2023 Agua Caliente Band of Cahuilla Indians - Tribal Monitoring - Dune Palms Bridge Project 2011-05MEMORANDUM
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DATE: 3/1/2023
TO: Jon McMillen, City Manager
FROM: Julie Mignogna, Management Analyst
RE: Agua Caliente Band of Cahuilla Indians - Dune Palms Road Bridge Project No. 2011-05 (per the NEPA and
CEQA documents) Native American Human Remains and Associated Items Treatment, Disposition, and
Monitoring
Please list the Contracting Party / Vendor Name, type of agreement to be executed, including any change orders or
amendments, and the type of services to be provided. Make sure to list any related Project No. and Project Name.
✓
Authority to execute this agreement is based upon:
Approved by City Council on
City Manager's signing authority provided under the City's Purchasing Policy
[Resolution No. 2019-021] for budget expenditures of $50,000 or less.
Department Director's or Manager's signing authority provided under the City's
Purchasing Policy [Resolution No. 2019-021] for budget expenditures of $15,000 and
$5,000, respectively, or less.
Procurement Method (one must apply):
Bid RFP n RFQ [ 3 written informal bids
Sole Source
Select Source U Cooperative Procurement
Requesting department shall check and attach the items below as appropriate:
401-0000-60188 20111205CT
Agreement payment will be charged to Account No.:
Agreement term: Start Date 3/1/2023 End Date 2/8/2024
Amount of Agreement, Amendment, Change Order, etc.: $49,350
REMINDER: Signing authorities listed above are applicable on the aggregate Agreement amount,
not individual Amendments or Change Orders!
Insurance certificates as required by the Agreement for Risk Manager approval
Approved by: N/A (LM) Date: 3/2/2023
Bonds (originals) as required by the Agreement (Performance, Payment, etc.)
Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s)
NOTE: Review the "Form 700 Disclosure for Consultants" guidance to determine if a Form 700 is
required pursuant FPPC regulation 18701(2)
Business License No.
Expires:
Requisition for a Purchase Order has been prepared (Agreements over $5,000)
NATIVE AMERICAN HUMAN REMAINS AND
No. 03-0u3-2u14-0u9
ASSOCIATED ITEMS TREATMENT, DISPOSITION,
AND MONITORING AGREEMENT
This NATIVE AMERICAN HUMAN REMAINS AND ASSOCIATED ITEMS
TREATMENT, DISPOSITION, AND MONITORING AGREEMENT ("Agreement") is made
and entered into as of February 8, 2023 by and between the Agua Caliente Band of Cahuilla
Indians, a federally recognized Indian tribe ("Agua Caliente Band of Cahuilla Indians" or
"Tribe") and the City of La Quinta, with offices at 78495 Calle Tampico La Quinta CA, 92253
("Client"). 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 removing the existing low-water
crossing of Dune Palms Road and building a 480-foot-long 86 feet wide four span bridge and as
more commonly referred to as the Dune Palms Road Bridge Improvement Project (the "Project")
and as more particularly described in Exhibit A to this Agreement, which is attached hereto and
incorporated herein by this reference. Client agrees to pay Tribe an estimated ($49,350.00) 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. 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 upon request. The City shall be referred to herein as the "CEQA Lead Agency."
Caltrans is the Project's lead agency under Section 106 of the National Historic Preservation Act
("NHPA") and is responsible for the implementation of 36 C.F.R. Park 800 and the regulations
implementing Section 106 for the Project. The Client shall provide a copy of this Agreement to
Caltrans upon request. Caltrans shall be referred to herein as the ("Federal Lead Agency.")
R Purpose. The purpose of this Agreement is to formalize procedures for the
treatment of Native American human remains, as well as 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. 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.
4832-6236-1466, v. 1
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.
II. TREATMENT AND DISPOSITION OF NATIVE AMERICAN HUMAN REMAINS
AND ASSOCIATED ITEMS (FEE LANDS)
A. Cultural Affiliation. The Tribe has identified 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. 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. Client shall immediately
contact both the Coroner and Tribe or cause the Lead Agency to do the same if 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 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 Tribe has been designated
the MLD, the following provisions shall apply to the Parties:
4832-6236-1466, v. 1
1. 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 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. 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 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 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 Tribe. Native
American human remains and Associated Items that are discovered on the Project site are subject
to consultation between Client and Tribe regarding appropriate treatment. 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. Client
waives any and all claims to ownership of Associated Items that may be found on the Project site.
4832-6236-1466, v. 1
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 be governed by the California Public Records
Act. The Parties shall withhold public disclosure of information related to such reburial, pursuant
to the specific exemption set forth in Section 7927.000 (formerly subdivision (r) of Section 6254)
of the California Government Code.
III. MISCELLANEOUS PROVISIONS
A. Description of Work. The description of the scope of work for Tribe's Cultural
Monitors for the Project is set forth in Exhibit B to this Agreement, which is attached hereto and
incorporated herein by this reference. Section I of Exhibit B specifies the duties and
responsibilities of Tribe's Cultural Monitors and other specified parties. Section II of Exhibit B
identifies the geographical area that Tribe's Cultural Monitors shall oversee.
B. Assignment. This Agreement shall not be assigned without the prior written
consent of Tribe.
C. Compensation. Tribe shall receive compensation, including authorized
reimbursements, for all work described in Exhibit B. The total estimated compensation for the
work shall not exceed forty-nine thousand three hundred and fifty dollars ($49,350.00).
Compensation for the work shall be in accordance with the Monitor Budget Worksheet attached
hereto as Exhibit C. Prior to the commencement of any monitoring work, Client shall deposit with
Tribe an initial retainer in the amount of fifty percent of the total estimated compensation set forth
above or twenty-four thousand six hundred seventy-five dollars ($24,675.00). When the retainer
drops below an amount equal to ten percent of the total estimated compensation or four thousand
nine hundred thirty-five dollars ($4,935.00), Client shall deposit an additional retainer in an amount
equal to the initial retainer. Tribe shall credit the retainer amounts toward the total estimated
compensation set forth above. Tribe will submit to Client a biweekly 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. If any portion of any amount owed is received
by Tribe after thirty (30) days of the date of any monthly itemized statement (the "Late Penalty
Date"), or if any portion of the amount owed is received by Tribe in funds that are not immediately
available, then a late payment penalty shall be due to Tribe. The late payment penalty shall be the
portion of the amount owed not received by the Late Penalty Date multiplied by a late factor. The
late factor shall be the lesser of: (i) The highest interest rate (in decimal value)
4832-6236-1466, v. 1
which may be levied by law for commercial transactions, compounded daily for the number of
days from the Late Penalty Date to and including the date that Client actually makes the payment
to Tribe, or (ii) 0.000407 per day, compounded daily for the number of days from the Late Penalty
Date to and including the date that the Client actually makes the payment to Tribe.
Tribe will be compensated at a rate of $125.00 an hour for the work contemplated in the
attached Exhibit B. A 30-minute unpaid lunch period shall be afforded to Tribe. Client agrees to
pay a five percent (5%) administrative fee for the work provided pursuant to this Agreement. Tribe
will invoice Client for any overtime worked at a rate of $187.50 per hour for any time worked over
forty (40) hours within a given work week. The Client shall announce if there are work stoppages
at a minimum twelve (12) 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 Project proponents, and any person or entity obligated
to comply with environmental and cultural or archaeological resource protection laws applicable
to the Project.
E Compliance with Laws. Client shall comply with all applicable federal and state
laws. Nothing in this Agreement shall excuse 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. Indemnification. Client hereby agrees to fully defend, indemnify, and hold Tribe,
Tribal members, the Tribal Council, each member thereof, and Tribe's officials, directors, officers,
employees, designees, representatives, and agents harmless from and against any and all claims,
suits, actions, damages, losses, liabilities, expenses, costs (including without limitation, reasonable
attorney's fees and court costs), and/or judgments of every nature or description arising from, or
in any way attributable to or related to, the negligence or willful misconduct of Client hereunder,
including Client's officers, employees, agents, principals, shareholders, directors, and
subcontractors. The Tribe hereby agrees to fully defend, indemnify, and hold Client and its
officials, directors, officers, employees, designees, representatives, and agents harmless from and
against any and all claims, suits, actions, damages, losses, liabilities, expenses, costs (including
without limitation, reasonable attorney's fees and court costs), and/or judgments of every nature
or description arising from, or in any way attributable to or related to, the negligence or willful
misconduct of the Tribe hereunder, including the Tribe's officers, employees, agents, principals,
shareholders, directors, and subcontractors.
4832-6236-1466, v. 1
G. Entirety. This Agreement and Exhibits A. B. and C 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.
IL 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.
L 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 February 8, 2023 and will end on
February 8, 2024.
K Governing Law; Venue. This Agreement shall be interpreted, construed, and
governed both as to validity and to performance of the Parties in accordance with the laws of the
State of California. Legal actions concerning any dispute, claim, or matter arising out of or in
relation to this Agreement shall be instituted in the Superior Court of the County of Riverside,
State of California, or any other appropriate court or dispute resolution tribunal in such county,
and the Parties covenant and agree to submit to the personal jurisdiction of such court in the event
of such action.
Iy Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, and such counterparts shall constitute one and the same
instrument.
This Agreement is entered into on the Agua Caliente Indian Reservation, as of the day and
year first above.
AGUA CALIENTE BAND OF CAHUILLA The City of La Quinta
INDIANS
By: �C�2.GC'�GCc. �a�,c�—��e�.�rL By: 3\ \
Its: Director of Historic Preservation
its:
doh Vle-l-tile G gavicc"
APPROVED AS TO FORM:
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
4832-6236-1466, v. 1
0'
E
EXHIBIT A
Dune Palms Road Bridge Improvement Project
Dune Palms Road Between Highway 111 and Westward Ho Dr.
Map Contents
Area of Potential Effects
Riverside County Parcels 2
Construction Limits (ADI)
Staging Area
—•—•— Site Boundary P33-16950
— — — — Site Boundary P33-08692
Steven Hdm, • rcipal Investigator, Historic Archaeolog)t bate
itt5t�
David Lee, istrict Local Assistance Planner Date
600010009
0039000,
Map !date. l U/LJ/LU I
Photo Source: NAIP 2014
Per Steven Holm portions of the APE and ADI have
been modified to match the Riverside County GIS parcel boundaries.
2 Per Steven Holm portions of the Riverside County
GIS parcel boundaries have been modified to match the APE.
600390023
j l t
8'0003002g
600030004
Site Map
Dune Palms Road
Low Water Crossing
Replacement Project
BLRKS-5433(014)
WESTWARD HO bR
60004001
600030021 '60004002
. ,
gr
60004002
4
▪ J 600030019 a 1
• *J Rai '-4_1.
i . tT2iL�
trtc"'
110 irk WO!
t If tat
r
60004002
60004000
' 60004000
160004000
60004000
60004000
60004000
60004000
60004000E
Meters
Area of Potential Effects
Dune Palms Road
4832-6236-1466, v. 1
EXHIBIT B
CULTURAL MONITORING OF GRADING AND
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
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 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 THPO 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 Dune Palms Road Bridge Improvement
Project, 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. Only Cultural Monitors appointed by the Agua Caliente
Band of Cahuilla Indians Monitoring Program will be used on the Project.
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), 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 Client to 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 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 Client shall
provide special training if required.
4832-6236-1466, v. 1
Date: February 8, 2023
Project Name:
Project Address:
Contact name:
Email:
Billing Address
Phone Nos.:
EXHIBIT C
MONITOR BUDGET WORKSHEET
Agua Caliente Band Of Cahuilla Indians
Historic Preservation Office -Monitoring Program
Project Start Date: February 14, 2023
Dune Palms Road Bridge
Dune Palms Road
Between HWY 111 and Wesward Ho Dr.
La Quinta, CA 92253
Jon McMillen (City Manager)
jmcmillen@laquintaca.gov
78495 Calle Tampico
La Quinta, CA 92253
(760) 777-7000
Contract No. 03-003-2014-009
The worksheet below is to estimate costs for Aqua Caliente's total number of work days estimated for the
Proiect. An invoice will be sent on a biweekly basis from the Controller's Office and will include a 5%
Administrative Fee. A 50% retainer is required prior to orovidina services. An overtime rate of $187.50 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.
Total #
of Days*
Total
1,000.00
1
Grub & Clear
1 Monitor (s) for
1 Days @ 8 hr days
8 Hours @ $125 00/hr
1 days
8 hours
1
2
Grading & Pad Preparation
1 Monitor (s) for
23 Days @ 8 hr days
184 Hours @ $125.00/hr
23 days
184 hours
23
23,000.00
3
OTHER Utility Installation
23 Days @ 8 hr days
184 Hours @ $125.00/hr
23 days
184 hours
23
23,000.00
4
Administrative Fee
5 %
2,350.00
Subtotal
47
49,350.00
"# of monitors x # of days
TOTAL
$49,350.00
/", Initial
Initial
4832-6236-1466, v 1