."lata, General Counsel
CITY OF PALM SPRINGS
APPRO ED BY: I
Charlie McClendon, City Manager
ATTESTED BY:
Gary How-II, City ti-rk
APPROVED AS
Eric S. Vail, City Attorney
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EXHIBIT "A"
SCOPE OF WORK
Cathedral City will complete the design and construct the Ramon Road Bridge Widening
Improvements, City CIP Project No. 2500 and the Vista Chino Pavement Resurfacing Projects,
City CIP Project Nos. 8659 and 8660.
The Ramon Road Bridge Widening Project:
This project will widen Ramon Road to provide three lanes in each direction from San Luis Rey
Drive to Landau Boulevard, including the Ramon Road Bridge at the Whitewater River. The
proposed bridge rehabilitation will involve removal of a portion of the existing structure, bridge
widening, repairing and sealing the existing bridge deck, seismic retrofitting, channel work, and
approach roadway improvements. The proposed work will resolve structural deficiencies and, at
the same time, improve traffic safety and traffic flow on the existing narrow river crossing and
nearby congested street intersections.
The Visa Chino Pavement Resurfacing Projects:
These projects will rehabilitate pavement, construct median curb, drainage improvements,
sidewalks, wheelchair ramps, and traffic striping, on Vista Chino from Landau Boulevard to Date
Palm Drive and from Landau Boulevard to the west city limits at the Whitewater River. The
reconstructed roadway is approximately two miles in length. The existing pavement will be
pulverized in place, graded and compacted and new asphalt concrete pavement installed. No
deep excavations are anticipated and all work will be within the existing right of way.
All work on the above projects will be performed in accordance with the final plans and
specifications approved by the City. The construction contracts will be publicly bid in accordance
with local and state requirements. The City will manage the construction contracts, and will
provide construction engineering (survey, inspection, materials testing and oversight) for the
projects. The City may retain various qualified firms to provide construction engineering
services.
COMPENSATION
The maximum funds available for reimbursement pursuant to this Agreement are $2,150,000.00
TERM
The term of this AGREEMENT shall commence upon its execution and shall extend through
completion of the construction phase of the projects. The following schedule is the estimated
time for completion of these projects, which is subject to change:
Ramon Road Bridge Widening Project:
Final Design: December 2016
Contract Negotiation: May 2017
Contract Award: July 2017
Start Construction: September 2017
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End Construction: August 2019
Project Close-Out: October 2019
Vista Chino Resurfacing Projects:
Final Design: June 2016
Contract Negotiation: August 2016
Contract Award: September 2016
Start Construction: September 2016
End Construction: November 2016
Project Close-Out: January 2017
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EXHIBIT B
INSURANCE
1.1 Overview. In an effort to standardize the insurance program of the TRIBAL
GOVERNMENT and coordinate the insurance of subcontractors with the TRIBAL
GOVERNMENT's own program, the following are the requirements for subcontractor
insurance coverages.
1.1.1 Liability Coverage. SUBCONTRACTOR, and/or any subcontractor of the
SUBCONTRACTOR, at the SUBCONTRACTOR'S/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, and/or any subcontractor of the
SUBCONTRACTOR, at the SUBCONTRACTOR'S/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, and/or any subcontractor of the
SUBCONTRACTOR, at the SUBCONTRACTOR'S/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, and/or any subcontractor of the
SUBCONTRACTOR, at the SUBCONTRACTOR'S/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 which include those to be performed 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
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1.2.2 Additional Named Insured Endorsements. The policies (other than professional
liability) 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.
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