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PW Cultural Resources Monitoring; Essential FacilitiesAN AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND FEDERATED INDIANS OF GRATON RANCHERIA FOR TREATMENT OF CULTURAL RESOURCES AND TRIBAL MONITORING FOR PUBLIC SAFETY CENTER CONSTRUCTION PROJECT I. PARTIES This Agreement is entered into as of the -15 day of May, 2017, by and between (1) the Federated Indians of Graton Rancheria, a federally recognized Indian tribe ( TRIBE ) and (2) the City of San Rafael, a California charter city ("CITY"). TRIBE and the CITY are collectively referred to as "PARTIES". II. SUBJECT MATTER This Agreement concerns a construction project known as "Public Safety Center". The CITY approved a Mitigated Negative Declaration for the construction of a new Public Safety Center containing a new Fire Station #51, Fire Department administrative offices, the Police Department and Police Department administrative offices, and an underground 21,000 square foot parking garage with 22 parking spaces, at a site, on the south side of Mission Avenue between C and D Streets (APN's 011 205-01, -04, -17), now containing the CITY's existing Fire Station #51 and the CITY's Blue House administrative offices, both of which will be demolished, a paved parking lot between Fire Station #51 and the Blue House, and a lot containing a modular building to be removed that currently houses the CITY's Parking Services Division and an adjacent paved parking area with parking meters, in the City of San Rafael, (the "Project"), pursuant to Planning Commission Resolution No. 16-10 on July 26, 2016, and in consultation with the TRIBE. The CITY is the Lead Agency for the Project and is responsible for environmental compliance of the Project. The Marin County Coroner will be provided a copy of this Agreement by the CITY. III. PURPOSE The purpose of this Agreement is to formalize procedures for the treatment of Native American human remains, grave goods, funerary objects, ceremonial items, and cultural items, in the event that any are found in conjunction with development of the Project. This Agreement also formalizes procedures for tribal monitoring during all grading, groundbreaking, excavation, and ground disturbing activities performed in conjunction with the Project development, including, but not limited to archaeological testing, studies, surveys, and staging activities. This Agreement is entered into pursuant to the mitigation measures required under the California Environmental Quality Act, Cal. Public Resources Code § 21000 et seq. (' CEQA') and the conditions of approval for this Project. IV. CULTURAL AFFILIATION The PARTIES agree that the Project area consists of land which has been traced to and traditionally occupied by the TRIBE. Any human remains as defined in Section VII which are found in conjunction with the development of this Project shall be treated in accordance with Sections V through VIII of this Agreement. Cultural resources shall be treated in accordance with Section IX of this Agreement. Significant sites shall be treated in accordance with Section X of this Agreement. V. MOST LIKELY DESCENDANT In the event that Native American human remains are found during development of this Project, the PARTIES understand that the determination of Most Likely Descendant ( MLD ) under California Public Resources Code Section 5097.98 will be made by the Native American Heritage Commission ( NAHC ). Until such time, neither the TRIBE nor the CITY guarantees that the TRIBE or one of its members will be so named. However, given the location of the site and the history and prehistory of the area, the PARTIES agree that their good faith belief is that, when and if such Native American human remains are discovered at the Project site, the TRIBE or one of its members will be will be named the MLD. Should the NAHC determine that a member of an Indian tribe other than the TRIBE is the MLD, the provisions of this Agreement relating to the treatment of such Native American human remains shall be null and void in their entirety. VI. COORDINATION WITH CORONER'S OFFICE The CITY shall immediately contact the Coroner and the TRIBE in the event that any human remains are discovered during the development of the Project. The Coroner shall ensure that notification is provided to the NAHC as required by California Public Resources Code Section 5097.98(a) and California Health &z Safety Code Section 7050.5(c). VII. TREATMENT OF NATIVE AMERICAN REMAINS In the event that Native American human remains are found during development of the Project and the TRIBE or a member of the TRIBE is determined to be MLD pursuant to Section V of this Agreement, the following provisions shall apply: The term "Native American human remains" encompasses more than human bones because TRIBE's traditions call for burial of associated cultural resources with the deceased (grave goods and funerary objects), and any ceremonial burning of funerary objects, grave goods and animals. Ashes and other remnants of these burning ceremonies, as well as grave goods and funerary objects, associated with or buried with Native American remains, are to be treated in the same manner as bones, bone fragments and cremations. The Coroner shall immediately be notified, ground disturbing activities in that location shall cease, and the remains shall be left in the place where they were discovered until the Coroner has had the opportunity to inspect the remains in place and make his/her determinations as required by State law, and until a final decision as to the treatment and/or disposition has been made pursuant to this Agreement and the State law. The TRIBE shall be allowed, pursuant to California Public Resources Code Section 5097.98(a), to (1) inspect the site of the discovery and (2) make recommendations as to how the human remains and grave goods should be treated with appropriate dignity. The CITY shall discuss and confer with the TRIBE all reasonable options with regard to TRIBE's preferences and recommendations for treatment. The PARTIES agree to discuss in good faith what constitutes appropriate dignity, as that term is used in the applicable statutes and in the TRIBE'S customs and traditions. The TRIBE shall complete its inspection and make its MLD recommendation within forty eight (48) hours of receiving notification of the MLD determination from the NAHC. Subject to the Tribe's obligation to act reasonably and in compliance with applicable laves, the TRIBE shall have the final determination as to the disposition and treatment of human remains and grave goods. VIII. TRIBAL MONITORING Given the nature and sensitivity of the archaeological sites and cultural resources that are or may be in the Project area, the TRIBE may designate a monitor representative to be retained as the Tribal monitor during all grading, groundbreaking, excavation, and ground disturbing activities performed in conjunction with the Project development, including, but not limited to archaeological testing, studies, surveys, and staging activities. In the event that human remains, as defined in this Agreement are found during development of the Project, tribal monitors are empowered to temporarily halt and/or relocate grading or excavation activities within 50 feet pending further investigation by the Coroner and the TRIBE, pursuant to California Health & Safety Code Section 7050.5. The monitors are further empowered to temporarily halt and/or relocate grading or excavation activities within 50 feet, for short periods of time, to conduct further evaluation of the significance of discovered cultural items, including further controlled excavations pursuant to California Public Resources Code Section 21083.2(i). Surface or subsurface artifacts of significance, as defined by a qualified archaeologist, may be collected and mapped during this controlled excavation. If human remains are found, coordination of the treatment of those remains, as defined in Section VII of this Agreement, will be conducted in accordance with Sections V through VIII of this Agreement. Cultural resources shall be treated in accordance with Section XI of this Agreement. Significant sites shall be treated in accordance with Section XII of this Agreement and applicable Project conditions. If necessary, archaeological observation shall consist of a qualified archaeologist, retained by the CITY, to be present during grading activities to identify and/or ascertain the significance of any subsurface cultural resources or to aid in the avoidance of sensitive areas. For purposes of determining Tribal monitoring crew sizes, a written schedule of excavation, testing, grading, and ground -disturbing activities will be submitted by the CITY to the TRIBE one week in advance of the commencement of these activities. For purposes of this Agreement, "notice" must be given during normal business hours (i.e., Monday -Friday from 8:00 a.m. to 5:00 p.m.) to be proper notice. Following any rescheduling or interruption of scheduled activities, the CITY will give the TRIBE forty-eight (48) hours' notice before activities resume. IX. COMPENSATION AND INSURANCE The PARTIES agree that the Tribal Monitors are employees of TRIBE, and that CITY shall compensate TRIBE at an hourly rate of $55.00 per hour for the time spent by the Tribal Monitor at the Project site during ground -disturbing construction activities, based upon a daily monitoring log maintained by the Tribal Monitor. The CITY shall compensate TRIBE for the automobile transportation expenses of the Tribal Monitor at the mileage rate established by the United States, which is currently set at 53.5 cents per mile. TRIBE shall invoice CITY for Tribal Monitoring expenses on a monthly basis, and shall include copies of the daily monitoring logs supporting the hours reported on the invoice. The CITY shall remit payment to the TRIBE within 30 days of receipt of TRIBE invoices. The total compensation payable by CITY to TRIBE for monitoring under this Agreement shall not exceed $31,000, except by a written amendment of this Agreement approved by the PARTIES. TRIBE recognizes that dangerous working conditions can exist as a work site, particularly during grading and excavation operations. The Tribal Monitor shall review safety procedures as specified by the Project manager and shall attend all safety meetings. TRIBE shall provide the CITY with a copy of the certificate of insurance provided by the TRIBE for the Tribal Monitor. The insurance will include statutory workers' compensation and $1 Million employer's liability, $1 Million/$2Million commercial general liability, $1 Million automobile liability, and $1 Million errors and omissions. The TRIBE shall provide City with an endorsement to the commercial general liability policy naming the CITY as an additional insured, and an endorsement that such additional insured coverage is on a primary insurance basis. The TRIBE also shall provide CITY with an endorsement of the worker's compensation insurance policy to waive any subrogation rights against the CITY. The CITY agrees TRIBE may invoice the CITY for the Tribal Monitors compensation on a monthly basis. TRIBE will invoice the CITY to: Bill Guerin Public Works Director City of San Rafael 111 Morphew Street San Rafael, CA 94901 Email: bill. "erin@city_ ofsanrafael.org Phone: 415-485-3110 The CITY agrees to remit payment in full to the following address within thirty (30) days of receipt of the TRIBE's invoice: Lynn Silva Interim Chief Financial Officer Federated Indians of Graton Rancheria 6400 Redwood Drive, Suite 300 Rohnert Park, CA 94928 Email: LSilva@uatonrancheria.com Phone: 707.566.2288, Ext 126 All unpaid balances are subject to a monthly finance charge of 2% of the balance owed. X. NON -DISCLOSURE OF LOCATION OF REBURIALS It is understood by the PARTIES that, unless otherwise required by law, the site of any reburial of Native American human remains shall not be disclosed and will not be governed by public disclosure requirements of the California Public Records Act, Cal. Govt. Code § 6250 et seq. The PARTIES agree that the Coroner shall withhold public disclosure of information related to such reburial pursuant to the specific exemption set forth in California Government Code Section 6254(r). XI. TREATMENT OF CULTURAL RESOURCES Treatment of all cultural items, including ceremonial items and archaeological items will reflect the religious beliefs, customs, and practices of the TRIBE. XII. SIGNIFICANT SITES IMPACTED BY PROJECT The PARTIES agree that if additional significant sites or sites not identified as significant in the Project environmental review process, are identified by a qualified archaeologist within the Project site, they will be evaluated by a qualified archaeologist in coordination with the Tribe. Additional mitigation measures may be necessary to treat sites in a culturally appropriate manner consistent with CEQA requirements for mitigation of impacts to cultural resources. If an additional significant site or sites not identified as significant are discovered within the Project site, the PARTIES commit to developing an action plan within 48 hours for the purpose of getting the Project reinitiated. XIII. NOTICES All notices to the PARTIES, shall be given by hand delivery, United States mail, or email as set forth below: To the City of San Rafael: Bill Guerin Public Works Director City of San Rafael 111 Morphew Street San Rafael, CA 94901 Email: bill.guerin@cityofsanrafael.org Phone: 415-485-3110 With a copy to: Raaj Patel Project Manager Kitchell Corporation 2450 Venture Oaks Way, Suite 500 Sacramento, CA 95833 Email: rpatel@kitchell.com Phone: 916-648-9700 To the Federated Indians of Graton Rancheria: Buffy McQuillen, THPO Federated Indians of Graton Rancheria 6400 Redwood Drive Rohnert Park, CA 94929 Email: bmcquillen@gratonrancheria.com Phone: 707-566-2288 XIV. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon and inure to the benefit of the heirs, successors, representatives, executors, administrators, and assigns of the PARTIES, including contractors and sub -contractors, and any person or entity obligated to comply with environmental and cultural/archaeological protection laws applicable to this Project. XV. ENVIRONMENTAL COMPLIANCE Nothing in this Agreement shall excuse the CITY from their obligations under any applicable state or federal laws or regulations, including but not limited to the California Environmental Quality Act (CEQA); Public Resources Code § 21000 et seq., the National Historic Preservation Act ("NHPA") 16 U.S.C. 5 470 et seq.; California Public Resources Code Sections 5097.98, 5097.98(c), and 5097.99; California Health and Safety Code Sections 7050.5(c); California Government Code Section 6254, 65040.2, 65092, 65351, 65352, 65560, 65352.3, 65352.4, 65562.5; California Civil Code 815.3; the Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001 et seq.; the California Native American Graves Protection and Repatriation Act of 2001, California Health and Safety Code N8010 et seq.; the American Indian Religious Freedom Act, 16 U.S.C. § 1996, et seq., 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. XVI. SEVERABILITY Should any part of this Agreement be found by any court or agency of competent jurisdiction to be to any extent invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. XVII. LIMITATION ON SCOPE This Agreement is unique to this Project only and does not set a precedent for other projects. XVIII. AUTHORITY TO EXECUTE Each of the persons executing this Agreement expressly warrants that he or she is authorized to do so on behalf of the entity for which he or she is executing this Agreement. Each party to this Agreement represents and warrants that this Agreement is executed voluntarily, with full knowledge of its significance. XIX. COUNTERPARTS This Agreement may be signed in two or more counterparts and will be effective when all PARTIES and signatories have affixed their signatures to two or more of the counterparts and said counterparts have been delivered to all PARTIES, at which time the counterparts together will be deemed one original document. IN WITNESS WHEREOF, the PARTIES have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL 'q JAM bS. SCHUTZ, anager ATTEST: ESTHER C. BEIRNE, City Clerk APPROVED AS TO FORM: �, �) V 4- It' ROBERT F. EPSTEIN, City Attorney FEDERATED INDIANS OF GRATON RANCHERIA _ GREG S Chairman C frZu7, .-cJ k - CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Public Works Project Manager: Bill Guerin Extension: 3110 Contractor Name: Federated Indians of Graton Rancheria ("FIGR") Contractor's Contact: Maureen Geary Contact's Email: mgeary@jmandmplaw.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER Date of Council approval DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introduc Sc6Ln� 1/5/2017 e Xe - 1/5/2017 6 City Attorney Review and approve hard copy of signed J b. Email contract (in agreement�'�, Atty c/o Laraine.G 7 City Attorney Review and approve insurancein PINS and bonds for Public Works Contracts'^� `L`t 2 City Attorney a. Review, revise, an 1/5/2017 8 City Manager/ Mayor and return to Pro. 1/24/2017 9 City Clerk Attest signatures, retains original agreement and b. Confirm insuranc forwards copies to Project Manager .6-81-1-7 PINS, send PINS insuiall......_ 3 Project Manager Forward three (3) originals of final agreement to 5/2/2017 contractor for their signature 4 Project Manager When necessary, * contractor -signed agreement ❑ N/A agendized for Council approval *PSA > $20,000; or Purchase > $35,000; or Or Public Works Contract > $125,000 5/15/2017 Date of Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed agreement�'�, 7 City Attorney Review and approve insurancein PINS and bonds for Public Works Contracts'^� `L`t 8 City Manager/ Mayor Agreement executed by Council authorized official —17 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager .6-81-1-7 'S ?. .