2019 Agua Caliente Band of Cahuilla Indians - Tribal Monitoring - Eisenhower Draing Project 2015-12Bta Qaiara
- — GENI nfrhr DESERT —
MEMORANDUM
TO: Frank J. Spevacek, City Manager
FROM: Julie Mignogna, Management Analyst
DATE: June 211 2019
RE: Re -execution of Agreement for Contract Services not to exceed
$25,000 with Agua Caliente Band of Cahuilla Indians to provide
Tribal Monitoring Services for the Eisenhower Drainage Project
No. 2015-12B.
Attached for your signature is the agreement referenced above.
Please sign the attached agreement(s) and return to City Clerk for processing and
distribution.
Requesting department shall check and attach the items betow as appropriate:
X Contract payments will be charged to account number: 401-0000-60108 15162T
X Amount of Agreement, Amendment, Change Order, etc.: Not to exceed $25,000.00
N/A A Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s) is attached with
no reportable interests in LQ or reportable interests
A Conflict of Interest Form 700 Statement of Economic Interests is not required because this Consultant
does not meet the definition in FPPC regulation 18701(2).
Authority to execute this agreement is based upon:
Approved by the City Council on
X City Manager's signature authority provided under Resolution No. 2018-014 for budgeted expenditures
of $50,000 or less. This expenditure is $25,000.00 and authorized by Danny Castro, Design and
Development Director. [Council, Director, etc]
Initial to certify that 3 written informal bids or proposals were received and considered in selection
The following required documents are attached to the aareement:
N/A Insurance certificates as required by the agreement (approved by Risk Manager on date)
N/A Performance bonds as required by the agreement (originals)
N/A City of La Quinta Business License number
X A requisition for a Purchase Order has been prepared (amounts over $5,000)
X A copy of this Cover Memo has been emailed to Finance (Sandra)
Revised May 2017
TRIBAL HISTORIC PRESERVATION OFFICE
5401 Dinah Shore Drive
PALM SPRINGS, CA 92264
(760) 699-6800
FAX (760) 669-6924
June 20, 2019
Frank Spevacek, City Manager
City of La Quinta
78495 Calle Tampico
La Quinta, CA 92253
(760) 777-7000
fspevacek@laquintaca. gov
RE: Eisenhower Drive Retention Basin Project, La Quinta, CA 92253; THPO Project No. 03-003-2017-
006
Dear Mr. Spevacek,
The Agua Caliente Band of Cahuilla Indians will provide Cultural Monitors for the project identified above.
Attached to this letter are the Monitoring Contract, and an Estimated Budget to perform this work.
Please review these documents, and if you concur, please so indicate by signing the contract. When your
signature is affixed to the contract, it will constitute an agreement between the Agua Caliente Band of Cahuilla
Indians and the City of La Quinta. Please keep a copy for your records and send the second original back to:
Patricia Garcia -Plotkin, Director,
Agua Caliente Band of Cahuilla Indians
5401 Dinah Shore Drive
Palm Springs, CA 92264.
If you have any questions or require additional information concerning this project, please contact me at 760-
699-6907. You may also email me at We look forward to working with you
on this task.
Sincerely,
Patricia Garcia -Plotkin
Director of Historic Preservation
AGUA CALIENTE BAND OF CAHUILLA INDIANS
Attachments: 1. Monitoring Contract (2)
No.03-003-2017-006
NATIVE AMERICAN HUMAN REMAINS AND
ASSOCIATED ITEMS TREATMENTAND DISPOSITION
AGREEMEMT AND MONITORING CONTRACT
This NATIVE AMERICAN HUMAN REMAINS AND ASSOCIATED ITEMS
TREATMENT AND DISPOSITION AGREEMENT ("Agreement") is made and entered into as
of May 15, 2019 by and between the Agua Caliente Band of Cahuilla Indians, a federally
recognized Indian tribe ("Agua Caliente Band of Cahuilla Indians" or the "Tribe") and the City
of La Quinta, with offices at 78495 Calle Tampico, La Quinta, California 92253 ("Client"). The
Tribe and Client are sometimes referred to individually as a "Party," and collectively as the
"Parties."
I. GENERAL PROVISIONS
A. Subject Matter. This Agreement concerns the development of a 10-acre retention
basin located at the southwest corner of Eisenhower Drive and Coachella Drive in La Quinta,
California, 92253 and as more commonly referred to as the Eisenhower Drive Retention Basin
Project (the "Project") and as more particularly described in Exhibit A to this Agreement, which
is attached hereto and incorporated herein by this reference. The Client agrees to pay Tribe an
estimated $14,105.21 as consideration for the work provided pursuant to this Agreement, and as
described more fully in Exhibit C, which is attached hereto and incorporated herein by this
reference, but in no event and not withstanding any provisions in this Agreement to the contrary,
Client shall have no obligation to pay an amount is excess of Twenty -Five Thousand Dollars
($25,000) for the Tribe's services provided hereunder except upon the Parties' mutual agreement
and an amendment of this Agreement pursuant to section III.G. below. The Client shall provide a
copy of this Agreement upon request to the Riverside County Coroner's Office (the "Coroner").
The City of La Quinta is the Project's lead agency pursuant to the California Environmental Quality
Act ("CEQA") (California Public Resources Code, §§ 21000 et seq.), and responsible for the
environmental compliance of this Project. The Client shall provide a copy of this Agreement to
the City of La Quinta upon request. The City of La Quinta shall be referred to herein as the "Lead
Agency."
B. Purpose. The purpose of this Agreement is to formalize procedures for the
treatment of (1) Native American human remains, as well as (2) associated grave goods and
cultural items ("Associated Items"), in the event any are discovered in conjunction with the
development of the Project. Such Project development may include archaeological studies,
excavation, geotechnical investigations, grading, or any other ground disturbing activity. (3)This
Agreement also formalizes procedures for cultural monitoring during archaeological studies,
excavation, geotechnical studies, grading, and any other ground disturbing activities during Project
development. This Agreement is entered into with the acknowledgment by the Parties of the high
level of cultural sensitivity of the Project location and its proximity to recorded cultural sites.
C. Scope. This Agreement shall apply to lands owned in fee, lands owned by the
United States, and lands owned by the United States for the benefit of an Indian tribe or its
members.
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4832-6236-1466, v 1
11. TREATMENT AND DISPOSITION OF NATIVE AMERICAN HUMAN REMAINS
AND ASSOCIATED ITEMS (FEE LANDS)
A. Cultural Affiliation. The Parties agree that the Project area set forth in Exhibit A
to this Agreement consists of land that has been traced to, and traditionally occupied by, the Agua
Caliente Band of Cahuilla Indians. The Tribe has designated the Tribal Historic Preservation
Office ("THPO") to act on its behalf with respect to the provisions of this Agreement. Any Native
American human remains and Associated Items that are discovered on fee lands in conjunction
with the development of this Project shall be treated in accordance with this Section.
B. Coordination with the County Coroner's Office. The Client shall immediately
contact both the Coroner and the Tribe or cause the Lead Agency to do the same if the Client or
Lead Agency discover any human remains during implementation of the Project. The Parties
acknowledge and agree that if the Coroner recognizes the human remains to be those of a Native
American, or has reason to believe that the human remains are those of a Native American, the
Coroner will notify the Native American Heritage Commission ("NAHC") within twenty-four
(24) hours of the determination, as required by subdivision (c) of Section 7050.5 of the California
Health and Safety Code.
C. Most Likely Descendant. In the event that Native American human remains
and/or Associated Items are discovered during the development of the Project, the Parties agree
that the determination of Most Likely Descendant ("MLD"), under Section 5097.98 of the
California Public Resources Code, shall be made by the NAHC. The Coroner will be called upon
to make a determination if the remains are human in nature, and will determine whether there is a
forensic requirement. Once the MLD is designated, the MLD will make all decisions regarding
the disposition of the Native American human remains. If the Tribe has been designated the MLD,
and if the Coroner, in consultation with the THPO, determines that there is no forensic requirement,
then the Native American human remains and/or Associated Items shall be subject to Tribal laws
and policies, including the Tribal Historic Preservation Ordinance.
D. Treatment and Disposition of Human Remains. In the event that Native
American remains are found during the development of the Project and the Tribe has been
designated the MLD, the following provisions shall apply to the Parties:
1. The Tribe, as MLD, shall be allowed, pursuant to subdivision (a) of Section
5097.98 of the California Public Resources Code, to (i) inspect the site of the discovery; and,
notwithstanding subdivision (a) of Section 5097.98 of the California Public Resources Code, to
(ii) make determinations as to how the Native American human remains and Associated Items
shall be treated and disposed of with appropriate dignity.
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4832-6236-1466, v 1
2. The Tribe, as MLD, shall complete its inspection within forty-eight (48)
hours of being granted access to the site of discovery, as required by subdivision (a) of Section
5097.98 of the California Public Resources Code. The Parties agree to discuss in good faith what
constitutes "appropriate dignity," as that term is used in the applicable statutes.
3. Disposition and treatment of Native American human remains and
Associated Items shall be accomplished in compliance with subdivisions (a) and (b) of Section
5097.98 of the California Public Resources Code, except as set forth herein. The Tribe, as MLD,
in consultation with Client, shall make the final discretionary determination regarding the
appropriate disposition and treatment of Native American human remains and Associated Items.
4. The Parties are aware that the Tribe may wish to rebury the Native
American human remains and Associated Items on or near the site of their discovery in an area
that shall not be subject to future subsurface disturbances. Client shall accommodate on -site
reburial in a location mutually agreed upon by the Parties.
5. The term "Native American human remains" encompasses more than
human bones because the Tribe's traditions periodically necessitated the ceremonial burning of
human remains. Associated Items are those artifacts associated with any Native American human
remains. These items and their ashes are to be treated in the same manner as human bone fragments
or bones that remain intact.
E. Treatment and Disposition of Associated Items. Native American human
remains and Associated Items reflect traditional religious beliefs and practices of the Tribe. Native
American human remains and Associated Items that are discovered on the Project site are subject
to consultation between the Client and Tribe regarding appropriate treatment. The Tribe's consent
shall be obtained to allow the use of temporary curation facilities, which may temporarily house
the collections until the final disposition is agreed upon. Where appropriate and agreed upon in
advance, the archaeologist may conduct analyses of certain artifact classes, if required by CEQA,
in furtherance of the mitigation measures or conditions of approval for the Project. This may
include, but is not limited or restricted to, shell, bone, ceramic, stone, or other artifacts. The Client
waives any and all claims to ownership of Associated Items that may be found on the Project site.
F. Non -Disclosure of Reburial Location. It is understood by the Parties that unless
otherwise required by law, the site of any reburial of Native American human remains and/or
Associated Items shall not be disclosed and shall not be governed by public disclosure
requirements of the California Public Records Act. The Coroner, Parties, and Lead Agency shall
withhold public disclosure of information related to such reburial, pursuant to the specific
exemption set forth in subdivision (r) of Section 6254 of the California Government Code.
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4832-6236-1466,v 1
III. MISCELLANEOUS PROVISIONS
A. Description of Work. The description of the scope of work for the Tribe's Cultural
Monitors for the Project is set forth in Exhi zit B to this Agreement, which is attached hereto and
incorporated herein by this reference. Section I of Lihibit B specifies the duties and
responsibilities of the Tribe's Cultural Monitors and other specified parties. Section II of Exhibit
11 identifies the geographical area that the Tribe's Cultural Monitors shall oversee.
B. Assignment. This Agreement shall not be assigned without the prior written
consent of the Tribe.
C. Compensation. Tribe shall receive compensation, including authorized
reimbursements, for all work described in Exhibit JR,. The total estimated compensation for the
work shall not exceed fourteen thousand, one hundred five dollars and twenty-one cents
($14,105.21). Compensation for the work shall be in accordance with the Monitor Budget
Worksheet attached hereto as Exhibit C. The Client will supply the Tribe with a Purchase Order
for monitoring services. Tribe will submit to Client a bi-weekly itemized statement, which
indicates the work completed, any amounts owed, and any credits. The statement will describe the
work and supplies provided since the initial commencement date, or since the start of the
subsequent billing period, as appropriate, through the date of the statement. Client shall pay the
undisputed portions of statements within thirty (30) days of receipt, and will promptly consult with
Tribe to resolve any portions that may be in dispute.
The Tribe will be compensated at a rate of $85.00 an hour for the work contemplated in
the attached Exhibit B. In addition, the Client shall reimburse mileage costs at the federal mileage
rate for travel to and from the Project site location. A 30-minute unpaid lunch period shall be
afforded to the Tribe. The Client agrees to pay a 15% administrative fee for the work provided
under this Agreement. An overtime rate of $127.50 per hour will be applied to any time worked
over 40 hours within a given work week. The Client shall announce if there is work stoppages at
a minimum four hours before the scheduled start time. If there are unannounced work stoppages
or cancellation of scheduled work (i.e. cancellation of work due to weather conditions) that are not
due to the Cultural Monitor's actions the Client shall pay the Tribe a minimum half -day charge
(four hours).
D. Successor and Assigns. This Agreement shall be binding upon and inure to the
benefit of the heirs, successors, representatives, executors, administrators, and assignees of the
Parties, including subsequent land owners or Proj ect proponents, and any person or entity obligated
to comply with environmental and cultural or archaeological resource protection laws applicable
to the Project.
4832-6236-1466, v. 1
E. Compliance with Laws. The Client shall comply with all applicable federal and
state laws. Nothing in this Agreement shall excuse the Client from any obligation under any
applicable federal or state laws, including, but not limited to: CEQA and applicable regulations of
the CEQA Guidelines; California Public Resources Code,§§ 5097.98; 5097.99, and 5097.991;
California Health and Safety Code, § 7050.5, subd. (c); California Government Code, § 6254; the
National Historic Preservation Act, 54 U.S.C. §§ 3001 et seq. and its implementing regulations;
the Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001 et seq. and its
implementing regulations; and the First Amendment to the United States Constitution. Nothing in
this Agreement is intended to make any of the above -referenced laws applicable where such laws
would otherwise be inapplicable.
F. Reciprocal Indemnification Obligations. Tribe agrees to defend, indemnify and
hold harmless the Client and its respective officers and employees from and against liability for all claims,
losses, damages, costs, and expenses, including reasonable attorneys' fees, to the extent such claims,
losses, damages, costs, and expenses are caused by the intentional misconduct or the negligent acts, errors, or
omissions of the Tribe or its respective officers, employees, agents, representatives, or
contractors. Client agrees to defend, indemnify and hold harmless the Tribe and its respective officers,
employees, agents, members, and representatives from and against liability for all claims, losses, damages,
costs, and expenses, including reasonable attorneys' fees, to the extent such claims, losses, damages, costs,
and expenses are caused by the intentional misconduct or negligent acts, errors, or omissions of Client or its
officers, employees, agents, representatives, or contractors.
G. Entirety. This Agreement and Exh i bit A B. a nc attached hereto constitute the
entire agreement between the Parties with respect to the subject matter hereof. No amendment or
modification of this Agreement shall be effective unless in writing and executed by both Parties.
H. Damages. Except as set forth in this Agreement, neither Party shall be liable to the
other, in any event, for any special or incidental damages arising out of the work performed
hereunder, whether arising in contract, tort, or otherwise. Notwithstanding the preceding sentence,
if either Party is the prevailing party by a final judgment (including final decision on any appeal) from
a judicial dispute in a court of competent jurisdiction against the other Party for an action based on
any claim arising under this Agreement or based on tort or otherwise, the maximum award for any and
all damages that the prevailing Party may receive against the other Party shall be no more than the total
compensation that the Tribe is entitled to receive pursuant to Paragraph 1.A and Exhibit C of this
Agreement.
I. Limitation on Scope. This Agreement is unique to the Project only and does not
set a precedent for other projects.
J. Term. This Agreement shall commence on May 15, 2019 and will end on May 14,
2020.
4832-6236-1466,v 1
This Agreement is entered into on the Agua Caliente Indian Reservation, as of the day and
year first above.
AGUA CAMENIFE BAND OF CAHUILLA CITY OF LA QUINTA
Its:
4832-6236-1466,, 1
FRANK J. SPFVA K, City Manager
Its' City of Lauirrta, alifornia
0
EXHIBIT A
Eisenhower Drive Retention Basin
SW corner of Eisenhower Drive & Coachella Drive
La Quinta, CA 92253
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EXHIBITB
CULTURAL MONITORIN.Q QF GRADIFNGAND
GROUND DISTURBING ACTIVITIES
I. Specifications
Given the nature and sensitivity of the archaeological sites and cultural resources that
are in or may be within the Project area, the Agua Caliente Band of Cahuilla Indians
(in conjunction with Twenty -Nine Palm Band of Mission Indians) shall provide the
cultural monitoring, consultation, and facilitation for this Project during archaeological
studies, excavation, geotechnical studies, grading, and any other ground disturbing
activities during Project development. Cultural Monitors will work in concert with the
archaeologists hired by the Client and Project engineers. The Cultural Monitors or
Project archaeologists will be empowered to halt all earthmoving equipment in the
immediate area of discovery when Native American human remains or Associated
Items are identified until further evaluation can be made in determining their
significance. It is understood that all surface and subsurface artifacts of significance
shall be collected and mapped during this operation following standard archaeological
practices. After discovery of Native American human remains or Associated Items
discussions between the Cultural Monitors and Project archaeologist will take place to
determine the significance of the situation and best course of action for avoidance,
protection of resources, or data recovery as applicable. The scope of work for this
Project requires monitoring once grading or other earthmoving begins (i.e., from the
beginning).
II. Project to be Monitored
Monitoring shall encompass the area known as Eisenhower Drive Retention Basin, as
indicated in Exhibit A of this Agreement and shall be known as the Project area. It is
agreed that monitoring shall be allowed for all archaeological studies, excavation,
geotechnical studies, grading, and any other ground disturbing activities during Project
development.
III. Cultural Monitors
The Parties to this Agreement anticipate the need for a Cultural Monitoring crew
consisting of one (1) Cultural Monitor. If the scope of the work changes (e.g.,
inadvertent discoveries of cultural resources or simultaneous grading to require
additional monitors), the Client agrees to directly compensate the work of additional
4832-6236-1466,v 1
Cultural Monitors to the originally agreed upon crew of one (1) Cultural Monitor. The
compensation rate shall be made directly from the Client to the Tribe. If Native
American human remains are found, the coordination of the reburial of those remains
and any Associated Items shall be conducted in accordance with this Agreement.
IV. Responsibility
It is the responsibility of the Client to ensure Cultural Monitors have been trained in
general safety precautions connected with working on a construction site. The THPO
shall be notified if other special safety concerns must be observed in advance and the
Client shall provide special training if required.
4832-6236-1466,v 1
EXHIBIT C
MONITOR BUDGET WORKSHEET
Agua Caliente Band Of Cahuilla Indians
Historic Preservation Office -Monitoring Program
Date: April 29, 2019 Project Start Date: May 15, 2019
Project Name: Eisenhower Drive Retention Basin
Project Address: SW corner of Eisenhower Dr. & Coachella Dr
La Quinta, CA 92253
Contact name: Frank Spevacek, City Manager Contract No. 03-003-2017-006
City of La Quinta
Billing Address 78495 Calle Tampico, La Quinta, California 92253
fspevacek(O lap uintaca.gov
Phone Nos.: (760) 777-7000
The worksheet below is to estimate costs for A ua Caliente's half of the total number of work days estimated for
the Project, Cultural monitoring. will be shared with Twenty -Nine Palms Band of Mission Indians. The Client will
supply the Tribe with a Purchase Order for monitoring services. An invoice will be sent on a bi-week!y basis
from the Controller's Office and will include a 15% Administrative Fee. An overtime rate of $127.50 per hour will
be applied to any time worked over 40 hours. The Client shall pay the Tribe a minimum half -day four hours for
last minute cancellations.
nitial
Total #
Total
1
Grubbing
of Days*
2.5
1 Monitor (s) for
1 days
2.5 Days @ 8 hr days
20 hours
20 Hours @ $85.00/hr
1,700.00
2
Grading
1 Monitor (s) for
15 Days @ 8 hr days
15 days
15
120 Hours @ $85.00/hr
120 hours
10,200.00
3
Utility Installation
1 Monitor (s) for
0 Days @ 8 hr days
0 days
0
0 Hours @ $85.00/hr
0 hours
0.00
4
Mileage (round trip)
1 Monitor (s) for
18 roundtrips @ 35.0 miles
18 trips
630 miles @ $.58/mile
630 miles
365.40
Subtotal
17.5
12,265.40
15%Administration Fee
1 1,839.81
14,105.21
V of monitors x # of days
TOTAL
$14,105.21
10