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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. 1 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. 2 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. 3 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 . 1, 1 .� rw � NIDPONlD 1 IR16MgM NBW rr�is�o[�n�vl 1�1 � 1 jl 1 1 I %Nxm udi"I ask" N. I 10 E %1lI Wi r "! Eisenhower Drive Flood Control Project j TERRA NOVA Retention Basin Layout r� La Qulnta, California 7 4832-6236-1466, v. 1 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