HomeMy WebLinkAboutFW_ Canyon Loop Trail Project -Native American MonitoringCan you give me a call when you can to go over these?
I am in the office.
Thanks
From: Omar Sandoval <osandoval@wss-law.com>
Sent: Wednesday, October 19, 2022 4:45 PM
To: Ryan Wright <RWright@DiamondBarCA.Gov>; Greg Gubman <GGubman@DiamondBarCA.Gov>
Cc: Ryan McLean <RMcLean@DiamondBarCA.Gov>; David A. DeBerry <ddeberry@wss-law.com>; Dan Fox <DFox@DiamondBarCA.Gov>
Subject: RE: Canyon Loop Trail Project -Native American Monitoring
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Well, we have to be mindful of what we would be agreeing to:
Section 2.4 of their agreement expands the mitigation to require the City to provide a designated area on its property to reinter any unearthed remains or cultural resources. In the
mitigation and the law, their contractual provision is one of various options, and their agreement is arguably eliminating the other options, which include the nondestructive removal
of the items, preservation in place, or relinquishment to descendants.. Section 2.5 carries this same reinterment requirement if remains/resources are found on private property.
Section 3.1(f) requires the City to employ the tribe’s archaeologist if resources are found. Nothing in the mitigation requires the City to employ an archaeologist (an archaeologist
is required only if one is present when unearthing a resource).
Section 3.1(h) requires the City to pay for lodging if the monitor must travel 40 miles or more, which is not a very long distance.
Section 6.2 provides that their liability is capped at the amount of insurance coverage they carry. But, Section 7.1 does not identify the amount of insurance they carry. It only provides
that a certificate of general liability insurance can be provided upon request. There is no provision for adding the City as an additional insured, and there is no provision requiring
the Tribe or monitor to defend/indemnity the City in the event of third party liability or worker’s compensation liability. However, the exposure to third party liability is probably
small.
Section 6.4 requires us to agree to a noncompliance fee. Let’s hope that the monitor does not find any activity of our contractor to be an event of noncompliance with the mitigation
measure.
I think that we should at least ask them to remove Section 3.1(f) and the noncompliance fee which are beyond the required mitigation. Note that there is no repercussion against the
monitor if they fail to show up on a day that they are required to be present at the jobsite. If the monitor does not show up, our contractor would have to refrain from any ground-disturbing
activities. We should further ask for a copy of their insurance so we can at least have that information in the record. I would also ask them to remove Section 3.1(g) since they should
be coming from Covina, or increase the mileage to 100 miles.
Let me know if you want to discuss my comments further. Thank you. Omar.
Omar Sandoval
Director
Woodruff, Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
T: 714-415-1049 <tel:714-415-1049> F: 714-415-1149
osandoval@wss-law.com <mailto:osandoval@wss-law.com>
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From: Ryan Wright <RWright@DiamondBarCA.Gov <mailto:RWright@DiamondBarCA.Gov> >
Sent: Wednesday, October 19, 2022 2:52 PM
To: Greg Gubman <GGubman@DiamondBarCA.Gov <mailto:GGubman@DiamondBarCA.Gov> >; Omar Sandoval <osandoval@wss-law.com <mailto:osandoval@wss-law.com> >
Cc: Ryan McLean <RMcLean@DiamondBarCA.Gov <mailto:RMcLean@DiamondBarCA.Gov> >
Subject: RE: Canyon Loop Trail Project -Native American Monitoring
Thanks Greg. I tend to agree.
From: Greg Gubman <GGubman@DiamondBarCA.Gov <mailto:GGubman@DiamondBarCA.Gov> >
Sent: Wednesday, October 19, 2022 2:46 PM
To: Ryan Wright <RWright@DiamondBarCA.Gov <mailto:RWright@DiamondBarCA.Gov> >; Omar Sandoval <osandoval@wss-law.com <mailto:osandoval@wss-law.com> >
Cc: Ryan McLean <RMcLean@DiamondBarCA.Gov <mailto:RMcLean@DiamondBarCA.Gov> >
Subject: RE: Canyon Loop Trail Project -Native American Monitoring
All,
For what it’s worth, I think we should acquiesce if they don’t want to negotiate the terms or refer it to their legal counsel. As George Costanza would put it, we don’t have hand.
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From: Ryan Wright <RWright@DiamondBarCA.Gov <mailto:RWright@DiamondBarCA.Gov> >
Sent: Wednesday, October 19, 2022 2:31 PM
To: Omar Sandoval <osandoval@wss-law.com <mailto:osandoval@wss-law.com> >
Cc: Greg Gubman <GGubman@DiamondBarCA.Gov <mailto:GGubman@DiamondBarCA.Gov> >; Ryan McLean <RMcLean@DiamondBarCA.Gov <mailto:RMcLean@DiamondBarCA.Gov> >
Subject: RE: Canyon Loop Trail Project -Native American Monitoring
Hi Omar,
I followed up last night with an email to the Kizh Nation based on your request below and have yet to receive any response. I tend to believe they do not share the same urgency as the
City, not to mention the City Manager is off Friday and grading should begin Monday. Realizing he Kizh will provide the City with insurance and our options are extremely limited per
the mitigation, do you have any serious concerns or recommendations that would prohibit us from moving forward with their agreement?
Thanks Again,
Ryan
From: Ryan Wright
Sent: Tuesday, October 18, 2022 5:45 PM
To: 'Omar Sandoval' <osandoval@wss-law.com <mailto:osandoval@wss-law.com> >
Cc: Greg Gubman <GGubman@DiamondBarCA.Gov <mailto:GGubman@DiamondBarCA.Gov> >; Ryan McLean <RMcLean@DiamondBarCA.Gov <mailto:RMcLean@DiamondBarCA.Gov> >
Subject: RE: Canyon Loop Trail Project -Native American Monitoring
Will do.
From: Omar Sandoval <osandoval@wss-law.com <mailto:osandoval@wss-law.com> >
Sent: Tuesday, October 18, 2022 5:03 PM
To: Ryan Wright <RWright@DiamondBarCA.Gov <mailto:RWright@DiamondBarCA.Gov> >
Cc: Greg Gubman <GGubman@DiamondBarCA.Gov <mailto:GGubman@DiamondBarCA.Gov> >; Ryan McLean <RMcLean@DiamondBarCA.Gov <mailto:RMcLean@DiamondBarCA.Gov> >
Subject: RE: Canyon Loop Trail Project -Native American Monitoring
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Ryan, I would push back a bit. Their agreement deviates greatly from the City’s standard requirements for contractors. Tell them that our agreement is the standard we use for all contracting
parties. Ask them what they find objectionable with our agreement. Our terms are commensurate with our risk management policies.
Omar Sandoval
Director
Woodruff, Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
T: 714-415-1049 <tel:714-415-1049> F: 714-415-1149
osandoval@wss-law.com <mailto:osandoval@wss-law.com>
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From: Ryan Wright <RWright@DiamondBarCA.Gov <mailto:RWright@DiamondBarCA.Gov> >
Sent: Tuesday, October 18, 2022 2:20 PM
To: Omar Sandoval <osandoval@wss-law.com <mailto:osandoval@wss-law.com> >
Cc: Greg Gubman <GGubman@DiamondBarCA.Gov <mailto:GGubman@DiamondBarCA.Gov> >; Ryan McLean <RMcLean@DiamondBarCA.Gov <mailto:RMcLean@DiamondBarCA.Gov> >
Subject: FW: Canyon Loop Trail Project -Native American Monitoring
Hi Omar,
I have not had the chance to review yet, but would appreciate your feedback. I don’t know if there is any negotiation per the agreement but this is a different approach when comparing
to the Tongva. Please let me know your thoughts before we ask the City Manager for signature.
Thank You,
Ryan
From: KNRM Administration <admin@knrm-nsn.us <mailto:admin@knrm-nsn.us> >
Sent: Tuesday, October 18, 2022 2:11 PM
To: Ryan Wright <RWright@DiamondBarCA.Gov <mailto:RWright@DiamondBarCA.Gov> >
Subject: Re: Canyon Loop Trail Project -Native American Monitoring
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Hello Ryan,
Thank you for your email. After reviewing the agreement we noticed the agreement you had sent us was for a consultant. Please note we are not consultants, we are a tribal government
who consulted and helped with compliance mitigations to help the project move forward therefore we would like to utilize our agreement for the proposed project. Attached is the service
agreement for the compliance of the project. If you have any questions please reach out to Mr. Salas.
Thank you,
Lexie Salas
Project Manager
(626)-521-5827
On Tue, Oct 18, 2022 at 9:27 AM Ryan Wright <RWright@diamondbarca.gov <mailto:RWright@diamondbarca.gov> > wrote:
Thank you, hopefully we can get the process started today.
From: KNRM Administration <admin@knrm-nsn.us <mailto:admin@knrm-nsn.us> >
Sent: Monday, October 17, 2022 4:13 PM
To: Ryan Wright <RWright@DiamondBarCA.Gov <mailto:RWright@DiamondBarCA.Gov> >
Subject: Re: Canyon Loop Trail Project -Native American Monitoring
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Hello Ryan,
Thank you for sending over the agreement. We are now reviewing.
Thank you,
Lexie Salas
Project Manager
(626)-521-5827
On Sun, Oct 16, 2022 at 9:38 AM Ryan Wright <RWright@diamondbarca.gov <mailto:RWright@diamondbarca.gov> > wrote:
Good Morning Kizh Nation,
I appreciate your support over a busy weekend and thank you for clarifying the monitoring process. I look forward to working together on this project. I hope we can quickly work
through the agreement process since the project does begin this week. I will attempt to cover everything in this one email which may serve as a checklist.
1. Please note, there is a kick-off meeting tomorrow, Monday, October 17 at 9am with the project team . Although the trail does not have a specific address, I would suggest you use
24210 Peak Court, Diamond Bar, 91765 for driving directions. There is a gate next to this residence which will provide trail access. (Please note this is not the trail address.)
2. Per your previous email, I will be the project manager and my contact info is below. There is not a project address, but the formal title is the Canyon Loop Trail Project. We
are working on a fictitious address and will share that when it’s available. The anticipated ground disturbance is from approximately October 19 through November 16, 2022, but the contractor
can confirm tomorrow.
3. In the attached draft agreement please see the specific insurance requirements on page 4. Although the limits may vary, I have also attached an example of what the insurance certificates
should include. Please confirm the amounts on page 4 of the agreement.
4. Please see the attached draft agreement and let me know what I should include in the highlighted areas. Once this is complete, I will update and send back to you for signature,
followed by City signatures. I will need a Scope of Work for Exhibit A, which I think would be similar to the proposal you create. We can simply attach that proposal as Exhibit A.
Please include the hourly fee in the scope.
5. Please send me a W-9 for payment processing.
I realize this is all short notice, but as you know the agreement must be in place ASAP. If we can receive the above information by the end of tomorrow that would be great. (I realize
insurance will take a couple days.) I will be available tomorrow at anytime to assist if needed or feel free to email me over the weekend. Thanks again for your help!
Best,
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City of Diamond Bar | Parks and Recreation Department
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