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PW Francisco Blvd. West MUP Phase II Archaeological ConsultingAGREEMENT FOR PROFESSIONAL SERVICES FOR ARCHAEOLOGICAL MONITORING SERICES FOR THE FRANCISCO BOULEVARD WEST MULTI -USE PATH PHASE II This Agreement is made and entered into thiso-•- day of 72— ,he , 20!!?10, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and ARCHAEOLOGICALMISTORICAL CONSULTANTS (A/HC), (hereinafter "CONSULTANT"). RECITALS WHEREAS, the CITY has detennined that archaeological monitoring services are required as part of the Multi -Use Path (MUP) Phase II, City Project No. 11364; and WHEREAS, the CONSULTANT has agreed to render such services. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: PROJECT COORDINATION. A. CITY'S Project Manager. April Miller is hereby designated the PROJECT MANAGER for the CITY and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONSULTANT'S Project Director. CONSULTANT shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONSULTANT. Daniel Shoup is hereby designated as the PROJECT DIRECTOR for CONSULTANT. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONSULTANT shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONSULTANT. CONSULTANT shall perform the duties and/or provide services outlined in the CONSULTANT's proposal dated April 27, 2020, marked as Exhibit A, attached hereto and incorporated herein. 3. DUTIES OF CITY. CITY shall pay the compensation as provided in Paragraph 4, and perform the duties as follows: CITY shall pay the compensation as provided in Paragraph 4, and perform the duties as described in Exhibit A. 4. COMPENSATION. For the full performance of the services described herein by CONSULTANT, CITY shall pay CONSULTANT as follows: For the full performance of the services described herein by CONSULTANT, CITY shall pay CONSULTANT on a time and materials basis for services rendered in accordance with the rates shown in Exhibit A, attached hereto, and incorporated herein, in an amount not -to -exceed $3,995. Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONTRACTOR. TERM OF AGREEMENT. The term of this Agreement shall commence upon the date of execution of this Agreement and end 180 days after the date of execution of this agreement, or on such earlier date when the work shall have been completed. Upon mutual agreement of the parties, and subject to the approval of the City Manager, the tenn of this Agreement may be extended for an additional period of up to 90 days. 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONSULTANT and any and all of CONSULTANT's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. OWNERSHIP OF DOCUMENTS. The written documents and materials prepared by the CONSULTANT in connection with the performance of its duties under this Agreement, shall be the sole property of CITY. CITY may use said property for any purpose, including projects not contemplated by this Agreement. Revised 1/29/2020 INSPECTION AND AUDIT. Upon reasonable notice, CONSULTANT shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONSULTANT in connection with its performance of its duties under this Agreement. CONSULTANT shall fiilly cooperate with CITY or its agent in any such audit or inspection. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. Scope of Coverage. During the term of this Agreement, CONSULTANT shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of five hundred thousand ($500,000) per occurrence/five hundred thousand dollars ($500,000) aggregate, to cover any claims arising out of the CONSULTANT's performance of services under this Agreement. Where CONSULTANT is a professional not required to have a professional license, CITY reserves the right to require CONSULTANT to provide professional liability insurance pursuant to this section. 4. If it employs any person, CONSULTANT shall maintain worker's compensation insurance, as required by the State of California, with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease. CONSULTANT's worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. B. Other Insurance Requirements. The insurance coverage required of the CONSULTANT in subparagraph A of this section above shall also meet the following requirements: 1. Except for professional liability insurance or worker's compensation insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, Revised 1129/2020 agents, employees, and volunteers, as additional insureds (for both ongoing and completed operations) under the policies. 2. The additional insured coverage under CONSULTANT'S insurance policies shall be "primary and noncontributory" with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in CONSULTANT'S policies shall be at least as broad as ISO form CG20 0104 13. 3. Except for professional liability insurance or worker's compensation insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. By execution of this Agreement, CONSULTANT hereby grants to CITY a waiver of any right to subrogation which any insurer of CONSULTANT may acquire against CITY by virtue of the payment of any loss Linder such insurance. CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a narned insured. 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. No representation is made that the rninimurn Insurance requirements of this agreement are sufficient to cover the obligations of the CONSULTANT Linder this agreement. C. Deductibles and SIR'S. Any deductibles or self-insured retentions in CONSULTANT's insurance policies must be declared to and approved by the PROJECT MANAGER and City Attorney and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At CITY's option, Revised 1/29/2020 the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONSULTANT shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. CONSULTANT shall provide to the PROJECT MANAGER or CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONSULTANT. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. 11. INDEMNIFICATION. A. Except as otherwise provided in Paragraph B., CONSULTANT shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CITY, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of CONSULTANT'S performance of its obligations or conduct of its operations under this Agreement. The CONSULTANT's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or willful misconduct of the City Indemnitees, the CONSULTANT's indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONSULTANT's work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the CONSULTANT's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONSULTANT'S performance of or operations under this Agreement, CONSULTANT shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. B. Where the services to be provided by CONSULTANT tinder this Agreement are design professional services to be performed by a design professional as that term is defined under Civil Code Section 2782.8, then, to the extent permitted by law including without limitation, Civil Code sections 2782, 2782.6 and 2782.8, CONSULTANT shall indemnify and hold harmless the CITY and its officers, officials, and employees (collectively City Indemnitees) from and against damages, liabilities or costs (including incidental damages. Court costs, reasonable attorney's fees as may be detennined by the Court, litigation expenses and fees of expert witnesses incurred in connection therewith and costs of investigation) to the extent they are caused by the negligence, recklessness, or willful misconduct of CONSULTANT, or any subconsultants, or subcontractor or anyone directly or indirectly employed by them, or anyone for whom they are legally liable Revised 1/29/2020 (collectively Liabilities). Such obligation to hold harmless and indemnify any indemnity shall not apply to the extent that such Liabilities are caused in part by the negligence or willful misconduct of such City Indemnitee. C. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the full period of time allowed by law. 12. NONDISCRIMINATION. CONSULTANT shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONSULTANT shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. CONSULTANT shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONSULTANT shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THlR D PARTY BENEFICIARIES. CITY and CONSULTANT do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 15. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY's Project Manager: April Miller City of San Rafael 111 Morphew Street San Rafael, CA 94901 Revised 1/29/2020 TO CONSULTANT's Project Director: Daniel Shoup Archaeological/Historical Consultants 609 Aileen Street Oakland, CA 94609 16. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONSULTANT, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONSULTANT and CITY expressly intend and agree that the status of CONSULTANT, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT -- AMENDMENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONSULTANT and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONSULTANT and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONSULTANT agrees that CITY may deduct from any payment due to CONSULTANT under this Agreement, any monies which CONSULTANT owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any tern, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent Revised 1/29/2020 acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 21. CITY BUSINESS LICENSE / OTHER TAXES. CONSULTANT shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code CONSULTANT shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work performed under this Agreement, until CONSULTANT has provided CITY with a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification). 22. SURVIVAL OF TERMS. Any terms of this Agreement that by their nature extend beyond the term (or termination) of this Agreement shall remain in effect until fulfilled and shall apply to both Parties' respective successors and assigns. 23. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. 24. COUNTERPARTS AND ELECTRONIC SIGNATURE. This Agreement may be executed by electronic signature and in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic transmission. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAF AEL JIM"6CHTZ, City i na erJIM TZ Revised 1/29/2020 CONSULTANT By: - 1 . 20in� ATTEST: /ter LINDSAY LARA, City Clerk APPROVED AS TO FORM: JAWw,— ROBERT F. EPSTEIN, ty Attorney Revised 1/29/2020 Name: Daniel Shoup Title: Principal [If CONSULTANT is a corporation, add signature of second corporate officer] Name: Title: Exhibit A Proposal for Archaeological Monitoring Services Francisco Boulevard West Multi -Use Path Phase II San Rafael, CA Submitted to: City of San Rafael Department of Public Works 1400 Fifth Avenue San Rafael, CA 95126 April 27, 2020 ARCHAEOLOGICAL/HISTORICAL CONSULTANTS INTRODUCTION 609 Aileen Street Oakland, CA 94609 (510)654-5635 info@ahc-heritage.com wym.ahc-heritage.com The City of San Rafael proposes to construct a multi -use path between from Second Street to Rice Street, adjacent to the SMART right-of-way, in the City of San Rafael. This is Phase ii of the project; Phase I extended from Rice Street to Andersen Drive. Construction will include surface grading up to 1 foot deep, and earth -moving up to 3 feet deep. Since several prehistoric archaeological sites are known within '/4 -mile of the project area, the City of San Rafael has requested a proposal for cultural resources monitoring per the terms of the project's agreed mitigation measures. The whole of the project area is former marshland, filled since 1900. Current sea level was reached around 5,000 years ago, allowing saltwater marshes to form around the margins of San Francisco Bay. Geotechnical studies for the SMART corridor suggest that soils throughout the project area include 5 to 7 feet of uncontrolled fill material and are therefore not sensitive for prehistoric archaeological resources. Given this, our proposed scope of work includes a field survey, pre -construction training for construction crew, spot checks of excavation areas during excavation, and preparation of a monitoring memorandum on completion of work. We presume that the City of San Rafael will coordinate any necessary Native American consultation under AB52. SCOPE OF WORK Site Survey Prior to construction, an archaeologist meeting the Secretary of the Interior's Standards for archaeology will survey the project corridor to determine whether historic archaeological resources associated with the old NPRR railroad are present. If resources are found, they will be recorded on State of California DPR 523 forms and submitted to the Northwest Information Center at Sonoma State University. Pre -construction Training and Alert Sheet A construction alert sheet visually describing the types of archaeological artifacts likely to be found in the San Rafael area will be prepared and circulated to all staff on the construction phase of the project. Prior to commencement of construction activities, construction staff will meet with an archaeologist meeting the Secretary of the Interior's standards for Prehistoric Archaeology to explain the agreed mitigation measures (MMs), discuss actions to take if cultural resources are found, and detail the obligations of the contractors under State law. Monitoring A/HC will provide a construction monitor during the ground -disturbing phase of construction. The archaeologist will monitor excavations that will reach more than 5 feet in depth, including street light and traffic signal excavation. The monitor will stop all activity within a 50 -foot radius of any prehistoric or historic archaeological resources that are found during construction until the nature and significance of the resource can be evaluated. 2 609 Aileen Street Oakland, CA 94609 (510) 654-8635 info@ahc-heritage.com ARCHAEOLOGICALMISTORICAL CONSULTANTS www.ahc-heritage.com If human remains are found during monitoring, the monitor will stop all activity within a 50 -foot radius, and the Marin County Coroner will be informed. If the remains appear to be Native American, the Native American Heritage Commission will be notified and invited to identify a Most Likely Descendant, who will make recommendations regarding reburial of the human remains. The monitor will, at minimum, have an BA or MA in archaeology, at least three years of field experience in California archaeology, and will meet the Secretary of the Interior's Standards for prehistoric archaeology. Monitoring Report After conclusion of construction, a monitoring report will be prepared for the City of San Rafael. The monitoring report will discuss monitoring methodology, summarize ground - disturbing activities, and identify any cultural materials found. ESTIMATED BUDGET The budget below assumes that two days of monitoring will be required. It is understood that the actual number of days required may be more or less, depending on the progress made by the contractor and the contractor's scheduling choices. Fixed Tasks Labor Staff Rate Hours Total Field Survey Principal $130.00 4 $520.00 Pre -Construction Training & Alert Sheet Principal $130.00 8 $1,040.00 Final Monitoring Report Principal $130.00 8 $1,040.00 Archaeological Monitoring Archaeologist $80.00 16 $1,280.00 SUBTOTAL 36.00 $3,880.00 Direct Costs Quantity Price Mileage 200 $0.575 $115.00 SUBTOTAL $115.00 TOTAL $3,995.00 Labor and costs are charged on a time and materials basis. If mitigation planning, test excavation, or mitigation excavation is required due to the discovery of archaeological deposits, including Native American burials, an addendum budget will be submitted at the appropriate time. 3 -NA RAP,QF bell o Y WITH P CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Public Works Project Manager: Iman Kayani for AM Extension: 3352 Contractor Name: ArchaeologicaUHistorical Consultants (A/HQ Contractor's Contact: Daniel Shoup Contact's Email: daniel.shoup@ahe-heritage.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor CliCk herC 10 ❑ enter a C.late. b. Email contract (in Word) and attachments to City 6/9/2020 Attorney c/o Laraine.Gittens@cityofsanrafael.org ❑x IKK 2 City Attorney a. Review, revise, and comment on draft agreement (:`lith here to and return to Project Manager enter a elate. ❑ b. Confirm insurance requirements, create Job on ClIck herd its PINS, send PINS insurance notice to contractor ellter 11 ❑ 3 Department Director Approval of final agreement form to send to 6/16/2020 ❑x BG contractor 4 Project Manager Forward three (3) originals of final agreement to 6/16/2020 © IKK contractor for their signature 5 Project Manager When necessary, contractor -signed agreement ❑x N/A agendized for City Council approval * *City Council approval required for Professional Services ❑X IKK Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Clicl; hers= to Date of City Council approval enter a date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City 6/22/2020 IKK Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed / agreement 8 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts)+ �/Z�j/Z�C(� Q� 9 City Manager/ Mayor Agreement executed by City Council authorized 7 �, 1 (} �l ZO City Clerk official 10 Attest signatures, retains original agreement and //kJ ON forwards copies to Project Manager b Al- LL l