HomeMy WebLinkAboutC-4559 - PSA for Native American Construction Monitoring for Newport Beach Civic Center & Park Development Project - Amendment No. 1Y-9
AMENDMENT NO. ONE TO
PROFESSIONAL SERVICES AGREEMENT WITH
THE WESTERNERS: THE FIRST PEOPLE OF EARTH MOTHER
(PAYOMKAWICHUM KAAMALAM) FOR
NATIVE AMERICAN CONSTRUCTION MONITORING FOR
NEWPORT BEACH CIVIC CENTER & PARK
DEVELOPMENT PROJECT
THIS AMENDMENT NO. ONE TO PROFESSIONAL SER ICES AGREEMENT
("Amendment No. One"), is entered into as of this 51 v' day of MOM, 2A-1QzJl
by and between the CITY OF NEWPORT BEACH, a California Municip Corporation
("City"), and THE WESTERNERS: THE FIRST PEOPLE OF EARTH MOTHER
(PAYOMKAWICHUM KAAMALAM), a California Nonprofit Corporation whose address
is 4955 Paseo Segovia, Irvine, California 92603 ("Consultant"), and is made with
reference to the following:
RECITALS:
A. On May 5, 2010, City and Consultant entered into a Professional Services
Agreement ("Agreement") for Native American construction monitoring services
for the Newport Beach Civic Center and Park Development Project ("Project").
B. City desires to enter into this Amendment No. One to extend the term of the
Agreement to December 31, 2012.
C. City and Consultant mutually desire to amend the agreement, as provided below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
Section 1 of the Agreement shall be amended in its entirety and replaced with the
following: The term of the Agreement shall terminate on December 31, 2012, unless
terminated earlier as provided for in Agreement.
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants set forth
in Agreement shall remain unchanged and shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
One on the dates written below.
APPROVED AS TO FORM:
OFFI OF THE CITY ATTORNEY
Date: / % r%I U
B) o/ J Y V .
Leonie Mulvihill dc�
Assistant City Attorney
ATTEST:
Date: ,Jt
CITY OF NEWPORT BEACH,
A Califor nxunicipal corporation
Date: ////
hen G. Badum, Public Works
irtment Director
CONSULTANT: PAYOMKAWICHUM
KAAMALAM, a California Nonprofit
Corpor ion
Date: Uu) l U 0
M&
By: By:
Leilani I. Brown
City Clerk
0
� I
00
t
David Belardes
Vice President
PROFESSIONAL SERVICES AGREEMENT WITH
THE WESTERNERS: THE FIRST PEOPLE OF EARTH MOTHER
(PAYOMKAWICHUM KAAMALAM) FOR
NATIVE AMERICAN CONSTUCTION MONITORING FOR
NEWPORT BEACH CIVIC CENTER & PARK
DEVELOPMENT PROJECT pp
THIS AGREEMENT is made and entered into as of this JL"�h day of j i
2010, by and between the CITY OF NEWPORT BEACH, a Municipal C rporation
( "City"), and THE WESTERNERS: THE FIRST PEOPLE OF EARTH MOTHER
(PAYOMKAWICHUM KAAMALAM), a California nonprofit corporation whose address
is 4955 Paseo Segovia, Irvine, California, 92603 ( "Consultant"), and is made with
reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. City is planning to design and construct the new Newport Beach Civic Center
and Park Development Project.
C. City desires to engage Consultant to provide Native American construction
monitoring services for the Newport Beach Civic Center and Park Development
Project ( "Project").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member of Consultant for purposes of Project, shall be Joyce
Perry.
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in. this Agreement.
NOW, TH&2EFORE, it is mutually agreed by and betweere undersigned parties as
follows:
4. T�I�CiiA
A
The term of this Agreement shall commence on the move written date, and shall
terminate on the 315 day of December, 2010, unless terminated earlier as set forth
herein.
2.
R
4.
SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference. The
City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
Consultant shall perform the services in accordance with the schedule included
in Exhibit A. The failure by Consultant to strictly adhere to the schedule may
result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays
due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for
performance in writing to the Project Administrator not later than ten (10)
calendar days after the start of the condition that purportedly causes a
delay. The Project Administrator shall review all such requests and may
grant reasonable time extensions for unforeseeable delays that are
beyond Consultant's control.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by either telephone, fax, hand - delivery or mail.
COMPENSATION TO CONSULTANT
City shall pay Consultant for the services on a time and expense not -to- exceed
basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit B and incorporated herein by reference.
Consultant's compensation for all work performed in accordance with this
Agreement; inciuding all reimbursable items and subconsultant -fees, shall not
exceed Thirty -One Thousand, Seven Hundred Dollars and no /100
($31,700.00) without prior written authorization from City. No billing rate changes
shall be made during the term of this Agreement without the prior written
approval of C:
4.1 Cons shall - submit monthly invoices to Gity desafting the J�.
performed the preceding month. Consultant's bills shall include the name
of the person who performed the work, a brief description of the services
performed and /or the specific task in the Scope of Services to which it
relates, the date the services were performed, the number of hours spent
on all work billed on an hourly basis, and a description of any
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reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and/or other costs and/or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
S. PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated JOYCE PERRY to
be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project-without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key persoririel.
Consultant, at the sole dtsbretion of City, shall remove from the Project amts
personnel assigned to the performance of services upon written request of City.
-.- Consultant warrants that3t -Wll- continuously furnish the necessary pyre ! +°--
complete the Project on a timely basis as contemplated by this Agreement.
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6. ADMINISTRATION
This Agreement will be administered by Public Works Department. Public
Works Director Steve Badum, or his designee shall be the Project
Administrator and shall have the authority to act for City under this Agreement.
The Project Administrator or his authorized representative shall represent City in
all matters pertaining to the services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City. By
delivery of completed work, Consultant certifies that the work conforms to
- the requirements of this Agreement and all applicable federal, state and
local laws and the professional standard of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
expense, all licenses, permits, qualifications, insurance and approvals of
iatsoever nature that is legally required of- GGnsultEH* to practice its
.profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
_ reason of strikes, lockouts, accidents,. or acts of God, or the failure of City
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to furnish timely information or to approve or disapprove Consultant's
work promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties') from and
against any and all claims (including, without limitation, claims for bodily injury,
death or damage to property), demands, obligations, damages, actions, causes
of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorney's fees, disbursements and court
costs) of every kind and nature whatsoever (individually, a Claim; collectively,
"Claims "), which may arise from or in any manner relate (directly or indirectly) to
any breach of the terms and conditions of this Agreement, any work performed
or services provided under this Agreement including, without limitation, defects in
workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent and /or willful acts, errors and /or omissions of
Consultant, its principals, officers, agents, employees, vendors, suppliers,
consultants, subcontractors, anyone employed directly or indirectly by any of
them or for whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
---conducting the work are under the - control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
the terms of this Agreement. Anything-in this AQf ement that may appear to give
City the right to direct Consultant as to the details of the performance or to
xercise a measure of control over Consultant1hall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
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11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and/or his/her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement of
work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement, policies of insurance of the type and amounts described below and
in a form satisfactory to City.
A. Proof of Insurance. Consultant shall provide certificates of insurance to City
as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this contract. City reserves
the right to require complete, certified copies of all required insurance
policies, at anytime.
Consultant shall procure and maintain for the duration of- the contract
insurance against claims for injuries to persons or damages to property,
which',nay arise from or in connection with the pentlfnance of the work
hereunder by Consultant, his agents, representatives, employees or
__. subconsultants. The cost of such insurance shall beJUMboe d in Consultant's
bid.
B. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned
policyholders' Rating of A- (or higher) and Financial Size Category Class VII
(or larger) in accordance with the latest edition of Best's Key Rating Guide,
unless otherwise approved by the City's Risk Manager.
C. Coverage Requirements.
Workers' Compensation Coverage. Consultant shall maintain Workers'
Compensation Insurance (Statutory Limits) and Employer's Liability
Insurance (with limits of at least $1,000,000) for Consultant's employees
in accordance with the laws of the State of California, Section 3700 of the
Labor Code In addition, Consultant shall require each subconsultant to
similarly maintain Workers' Compensation Insurance and Employer's
Liability Insurance in accordance with the laws of the State of California,
Section 3700 for all of the subconsultant's employees.
Any notice of cancellation or non - renewal of all Workers' Compensation
policies must be received by City at least thirty (30) calendar days (10
calendar days written notice of non - payment of premium) prior to such
change.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its officers, agents,
employees and volunteers.
ii. General Liability Coverage. Consultant shall maintain commercial general
liability insurance in an amount not less than $1,000,000 per occurrence
for bodily injury, personal injury, and property damage, including without
limitation, blanket contractual liability.
iii. Automobile Liability Coverage. Consultant shall maintain automobile
insurance covering bodily injury and property damage for all activities of
the Consultant arising out of or in connection with work to be performed
under this Agreement, including coverage for any owned, hired, non -
owned or rented vehicles, in an amount not less than $1,000,000
combined single limit for each accident.
iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall
maintain professional liability insurance that covers the services to be
performed in connection with this Agreement, in the minimum amount of
$1,000,OOO -unit -per claim and in the aggregate.
^ Other insurance r- rovisions or Requirements
The policies alto contain, or be endorsed to contain, th blowing
provisions:
Waiver of gattvn All insurance- coverage maintained piocurett-
pursuant to „S agreement shall be endorsed to waive .,irogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
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recovery against City, and shall require similar written express waivers
and insurance clauses from each of its subConsultants.
ii. Enforcement of Contract Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of the City to inform
Consultant of non - compliance with any requirement imposes no additional
obligations on the City nor does it waive any rights hereunder.
iii. Requirements not Limiting. Requirements of specific coverage features
or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive,
or to the exclusion of other coverage, or a waiver of any type.
iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent
or broker and insurers to provide to City with 30 days notice of
cancellation (except for nonpayment for which 10 days notice is required)
or nonrenewal of coverage for each required coverage.
E. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suts instituted that arise out of or result from Consultant's
performance under this Agreement.
F. Additional Insurance. Consultant shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of_..
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or-joint-venture or syndicate or cotenancy;--- -
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the vetft power, or twenty-five percent (25 %) or more.
of the assets of the corporation, partnership or joint- venture.
16. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Consultant. Assignments of any or all rights, duties or obligations of the
Consultant under this Agreement will be permitted only with the express written
0
consent of City. Consultant shall not subcontract any portion of the work to be
performed under this Agreement without the prior written authorization of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived against Consultant and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
-- specifications provided under this Agreement.
20. RECORDS
Consultant shall keep records and involAW in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
-- . -- -- accurate. records with respect to the costw4acunvd. under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer-period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
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work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement.
Consultant shall not discontinue work as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his /her designee
with respect to such disputed sums. Consultant shall be entitled to receive
interest on any withheld sums at the rate of return that City earned on its
investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and /or
restoration expense shall be bome by Consultant. Nothing in this paragraph is
intended to limit City's rights under the law or any other sections of this
Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this- Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If Object to the Act, Consultant shall conform to a' °`requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate
tenzilas twon of this Agreement by City. ConsultaaLmhall. ndemnify -and .hold
harmless City for any and all claims for damages resulting from Consultant's
vidlWn of this Section.
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25.
26.
NOTICES
All notices, demands, requests or approvals to be given under
Agreement shall be given in writing, and conclusively shall be
when delivered personally, or on the third business day after th e
in the United States mail, postage prepaid, first -class mail
hereinafter provided. All notices, demands, requests or
Consultant to City shall be addressed to City at:
Attn: Steve Badum
Public Works Department
P.O. Box 1768
Newport Beach, CA 92658
Phone: 949 -644 -3311
Fax: 949 - 261 -3318
the terms of this
deemed served
deposit thereof
addressed as
approvals from
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Joyce Perry
Payomkawichum Kaamalam
4955 Paseo Segovia
Irvine, CA 92603
Phone: 949 - 293 -8522
Fax: 949 - 509 -1061
TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, and thereafter diligently take steps to cure
_the default, the non - defaulting party may terminate the Agreement forthwith by
giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this -Agreement at any time by giving
seven (7) calendar days prior written notice to Consultant. In the event of
termination under this Section, City shat -12ay Consultant for services
satisfactorily performed and costs incurred up to the effective date of termination
-for which Consultant has not been previously 'paid. On the effective date of
termination, Consultant shall deliver to City all reports, Documents and other
information developed or accumulated in the performance of this Agreement,
whether in draft or final form.
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27. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
28. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
29. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
30. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
31. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
32. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
.11 33. SEVERABILITY --
If any term or portion of tli Agreement is held to be invalid, illegal, or othefVMe
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
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34. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
35. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
BAIR)
onie Mulvihill, C
Acting City Attorney
ATTEST:
By:
Leilani I. Brown,
City Clerk
Attachments
,�
NIZPORNA
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
D ' A. Kiff,
City Manager
PAYOMKAWICHUM KAAMALAM:
B -
J yc ferry,
resid nt
B'
David Belardes,
Vice President
Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
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The Westerners —First People of Earth Mother
RECEIVED BY
March 18, 2010
Jaime Murillo, Planning Department
City of Newport Beach
3300 Newport Beach Blvd
Newport Beach, Ca 92663
PLANNING DEPARTMENT
MAR 2 9 2010
CITY OF NEWPORT BEACH
Subject: Proposal for Native American Monitoring for Newport Beach City Hall
and Park Development Plan, Orange County, California
Dear Mr. Murillo,
Payomkawichum Kaamalam (PKK) is pleased to submit this time - and - materials Scope of
Work to provide Native American monitoring for the Newport Beach City Hall and Park
Development Plan Project. We will complete the project as described in the attached scope of
work. This scope of work is based on the assumption that one Native American monitor will
be required during grading and trenching of previously undisturbed land areas. PKK
monitoring President will attend up to 3 hours of meetings as requested by the Project
Manager. Additional meetings will be attended at the request of the owner; in this event, a
budget adjustment may be necessary. At the completion of our work a letter will be
developed confirming that monitoring occurred and the affiliated Group is satisfied with the
level of effort.
It has been demonstrated that the project area is adjacent to sensitive archaeological
resources. PKK feels that the described level of monitoring will allow for the assessment of
potential resources and periodic evaluation of this potential.
If unmapped /untreated resources are encountered during ground- disturbing activities,
monitoring levels will need to be assessed, which may require a budget adjustment.
PKK estimates that the tasks can be completed for $31,700.00. The total contract amount of
$31,700.00 will not be exceeded without your prior authorization. If you are in agreement
with the terms of this contract, please sign below and return a copy to PKK.
PKK is prepared to commence work on this project upon your authorization. If you have any
questions or comments, please contact me at (949) 293 -8522. Thank you for the opportunity
and look forwa' q to working with you on this project.
Oho'van
Respect,
95�£ 5�egovia, Iry a CA 93603 949.293.8583 949 - 509.1061 fax
-mail: kaanWam ®cox.net
Pagomkawiehum Kaamalalm
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The Westerners—First People of Earth Mother
SCOPE OF WORK
Task 1: Monitoring
The PKK President will attend the pregrade /preconstruction meetings and other meetings as
requested by the owner (up to 3 hours). Further meeting requests may require gn fid)ustment
to the budget
PKK will provide a Native American monitor during ground - disturbing activities (when
excavation schedules warrant). If prehistoric resources are encountered during ground-
disturbing activities, monitoring may need to be elevated, higher monitoring levels will require
a budget adjustment
Task 2: Monitoring reports and Letter of Completion
PKK will prepare daily monitoring reports of findings surrounding the archaeology. These
reports will be submitted with each invoice. At the completion of our work a letter will be
developed confirming that monitoring occurred and the affiliated Group is satisfied with the level
oeffor
4955 Paseo Segovia, Irvine, CA 92603 • 949 - 893.8582 • 949.509 -1061 fax
e -mail: kaamalarn ®cornet
m
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BUDGET
The following Budget estimate summarizes each task If resources are encountered a budget
adjustment will be required to address additional tasks or changes in schedule to increase
estimated monitoring. This proposal is based on negative findings.
iget tsttmate
Mileage (.50 /per mile /60 days -$300) $300.00
Task 1: Monitoring 60 days or 480 Regular Time @ $65/ hr $31,200
Task 2: Daily Monitoring Reports and Letter of Completion (Fixed $200.00
Fee)
TOTAL ESTIMATED MONITORING COSTS $31,700
THE ABOVE STATED TERMS ARE HEREBY ACCEPTED AND AUTHORIZED
PKK
11
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PRODUCER
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Endorsement. No. 3
ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION
IT IS AGREED THAT THE FOLLOWING ARE ADDED AS ADDITIONAL INSURED (S) HEREUNDER BUT
ONLY AS RESPECTS LIABILITY ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, AND
FURTHER PROVIDED THAT THE INCLUSION OF SUCH ADDITIONAL INSURED SHALL NOT SERVE
TO INCREASE THE COMPANY'S LIMIT OF LIABILITY AS SPECIFIED IN THE DECLARATIONS OF THE
POLICY.
SCHEDULE
NAMED INSURED: PAYOMKAWICHUM KAAMALAM AS RESPECTS TO A CONTRACT WITH THE CITY OF NEWPORT BEACH
4955 PASEO SEGOVIA
IRVINE, CA 92603
NAME OF PERSON OR
ORGANIZATION /CERTIFICATE HOLDER: CITY OF NEWPORT BEACH
3300 NEWPORT BOULEVARD
NEWPORT BEACH, CA 92658
THE CITY OF NEWPORT BEACH, ITS ELECTED OR APPOINTED OFFICERS, OFFICIALS. EMPLOYEES, AGENTS AND
VOLUNTEERS SHALL BE NAMED AS ADDITIONAL INSUREDS FOR GENERAL LIABILITY AND NON -OWNED AUTO LIABILITY
ONLY, AS RESPECTS TO LIABILITY ARISING OUT OF WORK PERFORMED BY OR ON BEHALF OF THE CONSULTANT.
THIS INSURANCE IS PRIMARY AND NOT AFFECTED BY ANY OTHER INSURANCE CARRIED BY SUCH ADDITIONAL
INSURED WHETHER PRIMARY, EXCESS, CONTINGENT, OR ON ANY OTHER BASIS.
PER CERTIFICATES OF INSURANCE APPROVED BY THE COMPANY, AND ON FILE WITH THE COMPANY
EFFECTIVE DATE OF THIS ENDORSEMENT: 03/24/10
ATTACHED TO AND FORMING APART OF POLICY NO.: C010407/002
All other terms and conditions remain unchanged.
Insurer: ALLIED WORLD NATIONAL ASSURANCE CO.
Special Liability Insurance Program (SLIP)
Effective September 29, 2009 to September 29, 2010
DATE ISSUED: 5/3/10
Oyler, Shauna
From:
Sheryl Fitzgerald [ SFitzgerald @alliantinsurance.com]
Sent:
Monday, May 03, 2010 12:31 PM
To:
Oyler, Shauna
Cc:
John Peterson
Subject:
Payomkawichum Kaamalam - Insurance Requirements
Hi Shauna,
Per our conversation, Payomkawichum Kaamalam's policy is on a manuscript form. The wording added to the certificate
is primary and noncontributory coverage - it is only phrased slightly different to fit the policy wording. Since this is already
part of the policy, there is no specific endorsement for this coverage like you would see on a standard commercial policy.
Please let me know if you need anything else.
Thank you,
Sheryl Fitzgerald, AIS, CISR
Alliant Insurance Services, Inc.
Driver Specialty Group
CA License# OC36861
1301 Dove St., Ste. 200
Newport Beach, CA 92660
Phone: (949) 660-8161 ' Fax: (619)699 -0902
sfitz.gerald@alliantinsurance.com
From: Oyler, Shauna [mailto:SOyler @newportbeachca.gov]
Sent: Monday, May 03, 2010 11:45 AM
To: Sheryl Fitzgerald
Subject: Insurance Requirements
I still need the non - contributory wording added per the agreement
requirements. Please see attached.
Thanks
Shauna Lyn Oyler
City of Newport Beach
Public Works Specialist
949 -644 -3311
From: pbwcopier @city.newport- beach.ca.us [ mailto: pbwmpier i
CITY OF NEWPORT BEACH
CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE
I hereby certify that in the performance of the work for which this Agreement is entered
into, t shall not employ any person in any manner so as to become subject to the Workers'
Compensation Laws of the State of California.
Executed on this 24th day of March, 2010, at Newport Beach, California..
Payomkawichum Kaamalam
r
Joyce Perry
President
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach.
Date Received: 04/27/2010 Dept. /Contact Received From: Shauna Oyler
Date Completed: 04/27/2010 Sent to: Shauna Oyler By: Michelle Ross
Company /Person required to have certificate: Payomkawichum Kaamalam
Service(s) Provided:
I. GENERAL LIABILITY
A. INSURANCE COMPANY
B. EFFECTIVE DATES:
C.
D.
E.
F.
I
1
Allied World National Assurance Co.
03/24/2010 to 09/2912010
AM BEST RATING (A -: VII or greater): "A "(XV)
ADMITTED Company (Must be California Admitted):
Is Company admitted in California? ❑ Yes ® No
LIMITS (Must be $1M or greater): What is limit provided? $1,000,000
PRODUCTS AND COMPLETED OPERATIONS (Must
include): Is it included? (completed Operations status does
not apply to Waste Haulers) ® Yes
ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included? ® Yes
PRIMARY & NON - CONTRIBUTORY WORDING (Must be
included): Is it included? ❑ Yes
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence" wording? ❑ Yes
NOTIFICATION OF CANCELLATION: Although there is a provision that requires
notification of cancellation by certified mail; per Lauren Farley, the City will accept the
endeavor wording.
■
II. AUTOMOBILE LIABILITY
A. INSURANCE COMPANY: Allied World National Assurance Co.
B. EFFECTIVE DATES: 03/24/2010 to 09/29/2010
C. AM BEST RATING (A-: VII or greater) "A "(XV)
D. ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California? ❑ Yes ® No
E. LIMITS (Must be $1M min. BI & PD and $500,000 UM, $2M min
for Waste Haulers):
What is limits provided? $1,000,000
F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste
Haulers only): n/a
Is it included? n/a ❑ Yes ❑ No
G. NOTIFICATION OF CANCELLATION: Although there is a provision that requires
notification of cancellation by certified mail; per Lauren Farley, the City will accept the
endeavor wording.
III. WORKERS' COMPENSATION
A. INSURANCE COMPANY: Exempt
B. EFFECTIVE DATES:
C. AM BEST RATING (A-: VII or greater):
D. LIMITS: Statutory
E. WAIVER OF SUBROGATION (To include): Is it included? ❑ Yes ❑ No
HAVE ALL ABOVE REQUIREMENTS BEEN MET? ❑ Yes ® No
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
GL) Cartier is non-admitted; Primary and Non - Contributory Endorsement is missing
Approved:
Agent of Brown & Brown Date
Broker of record for the City of Newport Beach
❑ Requires approval /exception /waiver by Risk Management B &B initials
Comments:
Approved:
Risk Management
Date