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HomeMy WebLinkAboutA6811 - AGUA CALIENTE BAND OF CAHUILLA INDIANS - CULTURAL RESOURCE TREATMENT No.02-002-2013-007 CULTURAL RESOURCE TREATMENT AND DISPOSITION AGREEMEMT This CULTURAL RESOURCE TREATMENT AND DISPOSITION AGREEMENT ("Agreement") is made and entered into as of December 14, 2015, by and between Agua Caliente Band of Cahuilla Indians, a federally recognized Indian tribe ("Agua Caliente Band of Cahuilla Indians") and The City of Palm Springs located at 3200 E. Tahquitz 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 Ramon Road Bridge located on Ramon Road between Landau and Crossley in the City of Palm Springs. The project will be conducted on land owned by the Bureau of Indian Affairs (BIA), for geotechnical studies related to the proposed widening of the Ramon Road Bridge, owned by the City of Palm Springs, commonly referred to as Ramon Road Bridge Widening Project, (hereinafter referred to as the"Project") and as more particularly described in Exhibit A to this agreement. Client agrees to pay the Tribe $4,760.00 as consideration for the work provided pursuant to this Agreement, and as described more fully in Exhibit C. The Riverside County Coroner's Office (hereinafter referred to as the "Coroner") shall be provided with a copy of this Agreement upon request. Cal Trans, which is the Project's federal lead agency, is responsible for the implementation Section 106 of the National Historic Preservation Act("NHPA") for the Project and The City of Palm Springs, which is the Project's Lead Agency under the California Environmental Quality Act("CEQA'; California Public Resources Code § 21000 et seq.) is responsible for the implementation of 36 C.F.R. Part 800 for the Project and shall be provided with a copy of this Agreement upon request. Cal Trans and 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 Initial 1 Initial W 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 within the Agua Caliente Band of Cahuilla Indians Reservation 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 had 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 funnery 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 Tribal Historic Preservation Office(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 in this Agreement by reference. IL Coordination with the County Coroner's Office. The Lead Agency and the Developer 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 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). Initial 2 Initial le III. 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 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 the 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. 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 Initial 3 Initial-W 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. 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 their 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. VII. 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 Developer 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 Initial 4 Initial Constitution. Nothing in this Agreement is intended to make any of the above-referenced laws applicable where such laws would otherwise be inapplicable. IX. Indemnification. The Client hereby agrees to fully defend, indemnify, and hold the Tribal Government 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 Developer hereunder, including Developer'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 Scope. 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 of execution and will end on March 31, 2016 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 Marcus L. Fuller, City of Palm Springs . 9, By By ATTEST: Initi � — 5 Initial_ ty Clerk APPROVED BY DEPARMENT HEAD ski, . �r1bo°° Abel\ EXHIBIT A Ramon Road Bridge Widening Project Ramon Road between Landau and Crossley Palm Springs, CA 92264 CITY OF PALM SPRINGS RAMON ROAD BRIDGE WIDENING AT THE WHITEWATER RIVER .w.rr.uY..em • •a.. YA. �, RRe ___� ___�n+o ru ii elan reea ruu Irlu Y�i r rM. rEx� " r BRIDGE ELEVATION •=7 LEGEND .•e Ar 8 8 8 4 4 4 I TYPICAL BRIDGE SECTION Y 1. :wATa itial 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). II. Project to be Monitored Monitoring shall encompass the area known as Ramon Road Bridge Widening 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) Cultural Monitor. If the scope of the work changes (e.g. inadvertent discoveries of cultural resources or simultaneous grading to require additional monitors, the Client agrees to directly compensate the work of additional Initial 7 Initial r Cultural Monitors to the originally agreed upon crew (1) Cultural Monitor. 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 Pre-Excavation 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. Initial 8 Initial Ar EXHIBIT C MONITOR BUDGET WORKSHEET Agua Calienta Band Of Cahuilla Indians Historic Preservation Office-Monitoring Program Date: December 14, 2015 Project Start Date: December 15, 2015 Project Name: Ramon Road Bridge Widening Project Project Address: Ramon Road between Duvall and Crossley Palm Springs, CA Project Size: Contact name: Marcus L. Fuller, PE, PLS Contract No. 02-002-2013-007 Assistant City Manager/City Engineer Billing Address 3200 Tahquitz Way Palm Springs California 92262 Phone Nos.: (760)322-8380/(760)322-8380 The worksheet below is to estimate costs only. An invoice will be sent on a bi-weekly basis Total# Total 1 Boring and Geo-technical Studies of Days* 1 Machines(s)for 7 days 7 Days @ 8 hr days 56 hours 56 Hours @ $85.00/hr 4,760.00 2 Grubbing 1 Machine(s)for days 0 Days @ 8 hr days 0 hours 0 Hours @$85.00/hr 1 0.00 3 Excavation 1 Machines for days 0 Days @ 8 hr days 0 hours 0 Hours @$85.00/hr 0.00 4 OTHER Archaeology @ $80.00 0 hours 0.00 Subtotal 4,760.00 5 V of machines x#of days TOTAL $4,760.00 Initial 9 Initial