1 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 Tribal Transportation Program Funding for Reservation Roads, dated August 28, 2019, this Subcontractor Services Agreement (“AGREEMENT”) is made and entered into this 30th day of November 2022, 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 California charter city, 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 serv ices as an independent contractor and shall be responsible for the manner, means, methods, materials, licenses, permits, fees, employer’s and other taxes, royalties, health an d safety precautions, workers’ compensati on insurance, and other conditions and qualifications necessary to perform the services and achieve th e results required to professionally and competently furnish and complete the serv ices outlined in Exhibit “A” hereto. SUBCONTRACTOR shall not be deemed an agent f o r , o r engaged in a joint venture with, t he TRIBAL GOVERNMENT, and sha ll have no authority to bind the TRIBAL GOVERNMENT.
2. Performance Standards and Other Conditions
2.1 All work performed by SUBCONT RACTOR shall be performed in a ccordance with generally recognized indust ry practices and professional s tandards for similar professional services. SUBCONTRACTOR agrees that it wi ll, at SUBCONTRACTOR’S expense, retain the services of all personnel r easonably 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 subcontractor s 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 2.3 SUBCONTRACTOR shall schedul e and perform its work with dili gence and in character, sequence and timing so t hat SUBCONTRACTOR’S work wil l be coordinated with that of the TRIBAL GOVERNMENT.
2.4 SUBCONTRACTOR shall not be liable for delays or other non-p erformance resulting from circumstances or causes beyond its reasonable co ntrol, including without limitation, fir e or other casualty, Acts of God, strike s or labor disputes, war or other violence, acts of t hird 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 t he 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 i nvoices to the TRIBAL GOVERNMEN T for payment of services provided.
4.2 Invoices for services are subject to approval of and full a udit 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 w ill promptly consult with SUBCONTRATOR to resolve any portions that may be in dispute.
5. Additional Work
5.1 From time to time, by wri tten amendment to this AGREEMENT i n accordance with the provisions of Section 12.1 of this AGREEMENT, the TRIB AL GOVERNMENT may change, alter or m odify 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.
3 6. Term and Termination
6.1 This AGREEMENT shall remain in effect until such time as th e services outlined in Exhibit “A” are completed, o r until September 30, 2025, whic hever is sooner, unless sooner terminated in accordance with the terms hereof.
6.2 Either the TRIBAL GOVERNMENT or SUBCONTRACTOR may terminate t h i s AGREEMENT at any time for convenience, or upon breach of this A GREEMENT by the non-terminating Party, p rovided that the terminating Par ty provides the other Party at least thirty (30) days written notice of such te rmination 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 s ole 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 i mmediately deliver all completed work and al l work-in-progress to the TRIB AL 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 respons ible for complying with all a pplicable 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 perta ining to work performed here under will be kept by SUBCONTRACTOR in a generally recognized accounting form at, 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 per iod 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 drawin gs, specifications, notes, and other work developed in the performance of this AGREEMEN T shall be and remain the joint property of 4 the TRIBAL GOVERNMENT and SUBCONTRACTOR and may be used on any other work without additional com pensation under this AGREEMENT . T h e TRIBAL GOVERNMENT and SUBCONTRACTOR reserve a royalty-free, nonexclusive, and irrevocable lic ense to produce, publish, or o therwise use, for general purposes, the copyright or any other intellectual prope rty right in any work developed under this AGREEMENT, or pursuant to a subcontract under this AGREEMENT, and any rights of copy right or any other intellectua l property right which the SUBCONTRACTOR, or its subcontractors, purchases to fa cilitate its work under this AGREEMENT.
8.4 SUBCONTRACTOR shall provide a report to the TRIBAL GOVERNME NT 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 r eceived from the TRIBAL GOVERNMENT; and
8.4.2 a detailed list of all activities for which TTP funds wer e expended, including: the name of the activity, a description of the activ ity, 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/o r any subcontractor of the SUBCONTRAC TOR, 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 natu re or description (including reasonable attorney fees) arising from, or in any wa y attributable to or related to the negligence or willful misconduct of SUBCONTRACTO R hereunder, including SUBCONTRACTO R’S officers, employees, agents, principa ls, 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, sui ts, actions, liens, damages, loss, liability or costs of every natu re or description (including reasonable attorney fees) arising from, or in any wa y attributable to or related to the negligence or willf ul misconduct of the TRIBAL G OVERNMENT hereunder, including the TRIBAL GO VERNMENT'S officers, employees, agents, principals, shareholders, and directors.
5 11. Successors and Assigns
11.1 SUBCONTRACTOR hereby binds itself, its successors, executo rs, administrators, assigns and legal representatives to this AGREE MENT with respect to all covenants and obligations of SUBCONTRACTOR under t h i s AGREEMENT.
11.2 Except as set forth in this AGREEMENT, SUBCONTRACTOR shall not assign, sublet, or transfer any rights or obligations under, or interes t in, this AGREEMENT without the prior writt en consent of the TRIBAL GOVER NMENT, 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 subjec t matter hereof. No amendment or modificati on to this AGREEMENT shall be effective unless in writing and executed by both Parties.
13. Damages
13.1 Except as set forth in this A GREEMENT, 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 arisi ng in contract, tort, Califor nia 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 P arty to this AGREEMENT to perform any material term or provision of this AGR EEMENT shall constitute a default under this AGREEMENT; provided howev er, that if the Party who is otherwise claimed to be in default commences to cu re, correct or remedy the alleged default withi n fifteen (15) calendar days af ter receipt of written notice specifying such default and shall diligently com plete 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 chang e 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 writt en default notice, as specified herein.
6 14.4 Any failure or delay by a Party in asserting any of its ri ghts or remedies as to any default shall not operate as a w aiver of that or any future def ault, or of any rights or remedies associated with a default.
14.5 In the event that a default of either Party to this AGREEM ENT remains uncured for more than thirty (30) calen dar days following written notic e, as provided above, a "breach" shall be deemed to have occurred. In the eve nt of a breach, the non-breaching Party shall be entitled to seek any appropria te remedy or damages by initiating legal proceedings.
15. Miscellaneous
15.1 Whenever notice is required to be given herein, such notic e shall be deemed given when mailed to the Party to be notified via certified mai l, return receipt requested, or by overnight deliver y, at the address first writt en above, or at such other address as the Party may, by written notice, provide to the other.
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7 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
APPROVED BY:
_________________________________
Max Ross, Chief Executive Officer
APPROVED AS TO FORM:
__________________________________
John T. Plata, General Counsel
CITY OF CATHEDRAL CITY
APPROVED BY:
_________________________________
Charles P. McClendon, City Manager
ATTESTED BY:
________________________________
Tracey R. Hermosillo, City Clerk
APPROVED AS TO FORM:
________________________________
Eric S. Vail, City Attorney
1 EXHIBIT “A”
SCOPE OF WORK
Cathedral City will complete the design and construct the Date Palm Drive Pavement Rehabilitation Project CIP Project No. 8840, which is generally defined as:
Date Palm Drive Pavement Rehabilitation Project:
The project will consist of a pavement rehabilitation, drainage improvements, sidewalks, ADA compatible access ramps, and traffic striping on Date Palm Driv e. In addition, concrete approach lanes will be installed at the intersection of 30 th Ave and Date Palm Drive, and the City
will analyze the potential use of concrete approaches at other major intersections along Date Palm Drive.
All work will be performed in accordance with the final plans a nd specifications approved by the City. The construction contracts will be publicly bid in accord ance with local and state requirements. The City will manage the construction contract(s) , and will provide construction engineering (survey, inspection, materials testing and oversigh t) for the project. The City may retain various qualified firms to provide construction engineering services.
COMPENSATION
The maximum funds available for reimbursement pursuant to this Agreement are $5,000,000.
TERM
The term of this AGREEMENT shall commence upon its execution an d shall extend through completion of the construction phase of the project. The follo wing schedule is the estimated time for completion of the project, which is subject to change:
F i n a l D e s i g n : A p r i l 2023
P r o j e c t B i d : M a y 2023
Contract Award: July 2023
Start Construction: August 2023
End Construction: October 2023
Project Close-Out: December 2023
1 EXHIBIT B
INSURANCE
1.1 Overview. In an effort to standardize the insurance progra m of the TRIBAL GOVERNMENT and coordinate the insurance of subcontractors with the TRIBAL GOVERNMENT’s own program, the following are the requirements fo r subcontractor insurance coverages.
1.1.1 Liability Coverage. SUBCONTRACTOR, and/or any subcontrac tor of the SUBCONTRACTOR, at the SUBCONTRACTOR’S/subcontractor’s sole expense, shall obtain and pay for, and at all times maintain in full for ce and effect a One Million Dollar ($1,000,000) combined single limit per occurrenc e, and a One Million Dollar ($1,000,000) combined single limit aggregate, Co mmercial General Liability policy. Such policy shall insure against any and all losses arising out of, or in connection with the operations of the SUBCONTRACTOR. Suc h coverage shall also provide products and completed operations coverage.
1.1.2 Automobile Insurance. SUBCONTRACTOR, and/or any subcontr actor of the SUBCONTRACTOR, at the SUBCONTRACTOR’S/subcontractor’s sole expense, shall obtain and pay for, and at all times maintain in full for ce and effect a One Million Dollar ($1,000,000) combined single limit per occurrenc e automobile liability policy. Such policy shall include coverage for non-o wned and hired car coverage.
1.1.3 Worker’s Compensation. SUBCONTRACTOR, and/or any subcont ractor of the SUBCONTRACTOR, at the SUBCONTRACTOR’S/subcontractor’s sole expense, shall obtain and pay for, and at all times maintain in full for ce and effect, a worker’s compensation policy in the statutory amount. Such cov erage shall provide employer’s liability of at least One Million Dollars ($ 1,000,000) and include a waiver of subrogation in favor of the Agua Caliente B and of Cahuilla Indians.
1.1.4 Professional Liability. SUBCONTRACTOR, and/or any subcon tractor of the SUBCONTRACTOR, at the SUBCONTRAC TOR’S/subcontractor’s sole expe nse shall obtain and pay for, and at all times maintain in full for ce and effect a policy of Professional Liability (Errors and Omissions) in an amount o f 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 p rofessional services which include those to be performed on behalf of the A gua Caliente Band of Cahuilla Indians.
1.2 Common Provisions.
1.2.1 Certificates. Certificates of insurance shall be provide d 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
2 1.2.2 Additional Named Insured Endorsements. The policies (oth er than professional liability) shall name the Agua Caliente Band of Cahuilla Indian s, 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 wri tten 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, a nd any insurance or self insurance programs of the Agua Caliente Band of Cahuilla I ndians shall be non-contributing.