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HomeMy WebLinkAboutA6879 - AGUA CALIENTE BAND OF CAHUILLA INDIANS - STORM DRAINAGE IMPROVEMENT PROJECT HERMOSA DRIVE CP 09-04 No,03-004.2016.023 CULTURAL RESOURCE TREATMENT AND DISPOSITION AGREEMEMT This CULTURAL RESOURCE TREATMENT AND DISPOSITION AGREEMENT ("Agreement") is made and entered into as of July 11, 2016 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, located at 3200 Tahquitz Canyon Way, Palm Springs, CA 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 street and storm drainage improvement project along Hermosa Drive south of Tahquitz Canyon Way to Baristo Channel in the City of Palm Springs, commonly referred to as Agua Caliente Cultural Museum Road and Drainage Project (Hermosa Drive) CP 09-04, (hereinafter referred to as the "Project") and as more particularly described in Exhibit A to this Agreement. The Project is located within the territorial boundaries of the Agua Caliente Indian Reservation but within the public right-of-way for which Client has an easement for street right-of-way and public utility purposes. Client agrees to pay the Tribe $16,320 00 as consideration for the work provided pursuant to this Agreement, and as described more fully in Exhibit C. The Client shall provide the Riverside County Coroner's Office (hereinafter referred to as the "Coroner")with a copy of this Agreement upon request.The City of Palm Springs, which is the Projeefs lead agency under the California Environmental Quality Act ("CEQA") (California Public Resources Code § 21000 et sea.), is responsible for the environmental compliance for this 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, 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 sites or districts. nitial 1 Initial_ ORIGINAL'BID AND/OR AGREEMENT 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 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 County 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 County Coroner, in consultation with the Agua Caliente 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 I. Incorporation of Recitals. All of the foregoing Recitals are accurate and are incorporated into this Agreement by reference. II. Coordination with the County Coroner's Office. The Client and its contractors shall immediately contact both the Coroner and the Agua Caliente Band of Cahuilla Indians 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 Client shall cause the Corner to notify the NAHC within twenty-four (24) hours of the determination, as required by California Health and Safety Code § 7050.5 (c). III. Treatment and Disoosition 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 nitial 2 Initial T 1Vv` 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 the Client or the NAHC, as required by California Public Resources Code § 5097.98 (a). The Parties 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 the 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. The 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 IV. 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. The 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. The 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 their facilities. Where appropriate and agreed upon in advance, the Client's archeologist may conduct analyses of certain artifact classes, if required by CEQA, 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. Initial 3 ��fInitial 1'^ The Client waives any and all claims to ownership of Native American ceremonial and cultural artifacts that may be found on the Project site. Upon completion of authorized and mandatory archeological analysis,the Client shall return said artifacts to the Agua Caliente Band of Cahuilla Indians and 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. The Client is responsible for temporary curation fees associated with curating the collections. Transfer of ownership shall take place within a reasonable time period agreed to by the Parties and not to exceed (60) days from the initial recovery of the items. V. 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 information related to such reburial,pursuant to the specific exemption set forth in California.Government Code §6254 (r). VI. The Description of Work. Description of scope of work for monitors for the grading and ground disturbing operations 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 the Client. VH. 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 developers 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. VIII. Environmental Compliance. Nothing in this Agreement shall excuse the Lead Agency or the Client of the Project from its obligation 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. nitial 4 Initial_ Or IX. Indemnification. The Client hereby agrees to fully defend,indemnify,and hold the Tribe, 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. X. 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. XI. 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. XII. Limitation on Scone This Agreement is unique to the Project only and does not set a precedent for other projects. XIII. Term.This Agreement shall commence as of the date first set forth above and will end on June 08, 2017. This Agreement is entered into on the Agua Caliente Indian Reservation, as of the day and year first above. Agua Caliente Band of Cahuilla Indians City of Palm Springs By OV 8Y CITY MANAGER h112�2o p0 (ah$'1q ,�.Pp Wft^ WTIO nitial Initial— ATTEST: DATE ff At, ity Clerk EXHIBIT A Agua Caliente Cultural Museum Road and Drainage Project(Hermosa Drive) CP 09-04 Hermosa Drive south of Tahquitz Canyon Way to Baristo Channel Palm Springs, CA 92262 Wei— j�l�tluu�wM:uvd���n�ru� • �d >z' x Elk", t .y ,,�, ,a •: 1-Cali ''.r. , I ± 1119 fill F .r 1 e r �- �� : -... Yi tlY rr�rrir....L.�u��� ���� lM�IR 1MK. lMM� ■��s Initial 6 Initial 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 archaeologists hired by the Client 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). U. Project to be Monitored Monitoring shall encompass the area along Hermosa Drive south of Tahquitz Canyon Way to Baristo Channel in the City of Palm Springs, as indicated in Exhibit A to 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 Parries to this Agreement anticipate the need for a Cultural Monitoring crew consisting of one cultural monitor (1). If the scope of the work changes (e.g., inadvertent discoveries of cultural resources or simultaneous grading to require 11nitial 7 Initial Ar additional monitors, the Client agrees to compensate the Tribe for the work of additional Cultural Monitors. The compensation rate shall be made directly from the 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 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 appointed Cultural Monitor must be notified if other special safety concerns must be observed in advance and the Client shall provide special training if required. jinitial 8 Initial_ V• EXHIBIT C MONITOR BUDGET WORKSHEET Agua Calienta Band Of Cahuilla Indians Historic Preservation Office-Monitoring Program Date: July 11,2016 Project Start Date: July 15, 2016 Project Name: Agua Caliente Cultural Museum Road and Drainage Project(Herr Project Address: Hermosa Drive south of Tahquitz Canyon Way to Palm Springs, CA M64 Project Size: Contact name: Savat Khamphou Contract No. 03-004-2016-023 Billing Address City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92264 Phone Nos.: (760)323-8253 ext. 8744 The worksheet below is to estimate costs only.An invoice will be sent on a bi-weekly basis Total# Total 1 Grading of Days* 1 Machines(s)for 10 days 10 Days @ 8 hr days 80 hours 80 Hours @$85.00/hr 680000 2 Grubbing 1 Machine(s)for 4 days 4 Days @ 8 hr days 32 hours 32 Hours @$85.00/hr 2,720.00 3 Utility Installation 1 Machines for 10 days 10 Days @ 8 hr days 80 hours 80 Hours @$85.00/hr 6,800.00 4 OTHER 0 hours 0.00 Subtotall 16.320.00 -#of machines x#of days TOTAL $16,320.00 Initial 9 Initial K