HomeMy WebLinkAboutContracts & Agreements_110A-2016 6
AGREEMENT TO PERFORM TRIBAL MONITORING
This agreement for the provision of services associated with the Gabrielefto Band of
Mission Indians — Kizh Nation ("Agreement") is made and entered in this 2nd day of June, 2016
("Effective Date"), by and between the City of Redlands, a municipal corporation ("City)" and
the Gabrieleno Band of Mission Indians — Kizh Nation ("Consultant"). City and Consultant are
sometimes individually referred to herein as a "Party" and, together, as the "Parties." In
consideration of the mutual promises contained herein, City and Consultant agree as follows:
ARTICLE I —ENGAGEMENT OF CONSULTANT
1.1 City hereby engages Consultant to provide Tribal monitoring services for City's Colton
Avenue & 6"' Street Pipeline Project(the "Services").
1.2 The Services shall be performed by Consultant in a professional manner, and Consultant
represents that it has the skill and the professional expertise necessary to provide the
Services to City at a level of competency presently maintained by other practicing
professional consultants in the industry providing like and similar types of Services.
ARTICLE 2—SERVICES OF CONSULTANT
2.1 The Services that Consultant shall perform are more particularly described in Exhibit
"A," entitled "Scope of Services," which is attached hereto and incorporated herein by
reference.
2.2 Consultant shall comply with applicable federal, state and local laws and regulations in
the performance of this Agreement including, but not limited to State prevailing wage
laws.
ARTICLE 3 —RESPONSIBILITIES OF CITY
3.1 City shall make available to Consultant information in its possession that may assist
Consultant in performing the Services.
3.2 City designates Chris Diggs, Municipal Utilities and Engineering Director, as City's
representative with respect to performance of the Services, and such person shall have the
authority to transmit instructions, receive information, interpret and define City's policies
and decisions with respect to performance of the Services.
ARTICLE 4—PERFORMANCE OF SERVICES
4.1 Consultant shall perform and complete the Services in a prompt and diligent manner in
accordance with the approved construction schedule for City's Colton Avenue & Wh
Street Pipeline Project.
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4.2 If Consultant's Services include deliverable electronic visual presentation materials, such
materials shall be delivered in a form, and made available to the City, consistent with
City Council adopted policy for the same. It shall be the obligation of Consultant to
obtain a copy of such policy from City Staff.
ARTICLE 5 —PAYMENTS TO CONSULTANT
5.1 The total compensation for Consultant's performance of the Services shall not exceed the
amount of twenty thousand ($20,000). City shall pay Consultant on a time and materials
basis up to the not to exceed amount, in accordance with Exhibit "B" entitled "Fee
Schedule."Exhibit "B" is attached hereto and incorporated herein by this reference.
5.2 Consultant shall submit monthly invoices to City describing the Services performed
during the preceding month. Consultant's invoices shall include a brief description of the
Services performed,the dates the Services were performed, the number of hours spent and
by whom, and a description of reimbursable expenses related to the project. City shall pay
Consultant no later than thirty (30) days after receipt and approval by City of Consultant's
invoice.
5.3 Any notice or other communication required, or which may be given, pursuant to this
Agreement, shall be in writing. Any such notice shall be deemed delivered (i) on the date
of delivery in person; (ii) five (5) days after deposit in first class registered mail, with
return receipt requested; (iii) on the actual delivery date if deposited with an overnight
courier; or (iv) on the date sent by facsimile, if confirmed with a copy sent
contemporaneously by first class, certified, registered or express mail; in each case
properly posted and fully prepaid to the appropriate address set forth below, or such other
address as a Party may provide by notice in accordance with this section:
City Consultant
Chris Diggs, Director Andrew Salas
MUED Chairman
City of Redlands Gabrieleno Band of Mission Indians
35 Cajon Street, Suite 15A P.O. Box 393
PO. Box 3005 (mailing) Covina, CA 91723
Redlands, CA 92373
ARTICLE 6--INSURANCE AND INDEMNIFICATION
6.1 Insurance required by this Agreement shall be maintained by Consultant for the duration
of its performance of the Services. Consultant shall not perform any Services unless and
until the required insurance listed below is obtained by Consultant. Consultant shall
provide City with certificates of insurance and endorsements evidencing such insurance
prior to commencement of the Services. Insurance policies shall include a provision
prohibiting cancellation or modification of the policy except upon thirty (30) days prior
written notice to City.
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6.2 Consultant shall secure and maintain comprehensive general liability insurance with
carriers acceptable to City. Minimum coverage of One Million Dollars ($1,000,000) per
occurrence and Two Million Dollars ($2,000,000) aggregate for public liability, property
damage and personal injury is required. City shall be named as an additional insured and
such insurance shall be primary and non-contributing to any insurance or self-insurance
maintained by City.
6.3 Consultant shall defend, indemnify and hold harmless City and its elected officials,
employees and agents from and against any and all claims, losses or liability, including
attorneys' fees, arising from injury or death to persons or damage to property occasioned
by any negligent act or omission by, or the willful misconduct of, Consultant, or its
officers, employees and agents in performing the Services.
ARTICLE 7—CONFLICTS OF INTEREST
7.1 Consultant covenants and represents that it does not have any investment or interest in
any real property that may be the subject of this Agreement or any other source of
income, interest in real property or investment that would be affected in any manner or
degree by the performance of Consultant's Services. Consultant further covenants and
represents that in the performance of its duties hereunder, no person having any such
interest shall perform any Services under this Agreement.
7.2 Consultant agrees it is not a designated employee within the meaning of the Political
Reform Act because Consultant:
A. Does not make a governmental decision whether to:
(i) approve a rate,rule or regulation, or adopt or enforce a City law;
(ii) issue, deny, suspend or revoke any City permit, license, application,
certification, approval, order or similar authorization or entitlement;
(iii) authorize the City to enter into, modify or renew a contract;
(iv) grant City approval to a contract that requires City approval and to which
City is a party, or to the specifications for such a contract;
(v) grant City approval to a plan, design, report, study or similar itern;
(vi) adopt or grant City approval of, policies, standards or guidelines for City
or for any subdivision thereof.
B. Does not serve in a staff capacity with City and in that capacity, participate in
making a governmental decision or otherwise perform the same or substantially
the same duties for City that would otherwise be performed by an individual
holding a position specified in City's Conflict of Interest Code under Government
Code section 87302.
7.3 In the event City officially determines that Consultant must disclose its financial
interests, Consultant shall complete and file a Fair Political Practices Commission Form
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700, Statement of Economic Interests, with the City Clerk's office pursuant to the written
instructions provided by the City Clerk.
ARTICLE 8—GENERAL CONSIDERATIONS
8.1 In the event any action is commenced to enforce or interpret any of the terms or
conditions of this Agreement the prevailing Party shall, in addition to any costs and other
relief, be entitled to the recovery of its reasonable attorneys' fees, including fees for the
use of in-house counsel by a Party.
8.2 Consultant shall not assign any of the Services, except with the prior written approval of
City and in strict compliance with the terms and conditions of this Agreement.
8.3 Records, drawings, designs, cost estimates, electronic data files, databases and any other
documents developed by Consultant in connection with its performance of the Services,
and any copyright interest in such documents, shall become the property of City and shall
be delivered to City upon completion of the Services, or upon the request of City. Any
reuse of such documents, and any use of incomplete documents, shall be at City's sole
risk.
8.4 Consultant is for all purposes under this Agreement an independent contractor and shall
perform the Services as an independent contractor. Neither City nor its agents shall have
control over the conduct of Consultant or Consultant's employees, except as herein set
forth. Consultant shall supply all necessary tools and instrumentalities required to
perform the Services. Assigned personnel employed by Consultant are for its account
only, and in no event shall Consultant or personnel retained by it be deemed to have been
employed by City or engaged by City for the account of, or on behalf of City. Consultant
shall have no authority, express or implied, to act on behalf of City in any capacity
whatsoever as an agent, nor shall Consultant have any authority, express or implied, to
bind City to any obligation.
8.5 Unless earlier terminated as provided for below, this Agreement shall terminate upon
completion and acceptance of the Services by City. This Agreement may be terminated
by City, in its sole discretion, by providing not less than five (5) days prior written notice
to Consultant of City's intent to terminate. If this Agreement is terminated by City, an
adjustment to Consultant's compensation shall be made, but (1) no amount shall be
allowed for anticipated profit or unperformed Services, and (2) any payment due
Consultant at the time of termination may be adjusted to the extent of any additional costs
to City occasioned by any default by Consultant. Upon receipt of a termination notice,
Consultant shall immediately discontinue its provision of the Services and, within five (5)
days of the date of the termination notice, deliver or otherwise make available to City,
copies (in both hard copy and electronic form, where applicable) of project related data,
design calculations, drawings, specifications, reports, estimates, summaries and such
other information and materials as may have been accumulated by Consultant in
performing the Services. Consultant shall be compensated on a pro-rata basis for Services
completed up to the date of termination.
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8.6 Consultant shall maintain books, ledgers, invoices, accounts and other records and
documents evidencing costs and expenses related to the Services for a period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant pursuant to this Agreement. Such books shall be available at reasonable times
for examination by City at the office of Consultant.
8.7 This Agreement, including the Exhibits incorporated herein by reference, represents the
entire agreement and understanding between the Parties as to the matters contained
herein, and any prior negotiations, written proposals or verbal agreements, relating to such
matters are superseded by this Agreement. Except as otherwise provided for herein, any
amendment to this Agreement shall be in, writing, approved by City and signed by City
and Consultant.
8.8 This Agreement shall be governed by and Construed in accordance with the laws of the
State of California.
8.9 If one: or more of the sentences, clauses, paragraphs or sections contained in this
Agreement is declared invalid, void or unenforceable by a court of competent
jurisdiction, the same shall be deemed severable from the remainder of this Agreement
and shall not affect, impair or invalidate the remaining sentences, clauses, paragraphs or
sections contained herein, unless to do so would deprive a Party of a material benefit of
its bargain under this Agreement.
IN WITNESS WHEREOF, duly authorized representatives of City and Consultant have signed
in confirmation of this Agreement.
CITY OF REDLANDS GABRIELENO BAND OF MISSION
INDIANS _,K-IZ't1"NA--1ON
II
ye
Ern ue Martinez, C anagen re a s, 11 irman, Gabrieleno
c
Band of ission Indians— Kizh Nation
Attest:
SaI rvN ' C .........
mr6tyClerk
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Ban Indittos"Fribal Monitollllg Prolessional Set-vices Agreetnent.doc
EXHIBIT A
SCOPE OF SERVICES
Provide Native American monitoring representing the Gabrieleno Band of Mission Indians —
Kizh Nation for the Colton Avenue & 6th Street Pipeline Project. Observe the distribution main
installation excavation activities for the purposes of identifying Native American Tribal Cultural
Resources. Resources be identified, the protocol outlined in CR-1 or CR-2 of the Mitigation
Monitoring and Reporting Table (whichever is applicable) shall apply, and all tribes that
consulted under AB 52 shall be notified. The City and Consultant agree to reevaluate the need
for monitoring should it become apparent that Tribal Cultural Resources are not present.
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EXHIBIT B
FEE SCHEDULE
POSITION SI Hr.
Archeologist.............................................................................................................$75.00
TribalMonitor..........................................................................................................$55.00
Tribal Monitor Overtime (over 8 hours per day).....................................................$82.50
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