HomeMy WebLinkAboutContract - Kizh Nation Resources ManagementPROFESSIONAL SERVICES AGREEMENT
Non-Design Professionals]
THIS AGREEMENT (the "Agreement") is made as of October 17, 2022 by and
between the City of Diamond Bar, a municipal corporation ("City") and Kizh Nation
Resources Management ("Consultant").
Consultant's Services.1.
Subject to the terms and conditions set forth in this Agreement Consultant shall
provide to the reasonable satisfaction of the City the Tribal Cultural Resources and
Native American Monitoring per AB52 for the Canyon Loop Trail Renovation Project
services set forth in the attached Exhibit "A", which is incorporated herein by this
reference. As a material inducement to the City to enter into this Agreement,
Consultant represents and warrants that it has thoroughly investigated the work and
fully understands the difficulties and restrictions in performing the work. Consultant
represents that it is fully qualified to perform such consulting services by virtue of its
experience and the training, education and expertise of its principals and employees.
Ryan Wright, Parks and Recreation Director herein referred to as the “City’s
Project Manager”, shall be the person to whom the Consultant will report for the
performance of services hereunder. It Is understood that Consultant shall coordinate its
services hereunder with the City’s Project Manager to the extent required by the City’s
Project Manager, and that all performances required hereunder by Consultant shall be
performed to the satisfaction of the City’s Project Manager and the City Manager
Term of Agreement. This Agreement shall take effect October 17, 2022,
and shall continue until October 17, 2023 (Term"), unless earlier terminated pursuant to
the provisions herein.
The City Manager shall have the option to extend this Agreement for one
additional year, subject to the same terms and conditions contained herein, by giving
Consultant written notice of the exercise of this option at least thirty (30) days prior to
the expiration of the initial Term. In the event the City exercises its option to extend the
Term, Consultant's compensation shall be subject to an adjustment upon the effective
date of extension as follows:
Any increase in compensation will be negotiated between the City and the
Consultant, but in no event shall the increase exceed the amount that the
Consumer Price Index ("CPI") for the Los Angeles-Anaheim-RIverside
metropolitan area for the month immediately preceding the Adjustment Date (the
Index Month") as reported by the Bureau of Labor Statistics of the United States
Department of Labor, has Increased over the CPI for the month one year prior to
the Index Month.
2.
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Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the scope of
services set forth in Exhibit "A". Payment will be made only after submission of proper
invoices in the form specified by City at the rate of eight-five dollars $85.00 per hour.
Total payment to Consultant pursuant to this Agreement shall not exceed forty-five
thousand dollars ($45,000) without the prior written consent of the City. The above not
to exceed amount shall include all costs, including, but not limited to, all clerical,
administrative, overhead, telephone, travel and all related expenses.
3.
4.Payment.
As scheduled services are completed, Consultant shall submit to City an
invoice for the services completed, authorized expenses and authorized extra work
actually performed or incurred.
A.
All such invoices shall state the basis for the amount invoiced, including
services completed, the number of hours spent and any extra work performed.
B.
City will pay Consultant the amount invoiced the City will pay Consultant
the amount properly invoiced within 35 days of receipt, but may withhold 30% of any
invoice until all work is completed, which sum shall be paid within 35 days of completion
of the work and receipt of all deliverables.
Payment shall constitute payment in full for all services, authorized costs
and authorized extra work covered by that invoice.
Change Orders. No payment for extra services caused by a change in
the scope or complexity of work, or for any other reason, shall be made unless and until
such extra services and a price therefore have been previously authorized in writing and
approved by the City Manager or his designee as an amendment to this Agreement.
The amendment shall set forth the changes of work, extension of time, if any, and
adjustment of the fee to be paid by City to Consultant.
Priority of Documents. In the event of any inconsistency between the
provisions of this Agreement and any attached exhibits, the provisions of this
Agreement shall control.
C.
D.
5.
6.
Status as Independent Contractor.
Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent, except as
specifically provided herein. Neither City nor any of its agents shall have control over
the conduct of Consultant or any of Consultant's employees, except as set forth in this
Agreement. Consultant shall not, at any time, or in any manner, represent that it or any
of its agents or employees are in any manner employees of City.
7.
A.
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Consultant agrees to pay all required taxes on amounts paid to Consultant
under this Agreement, and to indemnify and hold City harmless from any and all taxes,
assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant and the audit in any way fails to sustain the validity of a wholly independent
contractor relationship between City and Consultant, then Consultant agrees to
reimburse City for all costs, including accounting and attorney's fees, arising out of such
audit and any appeals relating thereto.
B.
Consultant shall fully comply with Workers' Compensation laws regarding
Consultant and Consultant's employees. Consultant further agrees to indemnify and
hold City harmless from any failure of Consultant to comply with applicable Worker's
Compensation laws.
C.
Consultant shall, at Consultant’s sole cost and expense fully secure and
comply with all federal, state and local governmental permit or licensing requirements,
including but not limited to the City of Diamond Bar, South Coast Air Quality
Management District, and California Air Resources Board,
in addition to any other remedies it may have, City shall have the right to
offset against the amount of any fees due to Consultant under this Agreement any
amount due to City from Consultant as a result of Consultant's failure to promptly pay to
City any reimbursement or indemnification required by this Agreement or for any
amount or penalty levied against the City for Consultant’s failure to comply with this
Section.
D.
E.
Standard of Performance. Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions and represents that it and any subcontractors it may engage, possess
any and all licenses which are required to perform the work contemplated by this
Agreement and shall maintain all appropriate licenses during the performance of the
work.
8.
Indemnification.9.
Consultant shall indemnify, defend with counsel approved by City, and hold
harmless City, its officers, officials, employees and volunteers ("Indemnitees") from and
against all liability, loss, damage, expense, cost (including without limitation reasonable
attorneys' fees, expert fees and all other costs and fees of litigation) of every nature
arising out of or in connection with:
1) Any and all claims under Workers’ Compensation Act and other
employee benefit acts with respect to Consultant’s employees or Consultant’s
contractor's employees arising out of Consultant’s work under this Agreement;
and
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2) Any and all claims arising out of Consultant's performance of work
hereunder or its failure to comply with any of its obligations contained in this
Agreement, regardless of City’s passive negligence, but excepting such loss or
damage which is caused by the sole active negligence or willful misconduct of
the City. Should City in its sole discretion find Consultant’s legal counsel
unacceptable, then Consultant shall reimburse the City its costs of defense,
including without limitation reasonable attorneys' fees, expert fees and all other
costs and fees of litigation. The Consultant shall promptly pay any final judgment
rendered against the Indemnitees. It is expressly understood and agreed that
the foregoing provisions are intended to be as broad and inclusive as is permitted
by the law of the State of California and will survive termination of this
Agreement. Except for the Indemnitees, this Agreement shall not be construed
to extend to any third party indemnification rights of any kind.
3) The Consultant's obligations to indemnify, defend and hold harmless
the City shall survive termination of this Agreement.
10.Insurance.
Consultant shall at all times during the term of this Agreement carry,
maintain, and keep in full force and effect, with an insurance company authorized to do
business In the State of California and approved by the City the following insurance:
A.
1) a policy or policies of broad-form comprehensive general liability
insurance written on an occurrence basis with minimum limits of $1,000,000.00
combined single limit coverage against any injury, death, loss or damage as a
result of wrongful or negligent acts by Consultant, its officers, employees, agents,
and independent contractors in performance of services under this Agreement;
2) property damage insurance with a minimum limit of $500,000.00 per
occurrence:
3) automotive liability insurance written on an occurrence basis covering
all owned, non-owned and hired automobiles, with minimum combined single
limits coverage of $1.000,000.00; and
4) Worker's Compensation insurance when required by law, with a
minimum limit of $500,000.00 or the amount required by law, whichever is
greater.
The City, its officers, employees, agents, and volunteers shall be named
as additional insureds on the policies as to comprehensive general liability, property
damage, and automotive liability. The policies as to comprehensive general liability,
property damage, and automobile liability shall provide that they are primary, and that
any insurance maintained by the City shall be excess insurance only.
B.
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All insurance policies shall provide that the insurance coverage shall not
be non-renewed, canceled, reduced, or otherwise modified (except through the addition
of additional insureds to the policy) by the insurance carrier without the insurance carrier
giving City at least ten (10) days prior written notice thereof. Consultant agrees that it
will not cancel, reduce or otherwise modify the insurance coverage and in the event of
any of the same by the insurer to immediately notify the City.
C.
All policies of insurance shall cover the obligations of Consultant pursuant
to the terms of this Agreement and shall be issued by an insurance company which is
authorized to do business in the State of California or which is approved in writing by
the City; and shall be placed have a current A.M. Best's rating of no less than A-, VII.
D.
E. Consultant shall submit to City (1) insurance certificates indicating
compliance with the minimum insurance requirements above, and (2) insurance policy
endorsements or a copy of the insurance policy evidencing the additional insured
requirements in this Agreement, in a form acceptable to the City.
F. Self-Insured Retention/Deductibles. All policies required by this
Agreement shall allow City, as additional insured, to satisfy the self-insured retention
SIR”) and/or deductible of the policy in lieu of the Consultant (as the named insured)
should Consultant fail to pay the SIR or deductible requirements. The amount of the
SIR or deductible shall be subject to the approval of the City. Consultant understands
and agrees that satisfaction of this requirement is an express condition precedent to the
effectiveness of this Agreement. Failure by Consultant as primary insured to pay its SIR
or deductible constitutes a material breach of this Agreement. Should City pay the SIR
or deductible on Consultant’s due to such failure in order to secure defense and
indemnification as an additional insured under the policy, City may include such
amounts as damages in any action against Consultant for breach of this Agreement in
addition to any other damages incurred by City due to the breach.
G. Subrogation. With respect to any Workers' Compensation Insurance or
Employer's Liability Insurance, the insurer shall waive all rights of subrogation and
contribution it may have against the Indemnitees.
H. Failure to Maintain Insurance. If Consultant fails to keep the insurance
required under this Agreement in full force and effect. City may take out the necessary
insurance and any premiums paid, plus 10% administrative overhead, shall be paid by
Consultant, which amounts may be deducted from any payments due Consultant.
I. Consultant shall include all subcontractors, if any, as insureds under its
policies or shall furnish separate certificates and endorsements for each subcontractor
to the City for review and approval. All insurance for subcontractors shall be subject to
all of the requirements stated herein.
11. Confidentiality. Consultant in the course of its duties may have access
to confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
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received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
Ownership of Materials.
Agreement, all materials provided by Consultant in the performance of this Agreement
shall be and remain the property of City without restriction or limitation upon its use or
dissemination by City. Consultant may, however, make and retain such copies of said
documents and materials as Consultant may desire.
12.Except as specifically provided in this
Maintenance and Inspection of Records. In accordance with generally
accepted accounting principles. Consultant and its subcontractors shall maintain
reasonably full and complete books, documents, papers, accounting records, and other
information (collectively, the "records”) pertaining to the costs of and completion of
services performed under this Agreement. The City and any of their authorized
representatives shall have access to and the right to audit and reproduce any of
Consultant's records regarding the services provided under this Agreement. Consultant
shall maintain all such records for a period of at least three (3) years after termination or
completion of this Agreement. Consultant agrees to make available all such records for
inspection or audit at its offices during normal business hours and upon three (3) days'
notice from the City, and copies thereof shall be furnished if requested.
13.
14. Conflict of Interest.
Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
would conflict in any manner with the performance of its services pursuant to this
Agreement.
A.
Consultant covenants not to give or receive any compensation, monetary
or otherwise, to or from the ultimate vendor(s) of hardware or software to City as a
result of the performance of this Agreement. Consultant's covenant under this section
shall survive the termination of this Agreement.
B.
Termination. The City may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to Consultant. The effective date of
termination shall be upon the date specified in the notice of termination, or, in the event
no date is specified, upon the fifteenth (15th) day following delivery of the notice. In the
15.
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event of such termination, City agrees to pay Consultant for services satisfactorily
rendered prior to the effective date of termination. Immediately upon receiving written
notice of termination, Consultant shall discontinue performing services, unless the
notice provides otherwise, except those services reasonably necessary to effectuate the
termination. The City shall be not liable for any claim of lost profits.
Personnel/Designated Person. Consultant represents that it has, or will
secure at its own expense, all personnel required to perform the services under this
Agreement. All of the services required under this Agreement will be performed by
Consultant or under it supervision, and all personnel engaged in the work shall be
qualified to perform such services. Except as provided in this Agreement, Consultant
reserves the right to determine the assignment of its own employees to the performance
of Consultant's services under this Agreement, but City reserves the right in its sole
discretion to require Consultant to exclude any employee from performing services on
City's premises.
16.
Non-Discrimination and Equal Employment Opportunity.17.
Consultant shall not discriminate as to race, color, creed, religion, sex,
marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
A.
Consultant will, in all solicitations or advertisements for employees placed
by or on behalf of Consultant state either that it is an equal opportunity employer or that
all qualified applicants will receive consideration for employment without regard to race,
color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
B.
Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
C.
Time of Completion. Consultant agrees to commence the work provided
for in this Agreement within (5) days of being notified by the City to proceed and to
diligently prosecute completion of the work within One hundred fifty (150) calendar days
from such date or as may otherwise be agreed to by and between the Project Manager
and the Consultant.
18.
Time is of the essence in this Agreement.Time Is of the Essence.
Consultant shall do all things necessary and incidental to the prosecution of
Consultant's work.
19.
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20. Reserved.
Delays and Extensions of Time. Consultant's sole remedy for delays
outside its control shall be an extension of time. No matter what the cause of the delay,
Consultant must document any delay and request an extension of time in writing at the
time of the delay to the satisfaction of City. Any extensions granted shall be limited to
the length of the delay outside Consultant’s control. If Consultant believes that delays
caused by the City will cause it to incur additional costs, it must specify, in writing, why
the delay has caused additionai costs to be incurred and the exact amount of such cost
within 10 days of the time the delay occurs. No additional costs can be paid that
exceed the not to exceed amount absent a written amendment to this Agreement. In no
event shall the Consultant be entitled to any claim for lost profits due to any delay,
whether caused by the City or due to some other cause.
21.
Assignment. Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without
the prior written consent of City, and any attempt by Consultant to so assign this
Agreement or any rights, duties, or obligations arising hereunder shall be void and of no
effect.
22.
Compliance with Laws. Consultant shall comply with all applicable laws
ordinances, codes and regulations of the federal, state, and local governments.
23.
Non-Waiver of Terms, Rights and Remedies. Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall
the making by City of any payment to Consultant constitute or be construed as a waiver
by City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
Attorney's Fees. In the event that either party to this Agreement shall
commence any legal or equitable action or proceeding to enforce or interpret the
provisions of this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover its costs of suit, including reasonable attorney's fees and costs,
including costs of expert witnesses and consultants.
Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, which cannot be resolved by
the parties, may be referred by the parties hereto for mediation. A third party, neutral
mediation service shall be selected, as agreed upon by the parties and the costs and
expenses thereof shall be borne equally by the parties hereto. The parties agree to
utilize their good faith efforts to resolve any such dispute or controversy so submitted to
mediation. It is specifically understood and agreed by the parties hereto that mutual
good faith efforts to resolve the same any dispute or controversy as provided herein,
shall be a condition precedent to the institution of any action or proceeding, whether at
law or in equity with respect to any such dispute or controversy.
24.
25.
26.
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27. Notices. Any notices, bills, invoices, or reports required by this
Agreement shall be deemed received on (a) the day of delivery if delivered by hand
during regular business hours or by facsimile before or during regular business hours;
or (b) on the third business day following deposit in the United States mail, postage
prepaid, to the addresses heretofore set forth in the Agreement, or to such other
addresses as the parties may, from time to time, designate in writing pursuant to the
provisions of this section.
CONSULTANT CITY
City of Diamond Bar
21810 Copley Drive
Diamond Bar, CA 91765-4178
Attn; Ryan Wright
Kizh Nation Resources Management
910 N. Citrus Avenue
Covina, CA 91722
Attn.: Mr. Andy Salas
Phone; 626.926.4131
626.521.5827
E-Mail; admin@knrm-nsn.us
Phone; 909.839.7061
E-mail; rwright@diamondbarca.gov
Governing Law. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of California. The venue for any
action brought under this Agreement shall be in Los Angeles County.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
28.
29.
30. Entire Agreement. This Agreement, and any other documents
incorporated herein by reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended,
nor any provision or breach hereof waived, except in a writing signed by the parties
which expressly refers to this Agreement. Amendments on behalf of the City will only
be valid if signed by a person duly authorized to do so under the City's Purchasing
Ordinance.
IN WITNESS of this Agreement, the parties have executed this Agreement as of
the date first written above.
City’Consultant'
AGEMENT CITY OF DIAMOND BAR
Daniel Digitally signed
KIZH NATL
by Daniel Fox
DN; cn » Dan^ef Fox, o. ou,
email sdfo«#didmond barca .gov.
c^S
Date: 2022-tOil 07:21:10-07 00*
2
By: FoxBy:
Prin^^g^ftemcr^*t^^Y^AAl SitA \ Q ^
Title: Z
Daniel Fox, City Manager
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ATTEST;By:
Printed Name:
Title;
Kristina Santana, City Clerk
Approved as to form:
By:/ '
for David DeBerry, City Attorney
NOTE: If Consultant is a corporation, the City requires the foliowing signature(s):
1) the Chairman of the Board, the President ora Vice-President, AND (2) the Secretary,
the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant
Treasurer. If only one corporate officer exists or one corporate officer holds more than
one corporate office, please so indicate. OR
The corporate officer named in a corporate resolution as authorized to enter into this
Agreement. A copy of the corporate resolution, certified by the Secretary close in time to
the execution of the Agreement, must be provided to the City.
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1450836.1
II
KIZH NATION RESOURCES MANAGEMENT
A Native American Owned and Operated Small Minority Business-
NATIVE AMERICAN MONITORING SERVICE AGREEMENT
This agreement for Native American monitoring services is entered into on October 18, 2022 by
and between, KIZH NATION RESOURCES MANAGEMENT ("KNRM"), and the City of Diamond Bar
Diamond Bar or the "Lead Agency") (collectively referred to as, the "Parties"), for the compliance of the
development project located at Canyon Loop Trail Project, Diamond Bar, California (the "Project Site"),
with the mitigation measures adopted by the Project lead agency, the City of Diamond Bar (the "lead
agency" or " Diamond Bar"), pursuant to the California Environmental Quality Act ("CEQA) (hereinafter,
the "Project").
RECITALS
WHEREAS, the Tribe consulted with the lead agency regarding the adverse impacts the Project
will have on tribal cultural resources ("TCR") at, on, and/or beneath the Project Site, and proposed
mitigation measures to reduce those impacts below the threshold of significance as required by the
California Environmental Quality Act ("CEQA");
WHEREAS, the lead agency found that substantial evidence supported the adoption of the Tribe's
proposed TCR mitigation measures and made those mitigations mandatory conditions of the Project
approval (collectively, the "Mitigations");
WHEREAS, the purpose of this Agreement is for the protection and preservation of the Tribe's
TCRs and compliance of the Project with the adopted Mitigations, which are attached hereto as Exhibit A.
and incorporated herein by this reference.
Accordingly, KNRM and the City of Diamond Bar hereby agree as follows:
CONTINUED ON THE FOLLOWING PAGE]
KNRM - NATIVE AMERICAN MONITORING SERVICE AGREEMENT
Page 1 of 8
MONITORING AGREEMENT
1. SCOPE OF WORK
1.1. KNRM's Native American monitor will be physically present on the Project Site at all times ground-
disturbing Project activities are occurring. To implement the “tribal cultural resource" ("TCR")
Mitigations adopted for this Project, KNRM's monitor shall:
a)Monitor all "ground disturbing activities," including but not limited to, demolition,
grubbing/clearing, rough grading, precise grading, mass grading, trenching, excavation,
boring, augering, and weed abatement on previously disturbed and undisturbed ground;
Identify uncovered and/or discovered TCRs, including but not limited to Native American
artifacts, village sites, trade routes, midden deposits, ceremonial locations, human remains,
and grave goods {collectively referred to as, 'TCR" or "TCRs");
Ensure al l TCRs, especially human remains and associated grave goods, are treated with
culturally appropriate dignity and respect, and are handled and/or removed from the
Project Site in accordance with the Tribe's ceremonial and cultural practices ;
Attend and participate in Project meetings, including trainings and conferences, to inform
Project personnel about the potential for TCR discoveries and the appropriate courses of
action if/when a discovery occurs;
Create daily logs of observations made during monitoring, and provide written reports
detailing each TCR discovery, including but not l imited to, the date and time, location on the
Project Site, nature of the soil in the discovery location, facts pertaining to the Project
activities in that area, the location of the perimeter around the TCR discovery that the
monitor establishes to protect the location, and any cultural findings; and
Report discoveries to the Tribal Chairman and/or the Tribal Archaeologist, and incorporate
their input regarding the treatment of the TCR(s).
b)
c)
d)
e)
f)
1.2. In order to fully and effectively execute the monitoring services identified in Section 1.1 above, the
Parties agree that KNRM's monitor shall possess all of the following rights, which may be asserted at
any time and at any location on the Project Site:
To access any/all areas of the Project Site necessary to physical ly observe the "ground-
disturbing activities", as that phrase is defined in Section 1.1(a) above, as those ground-
disturbing activities are occurring;
To halt construction activity within the surrounding 50 feet (or more where deemed
necessary by KNRM's monitor) of a discovered TCR;
To meet and confer with the Project Supervisor in a timely manner regarding how to re
direct Project activities in the vicinity of a discovered TCR and the time frame for imposing a
no-work perimeter around a discovered TCR;
To meet and confer with the Project Supervisor in a timely manner regarding issues
pertaining to effectively monitoring the Project Site in a manner that ensures compliance
with the Mitigations;
To be timely notified of all Project meetings, including safety meetings, trainings,
scheduling, etc., and permitted to attend any/all meetings; and
To be treated in a respectful and courteous manner by alt Project management, staff,
personnel, contractors, and subcontractors.
a)
b)
c)
d)
e)
f)
KNRM - NATIVE AMERICAN MONITORING SERVICE AGREEMENT
Page 2 of 8
2. DISCOVERY OF NATIVE AMERICAN ARTIFACTS. GRAVE GOODS. AND/OR HUMAN REMAINS
If TCRs are found, the Tribe wil l retain it/them in the form and/or manner the Tribe deems
appropriate, for educational purposes.
2.1.
If human remains and/or grave goods are discovered or recognized at the Project Site, all damage or
disturbance shall immediately cease, and the county coroner shall be notified per Public Resources
Code Section 5097.98, and Health & Safety Code Section 7050.5. Human remains and grave/burial
goods shall be treated alike per California Public Resources Code section 5097.98(d)(1) and (2).
2.2.
The Lead Agency expressly acknowledges the obligations required of it under governing State and
Federal laws, including but not limited to, the California Public Resources Code, California Health &
Safety Code, California Government Code, and California Code of Regulations, in the event human
remains are discovered on the Project Site, and expressly agrees to comply with all such obligations,
and to the extent possible, obtain compliance of the property owner in the event human remains
are discovered on the Project Site but on land not owned and/or controlled by the Lead Agency.
2.3.
Pursuant to Public Resources Code Section 5097.98, subsections (d) and (e), if human remains or
associated burial goods are found on the Project Site and in an area that is under the ownership
and/or control of the Lead Agency, the Lead Agency agrees to provide a designated area on the
property at which to reinter the remains and/or burial goods with appropriate dignity that is not
subject to further disturbance.
2.4.
In the event that human remains and/or burial goods are found within the Project Site but in an
area that is outside of the ownership and/or control of the Lead Agency, the Lead Agency wil l make
a reasonable effort to secure an agreement with the property owner to reinter the remains and/or
burial goods with appropriate dignity in a designated area on the Project Site that is not subject to
further disturbance, as is required of the property owner pursuant to Public Resources Code Section
5097.98, subsections (d) and (e). If such an agreement with the property owner cannot be reached,
to the extent feasible, the Lead Agency will provide a designated area on the Project Site that is
within the Lead Agency's ownership and/or control, for reinternment of the human remains and/or
burial goods.
2.5.
If the portion of the Project Site where human remains and/or burial goods are discovered is within
the ownership and/or control of the Lead Agency, pursuant to Public Resources Code Section
5097.98(b), the Lead Agency shall ensure that the immediate area surrounding the discovery wi ll be
isolated and remain undisturbed until recommendations by the designated most likely descendent
within approximately 48-hours). The grading and excavation may continue outside of the isolated
area.
2.6.
3. FEES AND INVOICES
The Lead Agency agrees to pay KNRM for the above described monitoring services for the Project at
the following rates:
3.1.
KNRM - NATIVE AMERICAN MONITORING SERVICE AGREEMENT
Page 3 of 8
a)The standard, day-time rate per monitor is eighty-five dollars ($85.00) per hour for an eight
8) hour day ("Standard Workday"). A night differential rate of $95.00 per hour will be
applied for monitoring performed between the hours of 6 p.m. and 6 a.m.
The rate for monitoring that exceeds 8 hours per day, or 40 hours per week is $ 127.50 per
hour.
The rate for monitoring performed on a Saturday or Sunday is $127.50 per hour.
The rate for project management services, including but not limited to, consultant
communications, monitor coordination, project documentation, is one hundred and thirty
dollars ($130) per hour;
The rate for Project Director services, including consultation. Project meetings and
trainings, and communications, documentation, and coordination pertaining to compliance
issues, is two hundred dollars ($200) per hour;
In the event TCRs are discovered (whether prehistoric or historic), a KNRM Archaeologist
who meets the Secretary of the Interior's standards for Professional Archaeology), shall be
retained in addition to the monitor to assess the TCR, at a rate of one hundred and fifty
dollars ($150) per hour;
Mileage shall be reimbursed at the Federal Standard Rate for travel to and from the Project
Site, to/from KNRM's office located at 910 N. Citrus Avenue, Covina, California;
b)
c)
d)
e)
f)
g)
3.2. If It is unreasonable for one monitor to fulfil l their duties because Project Activities are occurring
concurrently, at more than one location on the Project Site and at a distance impractical for a single
monitor to serve simultaneously, then an additional monitor will be required at identical rates and
on identical terms.
3.3. KNRM shall invoice Lead Agency for fees monthly. The Lead Agency shal l make payment to KNRM
not later than thirty (30) days following the invoice date (Net 30). An advance deposit is required
from the Lead Agency, in an amount equal to twenty-five percent (25%) of the estimated cost
budgeted for the Project, prior to any work performed by KNRM under this Agreement. Invoices
not paid within 30 days of the invoice date are subject to a finance charge equal to ten percent
10%) of the monthly invoice total. Checks shall be made payable to "Kizh Nation Resources
Management" and mailed to:
Kizh Nation Resources Management
910 N. Citrus Ave
Covina, CA 91722
4. NOTICE
4.1. In the event a scheduled Standard Workday is canceled entirely or the hours are altered for any
reason, the Lead Agency shall promptly notify KNRM no later than 5:00 p.m. PST on the business
day prior to the altered day, at the "Contact Information" set forth in Section 5 below. If KNRM has
not received timely notice of a schedule cancellation or change, a minimum fee of three hundred
forty dollars ($340.00) shall be applied per late cancellation event.
4.2. All communications pertaining to or that may impact KNRM's implementation of the services set
forth in section 1 of this Agreement shall be made in writing and per the contact information in
section 5 below.
KNRM - NATIVE AMERICAN MONITORING SERVICE AGREEMENT
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5. CONTACT INFORMATION
5.1. Notices to KNRM;
Telephone-{626) 926-4131
KNRM Office - (626) 521-5827
Email: admin@knrm-nsn.us
5.2. Lead Agency:
Name^^^ Wright'
Phone:
Email:
5.3. On-Site Project Contact (i.e., "Project Supervisor")
Name;
Phone:
ao&od^^ 5)^mail.oomEmail:
5.4 Billing Contact information
City c^Duuvttm^ hikr-'RjjMvWri^ktName;
Phone:
Email:
6. LIMITATION OF LIABILITY AND LIQUIDATED DAMAGES
6.1. Despite any language in this Agreement to the contrary, KNRM's obligations under this Agreement
including any actual or alleged breach or default by KNRM) do not constitute personal obligations
KNRM - NATIVE AMERICAN MONITORING SERVICE AGREEMENT
Page 5 of 8
of the individual partners, directors, officers, members or shareholders of KNRM or the Tribe, or the
partners or members of KNRM or the Tribe. The Lead Agency shal l not seek recourse against the
individual partners, directors, officers, members or shareholders of KNRM or the Tribe, or any of
their personal assets for satisfaction of any liability with respect to this Agreement.
In consideration of the benefits accruing hereunder to the Lead Agency and notwithstanding
anything contained in this Agreement to the contrary, the Lead Agency hereby covenants and
agrees for itself and all of its successors and assigns that the liability of KNRM and the Tribe for
KNRM's obligations under this Agreement (including any l iability as a result of any actual or alleged
failure, breach or default hereunder by KNRM or any alleged tort committed in connection with
KNRM's work), shall be limited solely to KNRM's insurance coverage as provided in Section 7 of this
Agreement.
6.2.
In the event the Lead Agency performs (directly or through a contractor, subcontractor, agent,
representative or otherwise at the Lead Agency's direction) or allows to be performed ground-
disturbing work without a monitor present in violation of Mitigations and in breach of this
Agreement, KNRM will suffer substantial harm for which it is impracticable to fix actual damages. To
limit or prevent further harm, the Lead Agency agrees and consents to the immediate issuance of a
Stop Work Order by the Project lead agency, which shall stay in full force and effect unless and until
the Parties resolve the non-compliance events and resulting damages.
6.3.
7. INSURANCE
A certificate of general l iability insurance coverage can be provided upon request.7.1.
KNRM does not hold an automobile liability policy for the monitors. Vehicles are only used for
transportation to and from the Project Site. Each individual monitor is required to carry automobile
insurance pursuant to California State law. Proof of a monitor's automobile insurance can be
provided upon request.
7.2.
8. MISCELLANEOUS
Governing Law. This Agreement shall be governed by, and construed pursuant to, the laws of the
state of California.
Recitals. All recitals set forth in this Agreement are contractual.
Terms and Headings. Section headings of this Agreement are for convenience, are merely
descriptive, and do not alter the rights of the parties.
Time. Time is of the essence with respect to performance of every provision of this Agreement in
which time or performance is a factor. All references in this Agreement to "days" shall mean
calendar days unless specifically modified herein to be "business" days.
Professional Fees. If either KNRM or Lead Agency should bring suit against the other with respect
to this Agreement, then all reasonable costs and expenses incurred by the prevailing party therein
including, without limitation, its accountants', attorneys', experts' and other professional's fees,
expenses and court costs), shal l be paid by the other party.
Waiver. The waiver by either party of any breach by the other party of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any subsequent breach of the
8.1.
8.2.
8.3.
8.4.
8.5.
8.6.
KNRM - NATIVE AMERICAN MONITORING SERVICE AGREEMENT
Page 6 of 8
same or any other term, covenant and condition herein contained, nor shall any custom or practice
which may become established between the Parties in the administration of the terms hereof be
deemed a waiver of, or in any way affect, the right of any party to insist upon the performance by
the other in strict accordance with said terms.
8.7. Prior Agreements; Amendments. This Agreement, contains all of the covenants, provisions,
agreements, conditions and understandings between the Parties concerning the Project and any
other matter covered or mentioned in this Agreement, and no prior agreement or understanding,
oral or written, express or implied, pertaining to the Project or any such other matter shall be
effective for any purpose. No provision of this Agreement may be amended or added to except by
an agreement in writing signed by the Parties hereto or their respective successors in interest. The
Parties acknowledge that all prior agreements, representations and negotiations are deemed
superseded by the execution of this Agreement to the extent they are not expressly incorporated
herein. The Parties hereto acknowledge and agree that each has participated in the negotiation and
drafting of this Agreement; therefore, in the event of an ambiguity in, or dispute regarding the
interpretation of, this Agreement, the interpretation of this Agreement shall not be resolved by any
rule of interpretation providing for interpretation against the party who caused the uncertainty to
exist or against the draftsman. Any deletion of language from this Agreement prior to its execution
by the Parties shal l not be construed to raise any presumption, canon of construction or implication,
including, without limitation, any implication that the Parties intended thereby to state the
converse of the deleted language.
8.8. Separability. The invalidity or unenforceability of any provision of this Agreement shall in no way
affect, impair or invalidate any other provision hereof, and such other provisions shall remain valid
and in full force and effect to the fullest extent permitted by law.
8.9. Force Majeure. In the event that either party hereto shall be delayed or hindered in or prevented
from the performance of any act required hereunder by reason of strikes, lock-outs, labor troubles,
inability to procure materials, failure of power, governmental moratorium or other governmental
action or inaction (including failure, refusal or delay in issuing permits, approvals and/or
authorizations), orders/closures/restrictions pertaining to CQVID-19, injunction or court order, riots,
insurrection, war, fire, earthquake, flood, inclement weather in excess of average for the Los
Angeles County area or other natural disaster or other reason of a like nature not the fault of the
party delayed in performing work or doing acts required under the terms of this Agreement (herein
collectively, "Force Majeure Delays"), then performance of such act shall be excused for the period
of the delay and the period for the performance of any such act shal l be extended for a period
equivalent to the period of such delay, provided the delayed party has notified the other party of
the Force Majeure Delay within five (5) business days of learning of the same, such notice
specifical ly describes the Force Majeure Delay and its expected duration, and the delayed party
regularly updates the other party of the status of the same and the delayed party takes all
commercially reasonable efforts to mitigate the effects and minimize the duration of the delay. The
provisions of this Section 7.9 shall not apply to nor operate to excuse Lead Agency (or any third-
party contractor operating on behalf of Lead Agency) from the payment of any fees owed to or the
reimbursement of costs incurred by KNRM in accordance with the terms of this Agreement, nor
extend the date for payment of same to KNRM.
8.10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall
constitute an original and ail of which shall be one and the same agreement. Facsimile and
electronic signatures are valid and binding.
8.11. Lead Agenc/s Authority. The agent/representative of the Lead Agency that executes this
Agreement represents and warrants that: (a) the Lead Agency is qualified to do business in the state
of California; (b) such persons executing this Agreement are duly authorized to execute and deliver
this Agreement on the Lead Agency's behalf, or a duly adopted resolution of the Lead Agency's
KNRM - NATIVE AMERICAN MONITORING SERVICE AGREEMENT
Page 7 of 8
board of directors; and (c) this Agreement is binding upon the Lead Agency in accordance with its
terms.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of October 18, 2022.
City of Diamond Bar]LEAD AGENCY
DigiUlly by D«ni«l Fox
ON: cn-Oamd Fox. o. ou.
ofnail-dfox4xdiamondbdrca.9ov
CMJS
Date; 2022.10.21 07:20:26-07W
Daniel Fox
By:
DamiPrintName:
CityMmagzrPrintTitle:
KIZH NATION RESOUR££SMAf4AG£MFNT-KNRM
By:
Print Name:
Print
KNRM - NATIVE AMERICAN MONITORING SERVICE AGREEMENT
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