HomeMy WebLinkAbout24F011 - Agua Caliente Band of Cahuilla IndiansCONTRACT ABSTRACT
Contract/Amendment
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Contract Abstract Form Rev 8.16.23
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Cultural Monitoring Agreement
Agua Caliente Band of Cahuilla Indians
Michael Morales, THPO Operations Manager
mimorales@aguacaliente.net
South Palm Canyon Drive Bridge Replacement at Tahquitz Creek
Channel, City Project 12-02
$115,000
January 9, 2025 - January 8, 2026
N/A
Engineering Services
Joel Montalvo/Francisco Jaime X8750
January 9, 2025, Item 1X
25F011
N/A
Yes
N/A
N/A
Department
-
No
Agreement is attached.
N/A
01/14/2024 Vonda Teed
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No. 02-002-2015-003 NATIVE AMERICAN HUMAN REMAINS AND
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 January 9, 2025 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
Palm Springs, with offices at 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92262 (“Client”
or “City”). 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 bridge repair work at South Palm
Canyon Drive and the Tahquitz Creek Channel which includes bridge replacement (State Bridge
No. 56C0408), new concrete foundations, removal and replacement of channel walls, and concrete
slope lining and as more commonly referred to as the South Palm Canyon Drive Bridge
Replacement at the Tahquitz Creek Channel (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 $115,000 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”). Client 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.
Caltrans, District 8, on behalf of the Federal Highway Administration, has been designated 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 City of Palm Springs shall be referred to herein as the “Lead
Agency.”
B. 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.
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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II. 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. 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 discovers 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. If 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 decide 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. If 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:
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
consult with the Client 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
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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 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, if subject to the specific
exemption set forth in subdivision (r) of Section 6254 of the California Government Code.
III.COMPLIANCE WITH THE ARCHAEOLOGICAL RESOURCES PROTECTION
ACT AND NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT
(PUBLIC, INDIAN, FEDERAL, AND TRIBAL LANDS)
A. ARPA Compliance. To the extent a portion of Project development is located on
“public lands” or “Indian lands,” as those terms are defined in 16 U.S.C. § 470bb, Client shall
not, without first consulting with Tribe, excavate, remove, damage, or otherwise alter or deface,
or attempt to excavate, remove, damage, or otherwise alter or deface any archaeological resource
located on said lands unless such activity is pursuant to a permit issued under 43 C.F.R. § 7.8 or
exempted by 43 C.F.R. § 7.5(b). As used in this Section, the term “archaeological resource” has
the meaning ascribed to it in 16 U.S.C. § 470bb.
B. NAGPRA Compliance. To the extent a portion of Project development is located
on “federal lands” or “tribal lands” as those terms are defined in 25 U.S.C. § 3001, Client shall
comply with the requirements of the Native American Graves Protection and Repatriation Act (25
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U.S.C. §§ 3001 et seq.), as implemented by 43 C.F.R. §§ 10.4 to 10.6, which include, but are not
limited to: (i) compliance with the requirements for the intentional removal from or excavation of
Native American cultural items from federal or tribal lands for the purposes of discovery, study, or
removal of such items; and, in the case of inadvertent discovery, (ii) notification in writing of the
applicable Secretary of the federal department, or head of any other agency or instrumentality of
the United States, having primary management authority with respect to federal lands and the
appropriate Indian tribe with respect to tribal lands, if known or ascertainable, if the Client knows
or has reason to know that it has discovered Native American cultural items on federal or tribal
lands; and (iii) cessation of activities in connection with the discovery in in the area of discovery,
so long as any cessation shall not cause an undue delay of the Project. As used in this Section, the
term “cultural items” has the meaning ascribed to it in 25 U.S.C. § 3001.
IV. 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 either Party.
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 ONE HUNDRED FIFTEEN THOUSAND DOLLARS ($115,000).
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 FIFTY-SEVEN THOUSAND FIVE HUNDRED DOLLARS ($57,500). When the
retainer drops below an amount equal to ten percent of the total estimated compensation or
ELEVEN THOUSAND FIVE HUNDRED DOLLARS ($11,500), 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) 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
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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 fifteen percent (15%) 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
by a Cultural Monitor 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 landowners or Project proponents.
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. Each Party hereby agrees to fully defend, indemnify, and hold
the other Party 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 indemnifying Party hereunder, including the
indemnifying Party’s officers, employees, agents, principals, shareholders, directors, and
subcontractors.
G. Entirety. This Agreement and Exhibits A, B, C, and D 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.
I. Limitation on Scope. This Agreement is unique to the Project only and does not
set a precedent for other projects.
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J. Term. This Agreement shall commence on January 9, 2025, and will end on
January 8, 2026.
K. Termination. Client has the right to terminate or abandon any portion or all the
work under this Agreement by giving thirty (30) calendar days written notice to Tribe. Client shall
pay Tribe the reasonable value of services rendered for any portion of the work completed prior to
termination. Tribe shall not be entitled to payment for unperformed services and shall not be
entitled to damages or compensation for termination of work. Tribe may terminate this Agreement
for convenience upon thirty (30) calendar days’ written notice to Client.
L. Limited Waiver of Sovereign Immunity. By entering into this Agreement, Tribe
does not waive, limit, or alter its tribal sovereign immunity from unconsented suit, arbitration, or
other form of compulsory proceeding, whether judicial or otherwise, in any manner, to any extent,
or for any purpose, except as expressly set forth in this Section IV.L. Tribe does hereby waive its
tribal sovereign immunity to the extent provided below, but only on the terms and to the extent set
forth below, and subject to each and all the conditions and limitations set forth below.
1. This limited waiver is hereby provided in favor of Client only and in favor
of no other party whatsoever.
2. This limited waiver pertains to Tribe itself only, and not to any subordinate
entity, enterprise, affiliate, instrumentality, department, committee, officer, Tribal
Councilmember, agent, employee, representative, or other party holding any position or
performing any function for Tribe.
3. This limited waiver is provided for the sole purpose of allowing Client to
enforce as against Tribe the express duties and obligations undertaken by Tribe in this Agreement.
4. Before seeking to enforce any provision of this Agreement, as set forth
herein, Client shall first present a concise and simple written statement (“Notice of Dispute”) to
Tribe that sets forth: (i) the breach that Tribe has committed of one or more of Tribe’s express
duties and obligations under this Agreement (“Dispute”); (ii) the basis for said breach; and (iii) a
statement notifying Tribe that Tribe has failed to cure said breach beyond any applicable notice
and cure periods. Tribe, in consultation with Client, will then schedule a convenient time and
place, within fifteen (15) calendar days of its receipt of the Notice of Dispute, for authorized senior
representatives of Tribe and Client to meet and confer in person regarding the Notice of Dispute,
with the goal of reaching an informal resolution of the Dispute. If Tribe does not so schedule and
participate in such a meeting within such timeframe, then the requirement of this subsection shall
be deemed to have been met. If Client does not so schedule and participate in such a meeting
within such timeframe, Tribe, in consultation with Client, will then schedule a convenient time
and place, within fifteen (15) calendar days thereafter to meet and confer as described above. If
Client does not so schedule and participate in such second meeting, then Client may take no further
action on the Dispute or Client’s Notice of Dispute.
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5. If the meeting described in Section IV.L.4 following a Notice of Dispute is
unsuccessful in resolving the Dispute set forth in the Notice of Dispute or Tribe refuses to schedule
or participate in such meeting, then Tribe hereby provides a limited waiver of its tribal sovereign
immunity from unconsented proceedings in arbitration, but only as described and limited herein.
Client may file a demand for arbitration with the Judicial Arbitration and Mediation Services, Inc.
(“JAMS”) for binding arbitration of the Dispute in accordance with the JAMS Comprehensive
Arbitration Rules and Procedures. Unless the Parties agree otherwise, the arbitration shall be
before a single arbitrator who shall be a retired state court or federal court judge with experience
in commercial agreements involving Indian tribes. Discovery shall be allowed but consistent with
the Federal Rules of Civil Procedure and shall be concluded within sixty (60) calendar days of the
filing of the demand for arbitration. The arbitrator may not award interim relief but shall control
any discovery and the general conduct of the arbitration in accordance with the JAMS
Comprehensive Arbitration Rules and Procedures, without regard to any rule or provision which
could be construed as a limited or general waiver of sovereign immunity. The arbitrator shall have
the power and authority to hear all issues of law and of fact properly raised pursuant to the
procedures herein, and to grant legal and equitable remedies in accordance with the provisions of
this Agreement. The decision of the arbitrator shall be issued in writing and shall include findings
of fact, conclusions of law, and the reasons upon which the decision is based. The arbitrator shall
have no power or authority to vary or modify any terms or conditions of this Agreement, or to
decline or fail to follow applicable law.
Client’s Initials: _____
Date: ________________
Tribe’s Initials: _____ Date: ________________
6. If injunctive relief is sought and awarded, such relief may only compel Tribe
to perform an express obligation explicitly undertaken by it pursuant to this Agreement, or to
refrain from some action that it has explicitly promised not to take or perform pursuant to this
Agreement. If monetary relief is sought and awarded, such award (i) shall be for liquidated
damages only, (ii) shall not include compensatory, consequential, punitive, exemplary, or other
forms of damages, and (iii) shall include costs and attorney fees if awarded by the court or
Arbitrator.
7. If Tribe refuses to participate in the arbitration, or if the Arbitrator makes
an award in favor of Client, then, to the extent that the arbitration sought or the award made
conforms to the limitations provided herein, Tribe hereby waives its tribal sovereign immunity
from unconsented suit to allow Client to conduct appropriate proceedings in the Superior Court of
the State of California for the County of Riverside and all appellate courts thereof, the U.S. District
Court for the Central District of California and all appellate courts thereof, or the Agua Caliente
Tribal Court as against Tribe. In any such proceedings, the limitations provided in this Section
IV.L will apply, and the only relief available will be (i) an order to enforce the duty to arbitrate the
Dispute, (ii) an order to enforce the arbitrator’s award, and/or (iii) a judgment confirming,
modifying, correcting, or vacating the arbitrator’s award.
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M. Insurance. The Tribe shall procure and maintain for the duration of the Agreement
the insurance requirements contained in Exhibit D of this Agreement, which is attached hereto
and incorporated herein by this reference.
N. Non-Discrimination. In connection with its performance under this Agreement,
Tribe shall not discriminate against any employee or applicant for employment because of actual
or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of
origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation,
gender identity, gender expression, physical or mental disability, or medical condition (each a
“prohibited basis”). Tribe shall ensure that applicants are employed, and that employees are treated
during their employment, without regard to any prohibited basis. As a condition precedent to
Client’s lawful capacity to enter this Agreement, and in executing this Agreement, Client certifies
that its actions and omissions hereunder shall not incorporate any discrimination arising from or
related to any prohibited basis in any Tribe activity, including but not limited to the following:
employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship; and further, that Tribe is in full compliance with the provisions of Palm Springs
Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating
to non-discrimination in city contracting. The Parties acknowledge and agree that providing Indian
preference in employment, as defined under applicable federal laws such as the Indian Self-
Determination and Education Assistance Act (ISDEAA) and the Indian Health Care Improvement
Act (IHCIA), is a lawful and recognized exception to federal employment nondiscrimination laws,
including Title VII of the Civil Rights Act of 1964. As such, an Indian preference implemented
by Tribe shall not be construed as a violation of federal law or Section 7.09.040 of the Palm Springs
Municipal Code.
O. Conflict of Interest. The Tribe acknowledges that no officer or employee of the
City has or shall have any direct or indirect financial interest in this Agreement, nor shall the Tribe
enter into any agreement of any kind with any such officer or employee during the term of this
Agreement and for one (1) year thereafter. The Tribe warrants that the Tribe has not paid or given,
and will not pay or give, any third party any money or other consideration in exchange for
obtaining this Agreement.
[SIGNATURES ON THE FOLLOWING PAGE]
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This Agreement is entered into as of the day and year first above.
AGUA CALIENTE BAND OF CAHUILLA
INDIANS
By: __________________________________
Its: _________________________________
CITY OF PALM SPRINGS
By: __________________________________
Its: City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
APPROVED BY CITY COUNCIL
01/09/2025 Item 1X 25F011
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EXHIBIT A
PROJECT AREA MAP
B-4 Proposed Location of Boring
(With Depth in Feet)
(20.)r
40' - 80'
acale
B-1 (501
S. PALM CANYON DR De
_ 74) T°'°'"
1B-2 _j (501
I
(27)
I
PROPOSED BORING LOCATION MAP
South Palm Canyon Drive at Tahquitz Creek Channel Bridge Palm Springs, California
Date: May, 2017
By: MAW Job
No.: 140525P3
Figure: 1 CS ST, Inc.
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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 South Palm Canyon Drive Bridge Replacement at the
Tahquitz Creek Channel 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 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 notified of 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.
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EXHIBIT C
MONITOR BUDGET WORKSHEET Agua Caliente Band Of Cahuilla Indians Historic Preservation Office-Monitoring Program
Date: October 3, 2024 Project Start Date: January 15, 2024 Project Name: South Palm Canyon Drive Bridge Replacement at the Tahquitz C k Ch l Project Add South Palm Canyon Drive between Sunny Dunes Road and Mesquite Avenue Contact name: Scott C. Stiles Contract No. 02-002-2015-003 City of Palm Springs Billing Add 3200 E. Tahquitz Canyon Way Palm Springs, CA 92260 scott.stiles@palmsprings.gov Phone Nos.: (760) 322-8362
The worksheet below is to estimate costs for Agua Caliente's total number of workdays Project. An invoice will be sent on a biweekly basis from the Controller's Office and will i l d 15% Administrative Fee. A 50% retainer is required prior to providing services. An overtime rate hour will be applied to any time worked over 40 hours. The Client shall pay the Tribe a i i h lf d (f hours) for last minute cancellations.
1 Total # of Days* Total
Grub & Clear 1 Monitor (s) for 45 days 45 Days @ 8 hr days 360 hours 360 Hours @ $125.00/hr 45,000.00
2 Grading & Trenching 1 Monitor (s) for 45 days
45 Days @ 8 hr days 360 hours 360 Hours @ $125.00/hr 45,000.00
4 OTHER Miscellaneous 10 Days @ 8 hr days 10 days 80 Hours @ $125.00/hr 80 hours 10,000.00
5 Administrative Fee 15 % 15,000.00
Subtotal 115,000.00
TOTAL $115,000.00 Initial Initial
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EXHIBIT D
INSURANCE REQUIREMENTS
D.1 Types of Insurance. Tribe shall procure and maintain, at its sole cost and expense, the insurance
described herein. The insurance shall be for the duration of this Agreement and includes any extensions,
unless otherwise specified in this Agreement. The insurance shall be procured in a form and content
satisfactory to City. The insurance shall apply against claims which may arise from the Tribe's performance
of Work under this Agreement, including Tribe’s agents, representatives, or employees. In the event the
City Manager determines that the Work or Services to be performed under this Agreement creates an
increased or decreased risk of loss to the City, the Tribe agrees that the minimum limits of the insurance
policies may be changed accordingly upon receipt of written notice from the City Manager or his designee.
Tribe shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in
this Agreement. Except as otherwise authorized below for professional liability (errors and omissions)
insurance, all insurance provided under this Agreement shall be on an occurrence basis. The minimum
amount of insurance required shall be as follows:
A. Errors and Omissions Insurance. Tribe shall obtain and maintain in full force and effect
throughout the term of this Agreement, standard industry form professional liability (errors and omissions)
insurance coverage in an amount of not less than one million dollars ($1,000,000.00) per occurrence and
two-million dollars ($2,000,000.00) annual aggregate, in accordance with the provisions of this section.
(1) Tribe shall either: (a) certify in writing to the City that Tribe is unaware of any
professional liability claims made against Tribe and is unaware of any facts which may lead to such a claim
against Tribe; or (b) if Tribe does not provide the certification under (a), Tribe shall procure from the
professional liability insurer an endorsement providing that the required limits of the policy shall apply
separately to claims arising from errors and omissions in the rendition of services under this Agreement.
(2) If the policy of insurance is written on a “claims made” basis, the policy shall be
continued in full force and effect at all times during the term of this Agreement, and for a period of three
(3) years from the date of the completion of the Services provided hereunder. In the event of termination
of the policy during this period, Tribe shall obtain continuing insurance coverage for the prior acts or
omissions of Tribe while performing Services under the terms of this Agreement. The coverage shall be
evidenced by either a new policy evidencing no gap in coverage, or by obtaining separate extended “tail”
coverage with the present or new carrier or other insurance arrangements providing for complete coverage,
either of which shall be subject to the written approval by the City Manager.
(3) In the event the policy of insurance is written on an “occurrence” basis, the policy shall
be continued in full force and effect during the term of this Agreement, or until completion of the Services
provided for in this Agreement, whichever is later. In the event of termination of the policy during this
period, new coverage shall immediately be obtained to ensure coverage during the entire course of
performing the Services under the terms of this Agreement.
B. Workers’ Compensation Insurance. Tribe shall obtain and maintain, in full force and effect
throughout the term of this Agreement, workers’ compensation insurance in at least the minimum statutory
amounts, and in compliance with all other statutory requirements, as required by the State of California.
Tribe agrees to waive and obtain endorsements from its workers’ compensation insurer waiving subrogation
rights under its workers’ compensation insurance policy against the City and to require each of its
subconsultants, if any, to do likewise under their workers’ compensation insurance policies. If Tribe has no
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employees, Tribe shall complete the City’s Request for Waiver of Workers’ Compensation Insurance
Requirement form.
C. Commercial General Liability Insurance. Tribe shall obtain and maintain, in full force and
effect throughout the term of this Agreement, a policy of commercial general liability insurance written on
a per occurrence basis with a combined single limit of at least one million dollars ($1,000,000.00) and two
million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including
coverages for contractual liability, personal injury, independent Tribes, broad form property damage,
products and completed operations.
D. Business Automobile Insurance. Tribe shall obtain and maintain, in full force and effect
throughout the term of this Agreement, a policy of business automobile liability insurance written on a per
occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000.00) bodily
injury and property damage. The policy shall include coverage for owned, non-owned, leased, and hired
cars.
E. Employer Liability Insurance. Tribe shall obtain and maintain, in full force and effect
throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence
basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease.
D.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be
declared to and approved by the City Manager or his/her designee prior to commencing any work or services
under this Agreement. Tribe guarantees payment of all deductibles and self-insured retentions. City
reserves the right to reject deductibles or self-insured retentions more than $10,000, and the City Manager
or his/her designee may require evidence of pending claims and claims history as well as evidence of Tribe’s
ability to pay claims for all deductible amounts and self-insured retentions proposed more than $10,000.
D.3 Other Insurance Requirements. The following provisions shall apply to the insurance policies
required of Tribe under this Agreement:
A. For any claims related to this Agreement, Tribe’s coverage shall be primary insurance with
respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any
insurance or self-insurance maintained by the City and its officers, council members, officials, employees,
agents, and volunteers shall be more than Tribe’s insurance and shall not contribute with it.
B. Any failure to comply with reporting or other provisions of the policies, including breaches
of warranties, shall not affect coverage provided to City and its officers, council members, officials,
employees, agents, and volunteers.
C. All insurance coverage and limits provided by Tribe and available or applicable to this
Agreement are intended to apply to each insured, including additional insureds, against whom a claim is
made, or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other
agreement relating to the City, or its operations shall limit the application of such insurance coverage.
D. No required insurance coverages may include any limiting endorsement which substantially
impairs the coverages set forth in this Agreement (e.g., elimination of contractual liability or reduction of
discovery period), unless the endorsement has first been submitted to the City Manager and approved in
writing.
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E. Tribe agrees to require its insurer to modify insurance endorsements to delete any
exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no
obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements
of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and
submittal of certificates without required endorsements may delay commencement of the Project. It is
Tribe’s obligation to ensure timely compliance with all insurance submittal requirements as provided in this
Agreement.
F. Tribe agrees to ensure that subconsultants, and any other parties involved with the Project
who are brought onto or involved in the Project by Tribe, provide the same minimum insurance coverage
required of Tribe. Tribe agrees to monitor and review all such coverage and assumes all responsibility for
ensuring that such coverage is provided in conformity with the requirements of this section. Tribe agrees
that upon request, all agreements with subconsultants and others engaged in the Project will be submitted
to the City for review.
G. Tribe acknowledges and agrees that any actual or alleged failure on the part of the City to
inform Tribe of non-compliance with any insurance requirement in no way imposes any additional
obligations on the City nor does it waive any rights in this or any other regard.
H. Tribe shall provide proof that policies of insurance required in this Agreement, expiring
during the term of this Agreement, have been renewed or replaced with other policies providing at least the
same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration.
Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided
to City no later than ten (10) days prior to expiration of the lapsing coverage.
I. Requirements of specific insurance coverage features or limits contained in this section are
not intended as limitations on coverage, limits, or as a waiver of any coverage normally provided by any
given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains
to a given issue and is not intended by any party or insured to be limiting or all-inclusive.
J. The requirements in this section supersede all other sections and provisions of this
Agreement to the extent that any other section or provision conflicts with or impair the provisions of this
section.
K. Tribe agrees to provide immediate notice to City of any claim or loss against Tribe arising
out of the Work performed under this Agreement and for any other claim or loss which may reduce the
insurance available to pay claims arising out of this Agreement. City assumes no obligation or liability by
such notice but has the right (but not the duty) to monitor the handling of any such claim or claims if they
are likely to involve City, or to reduce or dilute insurance available for payment of potential claims.
L. Tribe agrees that the provisions of this section shall not be construed as limiting in any way
the extent to which the Tribe may be held responsible for the payment of damages resulting from the Tribe’s
activities or the activities of any person or person for which the Tribe is otherwise responsible.
D.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized
insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in
the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless such requirements
are waived in writing by the City Manager or his designee due to unique circumstances.
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D.5 Verification of Coverage. Tribe shall furnish City with both certificates of insurance and
endorsements, including additional insured endorsements, affecting all the coverages required by this
Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to
bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work
commences. City reserves the right to require Tribe’s insurers to provide complete, certified copies of all
required insurance policies at any time. Additional insured endorsements are not required for Errors and
Omissions and Workers’ Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability
Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance
Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the
certificate:
A. "The City of Palm Springs, its officials, employees, and agents are named as an additional
insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with
the City" may be included in this statement).
B. "This insurance is primary and non-contributory over any insurance or self-insurance the
City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed
with the City" may be included in this statement).
C. "Should any of the above-described policies be canceled before the expiration date thereof,
the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as,
“endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind
upon the company, its agents or representative" is not acceptable and must be crossed out.
D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's
waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder
on the policies. All certificates of insurance and endorsements are to be received and approved by the City
before work commences. All certificates of insurance must be authorized by a person with authority to bind
coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the
required documents prior to the commencement of work shall not waive the Tribe’s obligation to provide
them.
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