Loading...
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 2 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. 3 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 9 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. 5 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 7 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 I41 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. 10 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. 11 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. iE 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 13 m kL O Pagomkawicham Kaamalam mvmoomo<>mogKXXX <> momoomoomomoom <><>momoomoomomo <>m<><> <D < >m <>< ><><>< >m<><>< >< >m < > <> <>< >4>< >< ><D <>< >m < ><>< > < ><> <> <> 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 m0mc >0000,T, 000<><><> 0000000000000,V00 43<>m<>000<>0<>m <><>a><><> m< > ®< ><>m<> <>m < >m< ><><E>< > <> <> <><>< ><>m < ><>m<>m<><> ® < > <> 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 �C 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 ( jluth r zed Signature f j Title C ry Date CLIENT: Authorized Signature Title Date MAI ME WON 4123110 PRODUCER • TI HIS Is F RTIF IC ATE IS I S allEV AS A MATTE R OF INFORMATION ON LY AN D Alliant n5UFSIICi'SeITVICeS„Inc. CONFERS NO RIGHTS UPON THE BERT Plk: ATE. HOLDER. TH IS.r ERTIFICATE DOES 1301 Dove'Et." Suite z00 NOT. AM END, EHTEKD OR ALTER THE COVERAGE A OOR OED BY THE POLICIES Newport BesCI-L, CA 926130 BELOW CO MPANI E S AFFORD1 N G COVERAGE (800] 821-9283 Ext- B161 • Fox-(0413? 756;271.3 INSURED' EIPsC.v- JAEIIJZ' INWRAKE UETTE - R A ALLIED WCRLD NATIOMAL ASSU RA NCE CO; NA IC'V; 10490 COMPANY LET-ER PAYQKSKAVO ICHUM.KAAMAl-AM AS RESPECTS 'f o. 6 CONTRACT WITH THE -c - rry OF IN EWP0 . RT BE . ACH G.'r%r' c .4955 PAStp SEC OVIA IRVINE. CA COMPANY LETTER D cQIkPANY I-EffoR E THIS IS TO CERTIFY THAT THE POLICIES OF 1NWFANCELISTEO BELOW HAVE BEEN ISSUED TDTHE INSIJFED RAMED ABOVE FOR THE POLICY PERIOD IMPKAT613, NOTATIN ISTMDING ANY REQUIREMENT, TERNI CONDITION OF MY CONTRA T-011 OTHER DOCUMENT WITH 1395FZCT 10 WHICH THIS CERTIFICATE MAN BE ISS:UW OR MAY Pt RIMH. WE BY THE POLICIES DESCRIBED HEREIN IS SMJF.Cl-lb ALL THE TERMS, EXCLUSION AND CONDITIONS OF SUCH POUCIEs- LIMITS SHOWN IAAy HAVE BEEN R EPUCEP By PAID CLAIMS. IT N INSURANCE POLICY NumqEF POLICY EFFECTIVE DATE ImUDDIYYJ FOLLY �11TT K DO KLIJUS F A GENERW UA91111Y C1)1040710;)2 (3{74110 ogeomp GENERAL AGGREGATE I —mmp _r'ODU NA' COMMERCIAL GENE U ABIUTY' X. . '� ANG—C % $l 006.000 PQRSQr•I!L-&-AOV. hNJURY 000.000• rs�.;---Tcwms [—x] OCCUR EACHC CCUR�,�E . 000, PROT. X 6L Dvd: 31,000 FIRE f?.Nkv Gliimxuxe rlmt . . WELL EY.PRNSE;fm WA A AJT?MO9ILElIASII-TY C,OiU407!,�02 03124710 01X 2 710 SINGi.& stoodrGoo ANY. IJTG Dwi AlLOWVEO.AUTOS SO M L Y RJUR Y SCHEOIJUEOAUTOS F= HIRED MIT& X �O Ca Y , R mum OWNEnAhT03 qr �Aw) PROPERTY DAMAGE GARAGE LIABILITY' AUTO DED! P.ACHOExIRMWE UMBRECI-AFORM AGGREGATE• OTHER THAN UMBRI=ULA M-Ml V • STATUTO RY UWTS ACCIDENT WoRkER's oomPEI pryp DISEASEFICUCYLIPAT A HON-PRCFIT DIRECT,pR5 APED OFF Q0104071002 •0 09729110 j$V)CG,00O PER CmCGURRENGE AND ANNUAL AQGREGATE- DF. CWPTION OF 1 EWU 'POLICY FORM DOES LA�T CONTAW I GENER< WBILITY I^,QR!E.ATE THE CITY OF NEWPORT BEACH, ITS ELECTED CR APPOINTED OFFICERS, OF Fi Cmi.S, EMPLOYE. AGENTS AND. VcuuI SiiAILL,BE NAMED At ALI)M&4AL MU REDS FOR GEfJ =RAL LIABILITY FIND NON. OWNED AUTO LIA81LITY ONLY' THIS INSURANCE SePRIVARY AND NOT-AFr FCTED BY ANY OTHER INSURANCE CARRIED BY SUCH ADDITIONAIL INSURED WHEfHERPRIPAARY,,EEXrFZ.5,C,ONTieNr":CR. viXNY.%OTK.E.RBRSle.,"'AIVE!i&SUOR'()C,LRATICN TH= 'CONIPANY'WI�L WAIVE 11'5 RIC HT,%OF SiU BROGATION AGAINST ANY PERSON OR ORGANIZATION FOR AHOM THE 'I NSIJ4E0- 15 Pi;RFOIR.MING'CF-=RATIQN5 BUT.(INLYir i. THAT PEUdNC)RqAGAnZALrIoN REQUIRES IN Tlle WRIT-FEN A�' ; REEMENT WITH TH E 4CIPATiNG NAMED INS UREO- THAT T HE -EIAR MWATING N,',M F. D INSUAEO'WAIVE: ITS RIGiHT Or RECdVI! RWAGAINST THAT . PERSON OR PRGANIZATkON AND; 2.THEeWRITT--- N AGREE MEN T WAS MACE PRIOR 70 THE SATE OF THE -%OCCVRRENCF'- SUBJECT TO POLICY TE:MS .-CoNbIT:IOH%q%AND.EXCLUSIONS. M_2 -A -fflQADE _S_TJF,I.q , T;E% c S HO ULD ANY OF THE ABOVE 1) ESCR B ED ROL IC IESeBE CANCEL ED BEFORE THE E XPI RATIO N DATE THEREOF, TH E I S SUING COLA PANY WrILL EN 13'EAVOR TO MAIL RATIO N DATE CITY.bi: NEWPORT BE�ACH YS WRITTEN 3300 NF-A-IF BOULEVARD. M DAYS WRITTEN NOTICE TO T HE CERTIFICATE HOLDER NAMED TO THE LEFT, NE-APORT BEACH; CA 92658 E SUCH NOTICE SHALL IMPOSE NO 6EILICATIO N OR LIABILITY 04. BUT FAILURE TO MAIL I13V OF ANY .UPOK THE cbm PANY, ITS A43 EN ?3 OR REPRESENTATIVESi.e XCET7 W DAYS 3`0 ' N04-PAI.M Wr AUTHORIZE "EP HY 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