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HomeMy WebLinkAboutA6995 - AGUA CALIENTE BAND - SO PALM CYN BRIDGE, CP 08-26 TAHQUITZ CREEK LEVEE CERTIFICATION No.02-002-2015-003 CULTURAL RESOURCE TREATMENT AND DISPOSITION AGREEMEMT This CULTURAL RESOURCE TREATMENT AND DISPOSITION AGREEMENT ("Agreement") is made and entered into as of June 20, 2017 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 Palm Springs, Planning Department, with offices at 3200 E. Tahquitz Canyon Way, Palm Springs, California 92262 ("Client") (Agua Caliente Band of Cahuilla Indians and Client are sometimes referred to individually as a "Party," and collectively as the"Parties"). RECITALS A. Subject Matter: This Agreement concerns the Tahquitz Creek Channel Bridge on South Palm Canyon Drive located approximately 300 feet south of Sunny Dunes Road in the City of Palm Springs, which is in the City's right-of-way("ROW") and Riverside County Flood Control ROW, and commonly referred to as Geotechnical Boring for South Palm Canyon Drive Bridge Replacement at Tahquitz Creek Channel, (hereinafter referred to as the "Project") and as more particularly described in Exhibit A to this Agreement. Client agrees to pay the Tribe an estimated $680.00 as consideration for the work provided pursuant to this Agreement, and as described more fully in Exhibit C. Client, in cooperation with the California Department of Transportation ("Caltrans"), is conducting geotechnical studies for the proposed replacement of the existing structurally deficient bridge(State Bridge No. 56C0408)on South Palm Canyon Drive at Tahquitz Creek Channel. Client is the lead agency pursuant to the California Environmental Quality Act ("CEQA'; California Public Resources Code § 21000 et seq.). Caltrans, District 8, on behalf of the Federal Highway Administration,has been designated the Project's responsible federal agency pursuant to Section 106 of the National Historic Preservation Act("NHPA")and is responsible for the implementation of 36 C.F.R. Part 800 and the regulations implementing Section 106 for the Project and shall be provided with a copy of this Agreement upon request. The Riverside County Coroner's Office (hereinafter referred to as the "Coroner") shall also be provided with a copy of this Agreement upon request. B. Purpose: The purpose of this Agreement is to formalize procedures for the treatment of Native American human remains, grave goods, ceremonial items and any cultural artifacts, in the event that any are found in conjunction with development of the Project, including archaeological studies, excavation, geotechnical investigations, grading and any ground disturbing activity. This Agreement also formalizes procedures for Native American monitoring during archaeological studies, grading, geotechnical studies, and ground disturbing activities for the Project. This Agreement is entered into with regard to the level of cultural sensitivity of the Project location and its proximity to recorded cultural sites. C. Cultural Affiliation: All Parties agree that the Project area (see Exhibit A of this Agreement) consists of land that has been traced to and traditionally occupied by the Agua 1 ORIGINAL BID AND/OR AGREEMENT Caliente Band of Cahuilla Indians. The Agua Caliente Band of Cahuilla Indians 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, grave goods, ceremonial items, and cultural items (artifacts) that are found in conjunction with the development of this Project shall be treated in accordance with Section II, III and IV of this Agreement. D. Most Likely Descendant: In the event that human remains, and associated funerary items, are found advertently or inadvertently, during the development of the Project, all Parties agree that the determination of Most Likely Descendant ("MLD"), under California Public Resources Code § 5097.98 shall be made by the Native American Heritage Commission ("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 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 archaeological remains shall be subject to Tribal Policies.These are contained in Tribal Historic Preservation Organization and Policies (June 8, 2004), particularly in Chapter 4 titled Treatment of Disturbed Human Remains Policy. The THPO shall monitor compliance with these guidelines. AGREEMENT Incorporation of Recitals. All of the foregoing Recitals are accurate and are incorporated into this Agreement by reference. I. Coordination with the County Coroner's Office. Client shall immediately contact both the Coroner and the Agua Caliente Band of Cahuilla Indians and cause Caltrans to do the same in the event that any human remains are discovered during implementation of the Project. If the Coroner recognizes the human remains to be those of a Native American,or has reason to believe that they are those of a Native American,the Coroner shall ensure that notification is provided to the NAHC within twenty-four(24) hours of the determination, as required by California Health and Safety Code § 7050.5 (c). II. Treatment and Disposition of Remains. In the event that Native American remains are found during the development of the Project and the Agua Caliente Band of Cahuilla Indians has been designated the MLD,the following provisions shall apply to the Parties: A. The Agua Caliente Band of Cahuilla Indians shall be allowed, under California Public Resources Code § 5097.98 (a),to(1) inspect the site of the discovery and(2) make determinations as to how the human remains and grave goods shall be treated and disposed of with appropriate dignity. B. The Agua Caliente Band of Cahuilla Indians, as MLD, shall complete its inspection within twenty-four (24) hours of receiving notification from either Client or the NAHC, as required by California Public Resources Code § 5097.98 (a). The Parties 2 agree to discuss in good faith what constitutes "appropriate dignity" as that term is used in the applicable statutes. C. Reburial of human remains shall be accomplished in compliance with California Public Resources Code § 5097.98 (a) and (b). The Agua Caliente Band of Cahuilla Indians, as the MLD in consultation with Client, shall make the final discretionary determination regarding the appropriate disposition and treatment of human remains. D. All Parties are aware that the Agua Caliente Band of Cahuilla Indians may wish to rebury the human remains and associated ceremonial and cultural items (artifacts) 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. E. The term"human remains"encompasses more than human bones because the Agua Caliente Band of Cahuilla Indian's traditions periodically necessitated the ceremonial burning of human remains. Grave goods are those artifacts associated with any human remains. These items, and other funerary remnants and their ashes are to be treated in the same manner as human bone fragments or bones that remain intact. III. Treatment and Disposition of Cultural Items(Artifacts). Ceremonial items and items of cultural patrimony reflect traditional religious beliefs and practices of the Agua Caliente Band of Cahuilla Indians. Client agrees to return all Native American ceremonial items and items of cultural patrimony that may be found on the Project site to the Agua Caliente Band of Cahuilla Indians for appropriate treatment. In addition,the Agua Caliente Band of Cahuilla Indians requests the return of, and claims ownership to, all other cultural items (artifacts) that are recovered during the course of archaeological investigations. Client acknowledges that the Tribe must consent to the use of the temporary curation facility which will temporarily house the collections until the Tribe is prepared to curate the collections at one of its facilities. Where appropriate and agreed upon in advance, Client's archeologist 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 include shell, bone, ceramic, stone or other artifacts. Client waives any and all claims to ownership of Native American ceremonial and cultural artifacts that may be found on the Project site. IV. Non-Disclosure of Location Reburials. It is understood by all Parties to this Agreement that unless otherwise required by law, the site of any reburial of Native American human remains or cultural artifacts 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 be asked to withhold public disclosure 3 information related to such reburial, pursuant to the specific exemption set forth in California Government Code § 6254 (r). V. The Description of Work. Description of scope of work for monitors for the street improvements (i.e. slope grading, digging a basin, etc.) at the Project site is provided in Exhibit B to this Agreement and incorporated herein by this reference. Section I of Exhibit B specifies the duties and responsibilities of the identified Cultural Monitoring crew and other specified parties. Section II of Exhibit B identifies the geographical area over which the Cultural Monitoring crew shall oversee and Exhibit C mandates direct compensation of the Cultural Monitoring crew by Client. VI. Successors 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 and Clients of the Project area and any person or entity obligated to comply with environmental and cultural or archaeological resource protection laws applicable to the Project. VII. Environmental Compliance. Nothing in this Agreement shall excuse Client or Caltrans from their respective obligations under any applicable state or federal environmental statute, 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 (c); California Government Code§ 6254; 36 C.F.R. 800 of the NHPA; 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. VIII.Indemnification. Client hereby agrees to fully defend, indemnify, and hold the Tribe, its members, its Tribal Council, each member thereof, and its officials, directors, officers, employees, and agents harmless from and against any and all claims, suits, actions, damages, loss, liability, or costs of every nature or description (including reasonable attorney fees) 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, arising from activities related to this Agreement. IX. Entirety. This Agreement and Exhibits A, B, & C attached hereto constitute the entire agreement between the Parties hereto with respect to the subject matter hereof. No amendment or modification to this Agreement shall be effective unless in writing and executed by both Parties. X. 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, California statutes or otherwise. XI. Limitation on Scope. This Agreement is unique to the Project only and does not set a precedent for other projects. 4 Zol g XII. Term. This Agreement shall commence on June 20, 2017 and will end on July 1, 20 7. This Agreement is entered into on the Agua Caliente Indian Reservation, as of the day and year first above. AGUA CALIENTE BAND OF CITY OF PALM SPRINGS CAHUIL IANS By By Tho as Davis, Tomas Garda, City Engineer ChiefVlanning and Development Officer TO FORM ATTEST: I C11Y ATTORNEY y,*(,a,City Clerk APPROVED BY DEPARMENT HEAD 5 EXHIBIT A Geotechnical Boring for South Palm Canyon Drive Bridge Replacement at Tahquitz Creek Channel Approximately 300 feet south of Sunny Dunes Road Palm Springs, CA 92262 B-4 Proposed Location of Boring «' nr 4 j j `s r. (20)(with Depth in Feet) ,,., _W ? . s Efw.w�crt+Rfi. u F e l saw.v.ne .K'trcrsv,,�e. �\ 0 40' 80' ... -. ._ � utu*s .n S uv�•-* �xs 1r� le e Z q av Scale —... ._ l s 801 t f _ ' 77 _ - _ -- - __----- b _ � ,E t *g:e � r �t�t.e�saq w�+z iw+rerc,�r f. waa+w6iE wer, KFC / l }, tC16 QYSttsR R ' RESTAUFGINT i = h W t� (20') W l,�pNfAl u B-4 r ' ! L 1� (20) `/ ap�a�q.ueAtl � f © W PROPOSED BORING LOCATION MAP Date May 2017 Figure SCST, Inc. South Palm Canyon Drive at Tahquitz Creek Channel Bridge By MAW ©= Palm Springs, California Job No. 140525P3 6 EXHIBIT B NATIVE AMERICAN 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 the archeological investigations, and all ground disturbing activities for the Project. Cultural Monitors will work in concert with the Project archaeologists and Project engineers. The Native American monitors or Project archaeologists will be empowered to halt all earthmoving equipment in the immediate area of discovery when cultural items or features 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 cultural items or features 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 Geotechnical Boring for South Palm Canyon Drive Bridge Replacement at Tahquitz Creek Channel 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, excavations, and groundbreaking activities occurring in conjunction with the development of the Project. Only Cultural Monitors appointed by the Agua Caliente Band of Cahuilla Indians Monitoring Program will be used on the Project. III. Project to be Monitored The Parties to this Agreement project the need for a Cultural Monitoring crew consisting of one (1) Tribal 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 (1) Tribal cultural monitor. The compensation rate shall be made directly from Client to the Agua Caliente Band of Cahuilla Indians. If human remains are found,the coordination of the reburial of those remains and any associated cultural and ceremonial items shall be conducted in accordance with Sections II, III and IV of this Agreement 7 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 appointed Cultural Monitor must be notified if other special safety concerns must be observed in advance and Client shall provide special training if required. 8 EXHIBIT C MONITOR BUDGET WORKSHEET Agua Caliente Band Of Cahuilla Indians Historic Preservation Office-Monitoring Program Date: May 25, 2017 Project Start Date: June 2017 Project Name: Geotechnical Boring /at Tahquitz Creek Channel, Project Address: About 300 feet south of Sunny Dunes Road Contact name: Savat Khamphou Contract No. 02-002-2015-003 Senior Civil Engineer Billing Address City ofPalm Springs Egineering Services Department 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Phone Nos.: 760-323-8253 ext 8744, savat.khamphou@palmsprings-ca.gov The worksheet below is to estimate costs only. An invoice will be sent on a bi-weekly basis Total # Total # Total of Hours" of Days* 1 Drilling 1 Machines (s)for 1 Days @ 8 hr days 8 Hours @ $85.00/hr 8 1 680.00 2 Grading 0 Machine(s)for 0 Days @ 8 hr days 0 Hours @ $85.00/hr 0 0 0.00 3 Excavation 0 Machines for 0 Days @ 8 hr days 0 Hours @ $85.00/hr 0 0 0.00 4 OTHER Archaeology @ $80.00 0 0 0.00 Subtotal 8 1 680.00 TOTAL $680.00 itial 9 Initial