HomeMy WebLinkAboutA6756 - AGUA CALIENTE BAND OF CAHUILLA INDIANS - CULTURAL RESOURCE TREATMENT AND DISPO AGR No.02-002-2008-005
CULTURAL RESOURCE TREATMENT
AND DISPOSITION AGREEMENT
This CULTURAL RESOURCE TREATMENT AND DISPOSITION
AGREEMENT("Agreement") is made and entered into as of August 28, 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 ("Client"),
with offices at 3200 East Tahquitz Canyon, Palm Springs, CA 92262 (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 a bridge rehabilitation project located
at 1441 E. Bogert Trail, on the Agua Caliente Reservation, City of Palm Springs, CA,
owned by the city of Palm Springs commonly referred to as the Bogert Trail Bridge
Rehabilitation Project (hereinafter referred to as the "Project") and as more particularly
described in Exhibit A to this Agreement. Upon request, the Riverside County Coroner's
Office (hereinafter referred to as the "Coroner") shall be provided with a copy of this
Agreement. The City of Palm Springs is the Project's lead agency under the California
Environmental Quality Act ("CEQA"; California Public Resources Code § 21000 et seq.)
and responsible for the environmental compliance of this Project, shall be provided with a
copy of this Agreement upon request. Caltrans is the federal lead agency and responsible
for the implementation of 36 C.F.R. Part 800 and the regulations implementing Section
106 of the National Historic Preservation Act ("NHPA") for the Project, and shall be
provided with a copy of this Agreement upon request. The City of Palm Springs and
Caltrans shall be referred to herein as the"Lead Agencies."
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, and ground
disturbing activities for the Project. This Agreement is entered into pursuant to the
mitigation measures required under treatment per Section 106 of NHPA with regard to
this Project and the conditions of approval for this Project.
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 Indianns�
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has designated its 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 Descendent (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.
II. Coordination with County Coroner's Office. The Client 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).
III. Treatment and Disposition of Remains. In the event that Native American
human remains are found during 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:
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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 all other cultural items
(artifacts) that are recovered during the course of archaeological investigations. Where
appropriate and agreed upon in advance, Client's archeologist may conduct analyses of
certain artifact classes if required by 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.
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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 within a reasonable time period agreed to by the
Parties and not to exceed (30) 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, and parties 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 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 tribal monitoring crew and other specified parties.
Section II of Exhibit B identifies the geographical area over which the tribal monitoring
crew shall oversee and Exhibit C calls for direct compensation in the amount of
$3,600.00 for monitoring services to the Tribe.
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 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.
VIII. Environmental Compliance. Nothing in this Agreement shall excuse 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.
IX. Indemnification. The Client hereby agrees to fully defend, indemnify, and hold
the Agua Caliente Band of Cahuilla Indians 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.
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X. Entirety. This Agreement and attachments hereto constitutes 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 April 30, 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 City of Palm Springs
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APPROVED BY DEPARMENT HEAD APP TO FORM
ATTEST: GiYATTORNEY
ity Clerk
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EXHIBIT A
Bogert Trail Bridge Rehabilitation Project
1441 E. Bogert Trail
Agua Caliente Indian Reservation,
Palm Springs, CA
CONSERVATION
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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 tribal monitoring, consultation and
facilitation for this project during the archeological investigations, and all
ground disturbing activities for the Project. Tribal 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 Tribal 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 Bogert Trail Bridge
Rehabilitation as indicated in Recital A and 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 Crew Size
The parties to this Agreement project the need for a tribal monitoring crew
consisting of one 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 tribal monitors to the originally agreed upon crew (1) l�ul
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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. 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
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EXHIBIT nCn
MONITOR BUDGET WORKSHEET
Agua Calienta Band Of Cahuilla Indians
Historic Preservation Office-Monitoring Program
Project Start Date: April 13 2015
Company name: City of Palm Springs
Project Name: Bogert Trail Bridge Rehabilitation Project
Project Address: 1441 E. Bogert Trail
Project Size: 10 acres
Contact name: Savat Khamphou Contract No.02-002-2008-005
Billing Address 3200 E.Taghuitz Canyon Way
Palm Springs CA 92262
Phone Nos.: 760-323-8253 x8744
The worksheet below is to estimate costs only. An invoice will be sent on a bi-weekly basis
"Minimum 4 hours show un time.
Total#of Total
1 CLEAR&GRUB days
1 Momtor(s)for I days 2
1 Days @ 8 hr days 16 hours j
16 Hours P$75.00/hr 1200.00
2 PAD PREP&GRADING
1 Monitors(s)for I days 2
2 Days @ 8 hr days 16 hours
16 Hours A$75.00/hr 1,200.00
3 WET/DRY UTILITY INSTALLATIO
0 Monitor for 1 days 2
2 Days @ 8 hr days 16 hours
16 Hours $75.00/hr I200.00
4 OTHER Archaeologist @$80.00 0 hours 0.00
OTHER Director @$95.00
Subtotall 1 6 1 3,600.00
"#of machines x#of days TOTAL 1 $3 600.00
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