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1988-0620_JUANENO BAND OF MISSION INDIANS (4)_Consultant AgreementAGREEMENT FOR CONSULTING SERVICES THIS AGREEMENT is made and entered into this ;20 day of Auw/ 1988, by and between the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, hereinafter referred to as "AGENCY" and JUANENO BAND OF MISSION INDIANS, hereinafter referred to as "CONSULTANT". WITNESSETH: WHEREAS, AGENCY requires Native American monitoring of archaeological sites for project areas including, but not limited to, the Historic Town Center and Area A. WHEREAS, CONSULTANT represents he/they is duly qualified to provide said service. NOW, THEREFORE, AGENCY and CONSULTANT, for the consideration hereinafter named, agree as follows: SECTION 1. GENERAL The considerations of work on the project shall be governed by the conditions contained herein. In general, the tasks delineated herein are to be performed with mini- mum direction and assistance from AGENCY. All work performed by CONSULTANT, however, shall be subject to review and approval of the Deputy Director of Community Redevelopment Agency or his designee at all times. SECTION 2. SCOPE OF TASKS BY CONSULTANT Subject to the terms and conditions of this agreement, CONSULTANT shall perform the tasks as set forth in Exhibit A, attached and incorporated herein by reference. During the performance of the above tasks, CONSULTANT shall have access to existing data in AGENCY files and AGENCY shall provide copies of any such data CONSULTANT requests at no cost to CONSULTANT. SECTION 3. TIME OF BEGINNING AND COMPLETION OF SERVICES The services provided under this Agreement shall begin upon execution of this Agreement by all parties. Payment under this Agreement shall be in accordance with Exhibit B, attached hereto and made a part hereof. Three (3) copies of itemized bills, clearly indicating the period for which the billing is made, and including dates on which expenses (except costs for reproduction) were incurred, and individuals' hourly rates and tasks performed, including time spent on each task, shall be submitted to: City of San Juan Capistrano, Community Redevelopment Agency, 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. SECTION 5. COVENANT AGAINST CONTINGENT FEES CONSULTANT warrants that he has not employed or retained any company or person, other than a bona fide employee working for CONSULTANT, to solicit or secure this Agreement, that he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or making of this Agree- ment. For breach or violation of this warranty, AGENCY shall have the right to annul this Agreement without liability, or, at its sole discretion, to deduct from the Agreement price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. SECTION 6. EXPENSES CONSULTANT acknowledges AGENCY is under no obligation to compensate consultant for services rendered or expenses accrued under this Agreement in excess of the maximum compensation specified in Section 4. SECTION 7. OWNERSHIP OF DOCUMENTS All tracings, plans, specifications, maps or other documents prepared or obtained under the terms of this Agreement shall be delivered to, and become the property of the AGENCY, and basic survey notes and sketches, charts, computations and other data prepared or obtained under this Agreement, shall be made available upon request, to AGENCY without restriction or limitation on their use. SECTION 8. NON -DISCLOSURE The designs, plans, reports, investigation, materials and documents prepared or acquired by CONSULTANT pursuant to this Agreement (including any duplicate copies kept by CONSULTANT) shall not be shown to any other public or private person or entity, except as authorized by AGENCY. CONSULTANT shall not disclose to any other public or private person or entity any information regarding the activities of AGENCY, except as authorized by AGENCY. SECTION 9. CONFLICT OF INTEREST For the duration of this Agreement, CONSULTANT shall not act as consultant or perform services of any kind for any person or entity in regard to the project area without the prior written consent of AGENCY. 2 No additional fee shall be paid by AGENCY for additional consulting services not included in this Agreement without the written approval of AGENCY prior to undertaking such work. In the event of suspension of project by AGENCY, CONSULTANT shall have the right to renegotiate fees if delay is greater than six (6) months. SECTION 11. TERMINATION AGENCY may, without cause, terminate the Agreement at any time prior to completion by CONSULTANT of any of the services required hereunder. Notice of Termination of this Agreement shall be given in writing to CONSULTANT, and shall be sufficient to complete when same is deposited in the U.S. Mails, First Class postage prepaid. In the event this Agreement is terminated by AGENCY, CONSULTANT shall be paid the value of services performed by him pursuant to this Agreement prior to the date of termination thereof, such value to be the total to which he shall have become entitled, as determined by the Deputy Director of Community Redevelopment Agency, less the amount of any payments previously made, but in no event exceeding the maximum contract amount stated in SECTION 4. SECTION 12. DISPUTES Unless otherwise specified herein, any dispute over a question of fact arising under this Agreement, which cannot be resolved by agreement between the parties, may be, by mutual consent of the parties, submitted to a 'Board of Arbitration" consisting of three (3) arbitrators having expertise relating to this contract subject matter, one of whom shall be selected by each of the parties, and the third by the two members selected by the parties. Each of the parties shall pay the member selected by it, and the compensation of the third member shall be paid equally by the parties. The parties shall be bound by the decision of the Board of Arbitration. SECTION 13. NO ASSIGNMENTS Neither any part nor all of this Agreement may be assigned or subcontracted, except as otherwise specifically provided herein, or to which AGENCY, in its sole discretion, consents to in advance thereof in writing. Any assignment or subcontracting in violation of this provision shall be void. SECTION 14. ENDORSEMENT ON PLANS, ETC. CONSULTANT shall endorse all plans, data and other documentation submitted to AGENCY pursuant to this Agreement. SECTION 15. CORRECTION OF WORK The performance of services by CONSULTANT shall not relieve CONSULTANT from any obligation to correct any incomplete, inaccurate or defective work at no further cost to AGENCY, when such inaccuracies are due to the negligence of CONSULTANT, provided such work has not been accepted in writing by AGENCY. SECTION 16. MAINTENANCE OF RECORDS 0 CONSULTANT and his subcontractors shall maintain all books, documents, papers, employee time sheets, accounting records and other evidence pertaining to costs incurred and shall make such materials available at their respective offices at all reasonable times during the contract period and for three (3) years from the date of final payment under this Agreement, for inspection by AGENCY and copies thereof shall be furnished, if requested. SECTION 17. INDEPENDENT CONTRACTOR At all times during the term of this Agreement, CONSULTANT shall be an independent contractor and shall not be an employee of AGENCY. AGENCY shall have the right to control CONSULTANT only insofar as the results of CONSULTANT'S services rendered pursuant to this Agreement; however, AGENCY shall not have the right to control the means by which CONSULTANT accomplishes services rendered pursuant to this Agreement. SECTION 18. LICENSES, PERMITS, ETC. CONSULTANT represents and warrants to AGENCY that he has all licenses, permits, qualifications and approvals of whatever nature that are legally required to practice his profession. CONSULTANT represents and warrants to AGENCY that CONSULTANT shall, at his sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit or approval which is legally required for CONSULTANT to practice his profession. SECTION 19. LIABILITY Notwithstanding any other provision contained in this Agreement, CONSULTANT shall be responsible for all injuries to persons and for all damage to real or personal property of AGENCY or others, caused by or resulting from the wrongful act or negligent acts errors or omissions of itself, its employees, or its agents during the progress of, or connected with, the rendition of services hereunder. CONSULTANT shall defend and hold harmless and indemnify AGENCY, and all officers and employees of each public agency from all costs and claims for damages to real or personal property, or personal injury to any third party, resulting from the negligence of itself, its employees, or its agents, arising out of CONSULTANT'S performance or work under this Agreement. SECTION 20 COMPLIANCE WITH LAWS During the performance of this Agreement CONSULTANT agrees as follows: A. CONSULTANT will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. CONSULTANT will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. B. CONSULTANT will, in all solicitations of advertisements for employees placed by or on behalf of CONSULTANT, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. C. CONSULTANT will perform the services herein contemplated in compliance with the Federal and California laws concerning minimum hours and wages (Davis -Bacon Act, 40 U.S.C. 267a et seq. and California Labor Code, Sections 1171 et seq.), occupational health and safety (29 U.S.C. 651 et seq. and California Labor Code, Sections 6300 et seq.), fair employment practices (29 U.S.C. 201 et seq. and California Labor Code, Sections 1410 et seq.), Workers' Compensation Insurance and Safety in Employment (Divisions 4 and 5 of the California Labor Code) and all amendments thereto, and all similar State or Federal laws to the extent they are applicable. D. CONSULTANT will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement so that such provisions will be binding upon each subcontractor, provided that the foregoing provisions shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. SECTION 21. CONSULTANT NOT AN AGENT Except as AGENCY may specify in writing, CONSULTANT shall have no authority, expressed or implied, to act on behalf of AGENCY in any capacity whatsoever as an agent. CONSULTANT shall have no authority, expressed or implied, pursuant to this Agreement to bind AGENCY to any obligation whatsoever. SECTION 22. PERSONNEL CONSULTANT agrees to assign the following person/persons to perform the tasks set forth in this Agreement: Mr. Ray Belardes, Chief, or other Band representatives CONSULTANT shall not unilaterally alter the assignment of the above personnel without the authorization of the Deputy Director of Community Redevelopment Agency. AGENCY shall have the unrestricted right to order the removal of any person/persons assigned by CONSULTANT by giving oral or written notice to CONSULTANT to such effect. SECTION 23. NOTICES Notices to the parties, unless otherwise requested in writing shall be sent to AGENCY at: San Juan Capistrano Community Redevelopment Agency 32400 Paseo Adelanto San Juan Capistrano, CA 92675 and CONSULTANT at: Juaneno Band of Mission Indians 16760 Paradise Mt. Road Valley Center, CA 92082 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first hereinabove written. CONSULTANT SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY THOMAS G. MERRELL DEPUTY EXECUTIVE DIRECTOR APPROVED AS TO FORM: ATTEST: N • EXHIBIT A SCOPE OF WORK 11 In accordance with Public Resources Code, Sections 5097.94 and 5097.98, the Native American Heritage Commission has published a list of Native American consultants who are to be notified and who are to serve as consultants in all cases where development projects may involve the excavation of Native American burial remains. The Juaneno Band of Mission Indians is an authorized monitor and the Redevelopment Agency will utilize its monitoring services on the Historic Town Center project, Area A or other designated project areas ("Site") as follows: 1. The Native American Monitor shall have access to the Site while any archaeological work is under way. CONSULTANT shall be present at the Site for the entire day while archaeological work is under way in order to ensure sufficient monitoring of the Site. If, however, the AGENCY'S archaeologist on Site determines there is not the need for the CONSULTANT to be on Site for an entire day, the AGENCY'S archaeologist can dismiss the CONSULTANT at the appropriate time. Nevertheless, CONSULTANT shall not leave the Site without consulting with AGENCY'S archaeologist. If CONSULTANT services are not needed on a certain day(s) during the AGENCY'S archaeologist's on-site work, the CONSULTANT shall be so informed and need not report to the Site on that day. Lastly, CONSULTANT shall not monitor any other Site than the one he is assigned to (i.e., one CONSULTANT cannot monitor two sites and collect payment for two sites). 2. If Native American human burial or skeletal remains are found on the Site, CONSULTANT shall first notify the AGENCY which shall be responsible for ensuring that strict adherence to the law (Senate Bill No. 297) is paid. Senate Bill No. 297 (September 27, 1982) adds Section 7050.5 to the Health and Safety Code, to amend Section 5097.94 of, and to add Sections 5097.98 and 5097.99 to, the Public Resources Code, relating to Native American Remains. A copy of Senate Bill 297 is attached hereto and made a part of this contract. 3. If any artifactual remains are found, with the exception of those found in direct and close association with a human burial or burials (i.e., gravegoods), they will be considered the property of the then current property owner as of the date of the finding. The ultimate disposition of the items would be by decision of the Property Owner with the consultation of AGENCY. If, however, gravegoods are found they shall be handled in accordance with State Law. 4. If at any time during the term of this Agreement should CONSULTANT cease to be listed as an authorized Native American Consultant for Coastal Orange County by the Commission or should State of California procedures, Commission procedures and/or State law be changed so as to establish a procedure different from that set forth in Public Resources Code Sections 5097.94 and 5097.98 and those procedures adopted pursuant thereto by the Commission for the notification and selection of Native American Consultants, this Agreement shall immediately terminate and be of no further force and effect. E I. Compensation EXHIBIT B PAYMENT FOR SERVICES 0 CONSULTANT shall be paid a maximum of $150 per day compensable for monitoring services performed per Site. The fee for CONSULTANT services will be as noted above regardless of the number of monitors the CONSULTANT has per Site. The AGENCY will be billed bi-monthly for CONSULTANT'S time. The maximum amount for all services performed pursuant to this Agreement shall be $3,000. No additional services beyond the scope of this Agreement shall be provided without prior written authorization by AGENCY. II. Expenses CONSULTANT shall not be reimbursed for any out-of-pocket or other expenses whatsoever. GPL/AGJBMI 9