HomeMy WebLinkAboutSan Luis Rey Band of Mission Indians; 2005-08-23;CARLSBAD MUNICIPAL GOLF COURSE
PRE-EXCAVATION AGREEMENT
I. PARTIES
The Parties to this Agreement are (1) The San Luis Rey Band of Mission Indians, (the “San
Luis Rey Band” or the ”Band”) and (2) The City of Carlsbad (“Developer”).
All notices to the Parties shall be given at the addresses below:
San Luis Rey Band of
Mission Indians
1889 Sunset Drive
Vista, CA 92083
DeveloDer
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Counsel for the Tribe
California Indian Legal Services
609 S. Escondido Blvd.
Escondido, CA 92025
Counsel for Developer
Office of the Carlsbad City Attorney
1200 Carlsbad Village Drive
Carlsbad, CA 92008
11. SUBJECT MATTER
This Agreement concerns a project known as the Carlsbad Municipal Golf Course (the
“Project”). The Project area consists of approximately 397 acres of land and is described in detail in
Volume I of the Carlsbad Municipal Golf Course Revised Draft Environmental Impact Report, dated
January 2000. The City of Carlsbad is the Lead Agency for this project and is responsible for
environmental compliance. The San Diego County Medical Examiner’s Office will be provided a
copy of this Agreement.
111. PURPOSE
The purpose of this Agreement is to formalize procedures for the treatment of Native American
human remains, grave goods, ceremonial items, and cultural items, in the event that any are found in
conjunction with the Project’s development, 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 the California Environmental Quality Act, Cal. Public Resources Code 0
21000 et seq. (“CEQA”) for this Project. This Agreement is effective as of the date signed by both
parties.
IV. CULTURAL AFFILIATION
The Parties agree that the Project area consists of land which has been traced to and
traditionally occupied by the San Luis Rey Band.
1
CARLSBAD MUNICIPAL GOLF COURSE
CITY OF CARLSBAD
V.
PRE EXCAVATION AGREEMENT SAN LUIS REY BAND OF MISSION INDIANS
PROTECTION OF SITES AND PROJECT AREA
The parties agree that Developer, and Developer's agents, employees, contractor,
subcontractors and affiliates, shall make their best efforts to avoid any and all known cultural
resource sites during all phases of development. Developer agrees that no construction
equipment shall be stored within the boundaries of any known cultural resource site. Developer
further agrees that all known sites shall be capped with a sufficient amount of soil to ensure that
they are not disturbed once development of the Project is complete. The San Luis Rey Band
agrees to consult with Developer regarding appropriate capping at each site.
VI. 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") upon notification to NAHC of the discovery of said remains at
the Project site. Until such time, neither the San Luis Rey Band nor Developer guarantees that
the San Luis Rey Band 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 it is their good faith
belief that if such human remains are discovered at the Project site, either Henry Contreras of the
San Luis Rey Band or another member of the San Luis Rey Band will be named MLD.
Should the NAHC determine that a member of an Indian tribe other than the San Luis
Rey Band 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, except that, in such an event,
the provisions of Addendum 1 to this Agreement, which is fully severable, shall continue in full
force and effect.
VII. COORDINATION WITH COUNTY MEDICAL EXAMINER'S OFFICE
The Developer shall immediately contact the Medical Examiner and the San Luis Rey
Band in the event that any human remains are discovered during the development of the Project.
The Medical Examiner shall ensure that notification is provided to the NAHC as required by
California Public Resources Code Section 5097.98(a).
VIII. TREATMENT AND DISPOSITION OF REMAINS
In the event that Native American human remains are found during development of the
Project and the San Luis Rey Band or a member of the San Luis Rey Band is determined to be
the MLD pursuant to Section VI of this Agreement, the following provisions shall apply:
Pursuant to California Public Resources Code Section 5097.98(a), the San Luis Rey Band shall
be permitted to (1) inspect the site of the discovery and (2) make determinations as to how the
human remains and grave goods should be treated and disposed of with appropriate dignity. The
Band shall complete its inspection within twenty-four (24) hours of receiving notification of (a)
the discovery of remains, grave goods andor ceremonial and cultural items or (b) MLD
determination fiom either Developer or the NAHC, whichever is later. The Parties agree to
CARLSBAD MUNICIPAL GOLF COURSE 2. PRE EXCAVATION AGREEMENT
CITY OF CARLSBAD SAN LUIS REY BAND OF MISSION INDIANS
CARLSBAD MUNICIPAL GOLF COURSE
CITY OF CARLSBAD
PRE EXCAVATION AGREEMENT
SAN LUIS REY BAND OF MISSION INDIANS
discuss in good faith what constitutes "appropriate dignity," as that term is used in the applicable
statutes and in the San Luis Rey Band's customs and traditions. Reburial of human remains shall
be accomplished in compliance with the California Public Resources Code Sections 5097.98(a)
and (b). The San Luis Rey Band shall have the final determination as to the disposition and treatment of human remains and grave goods.
The Parties are aware that the San Luis Rey Band may wish to rebury human remains and
grave goods or ceremonial and cultural items on or near the site of their discovery, in an area
which will not be subject to future disturbances over a prolonged period of time. Developer
therefore agrees to allow on-site reburial and agrees to select a reburial site on the property
within the Project area in consultation with the San Luis Rey Band.
The term "human remains" encompasses more than human bones because the San Luis
Rey Band's traditions call for the ceremonial burning of human remains, associated funerary
objects, and animals. Ashes and other remnants of these burning ceremonies are to be treated in
the same manner as bones or bone fragments that remain intact.
IX. TREATMENT OF CULTURAL ITEMS
Treatment of ceremonial and cultural items will reflect the religious beliefs, customs, and
practices of the San Luis Rey Band.
Developer agrees to give all Tribal ceremonial and cultural items found in the Project
area to the San Luis Rey Band for appropriate treatment, unless to do so would violate the order
of a court or agency of competent jurisdiction. Developer waives any and all claims to
ownership of Tribal ceremonial and cultural items which may be found on the Project site in
favor of the San Luis Rey Band. If temporary possession of ceremonial or cultural items by an
entity or individual other than the San Luis Rey Band (for example, an archaeologist retained by
Developer) is necessary, said entity or individual shall turn the retained items or remains over to
the Band as soon as is practicable.
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. The Parties agree that the
sites are subject to an exemption from the public disclosure requirements of th,e California Public
Records Act. The Medical Examiner 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. WORK STATEMENT FOR NATIVE AMERICAN MONITORS
The description of work for Native American monitors of the grading and ground-
disturbing operations at the development site is attached hereto as Addendum 1 and incorporated
herein by reference. Addendum 1 specifies the geographical area over which this monitoring
shall be conducted, the size of the monitoring crew, the powers of the monitoring crew, and
provisions for compensation of the Native American monitors.
CARLSBAD MUNICIPAL GOLF COURSE 3 PRE EXCAVATION AGREEMENT
CITY OF CARLSBAD SAN LUIS REY BAND OF MISSION INDIANS
CARLSBAD MUNICIPAL GOLF COURSE
CITY OF CARLSBAD PRE EXCAVATION AGREEMENT
SAN LUIS REY BAND OF MISSION INDIANS
XII. 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 subsequent land
owners and developers of the Project area and any person or entity obligated to comply with
environmental and cultural/archaeological protection laws applicable to this Project.
XIII. ENVIRONMENTAL COMPLIANCE
Nothing in this Agreement is intended to limit the obligations of the Lead Agency or the
Developer to comply with state and federal law and regulations applicable to the Project.
XIV. NO INDEMNITY
Nothing in this Agreement shall be interpreted as an indemnity or guarantee of any kind
by the San Luis Rey Band in favor of the Lead Agency or Developer.
XV. SEVERABILITY
Should any court or agency of competent jurisdiction rule that any part of this Agreement
is 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 the law.
XVI. LIMITATION ON SCOPE
This Agreement is unique to this Project only and does not set a precedent for other
proj ec t s .
XVII. COUNTERPARTS
This Agreement may be executed in two or more counte
deemed an original, but all of which together shall constitute one
Date: 3-
Tribe: San Luis Rey Band of Mission
Indians
By: By: ,/&& 8/23-05
Its: Tribal Captain Its: Claude A. Lewis, Mayor
Approved as to form:
I
-, Rdnald Ball, City Aftorney
CARLSBAD MUNICIPAL GOLF COURSE 4 PMXCAVATION AGREEMENT
CITY OF CARLSBAD SAN LUIS REY BAND OF MISSION INDIANS
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California I
&?+%L,.W* *y*v p &Jaw
Narn nd litle of Officer (e g , “Jde Doe, Notary Pubkc”)
On Ai/.Pr‘c/T 2daC before me,
personally appeared GGtfU L. ?&fo I
Name@) of Signer@)
0 personally known to me
*proved to me on the basis of satisfactory evidence
to be the person(* whose name@) idam subscribed
to the within instrument and acknowledged to me that
he/skdtkeg executed the same in hislkerCU7eir
authorized capaciw), and that by hisheMeir
signature(@) on the instrument the person@, or the
entity upon behalf of which the person(# acted,
executed the instrument.
WITNES fficial eal.
Place Notary Seal Above g;z4dY
Signature o otary Public
OPTlONA L
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer’s Name: Signer’s Name:
0 Individual 0 Individual
0 Corporate Officer - Title(s): 0 Corporate Officer - Title(s):
0 Partner - 0 Limited 0 General 0 Partner - 0 Limited General
il Attorney in Fact
0 Trustee
0 Guardian or Conservator Guardian or Conservator Other:
Signer Is Representing:
0 Attorney in Fact
Signer Is Representing:
0 2004 National Notary Association * 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 Item No. 5907 Reorder: Call Toll-Free 1-800-876-6827
CARLSBAD MUNICIPAL GOLF COURSE
CITY OF CAIUSBAD PRE EXCAVATION AGREEMENT
SAN LUIS REY BAND OF MISSION INDIANS
ADDENDUM 1
CARLSBAD MUNICIPAL GOLF COURSE
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 in the Project area, Native American monitoring will be necessary during the
archaeological testing, studies and surveys, and during mitigation, grading, and ground-
disturbing activities for the Project. While the exercise of this power is unlikely, the monitors
are empowered to stop or relocate excavation activities for short periods of time to conduct
further, controlled excavation of sites for the evaluation of the significance of discovered cultural
items. Any controlled excavation conducted after a temporary stop of excavation activities shall
include, but is not limited to, the collection and mapping of any significant surface or subsurface
artifacts .
A pre-grading conference shall be held by the Developer to clarify monitoring
specifications with the grading contractor and/or project manager and the grading inspector for
the jurisdiction in which the Project area is located. The San Luis Rey Band, or the Band’s
designated representative, and the Native American monitors shall be invited to participate in
this conference.
In conjunction with the Native American monitors, the Developer shall provide
archaeological observation, as determined to be necessary. The archaeological observation shall
consist of a qualified archaeologist, who shall be present during all ground-disturbing activities
within the barriers of the known archaeological sites. In addition to observing the ground-
disturbing activities within the barriers of the known archaeological sites, the archaeologist shall
be available for observation if and when additional sites are uncovered during the development
process. The archaeologist shall assist in identifying and/or ascertaining the significance of any
subsurface cultural resources, and aid in the avoidance of sensitive areas. .
For purposes of determining crew sizes, a written schedule of excavation, testing, grading
and/or ground-disturbing activities will be submitted by the Developer to the Native American
monitors at least one week in advance of the commencement of these activities. For the
purposes of this agreement, monitoring activities are estimated to commence approximately
September 1,2005 but in no case prior to written notification from Developer to the Band.
11. PROJECT TO BE MONITORED
Monitoring shall encompass the area known as the Carlsbad Municipal Golf Course,
consisting of approximately 397 acres of land located in the City of Carlsbad. This shall be
known as the “Project area,” and shall include the areas within the legal description attached
hereto and incorporated by reference (Exhibit A). It is agreed that monitoring will be allowed
for all archaeologica1 studies, soil tests, geological investigations, excavation, grading, and
ground-disturbing activities occurring in the development of the Project
CARLSBAD MUNICIPAL GOLF COURSE 5 PRE EXCAVATION AGREEMENT
CITY OF CAIUSBAD SAN LUIS REY BAND OF MISSION INDIANS
CARLSBAD MUNICIPAL GOLF COURSE
CITY OF CARLSBAD
111. PROJECT CREW SIZES
PRE EXCAVATION AGREEMENT
SAN LUIS REY BAND OF MISSION INDIANS
The Parties anticipate the need for a Native American monitoring crew consisting of two
(2) persons. If scope of the work changes to require a larger crew (e.g., inadvertent discoveries
of cultural resources, or simultaneous grading in two different geographic areas), Developer
agrees to come to a reasonable agreement with the San Luis Rey Band regarding the retention of
additional crew members. If human remains are found, coordinating the reburial of those
remains and cultural and ceremonial items will be conducted in accordance with the Pre-
Excavation Agreement.
IV. COMPENSATION
On behalf of the San Luis Rey Band, the San Luis Rey Mission Indian Foundation shall
refer appropriate monitors for the project. The Native American monitors referred by the Band
shall be independent contractors contracted directly by the Developer. The Parties agree neither
the San Luis Rey Band, the San Luis Rey Mission Indian Foundation, nor any of their members,
board members, agents, employees, contractors or subcontractors shall have any liability for the
intentional misconduct or negligent acts or omissions of the Native American monitors referred
by the Band.
The Developer shall provide compensation for the Native American monitors at the rate
of $38.00 per hour. The hourly rate of compensation paid to the Native American monitors shall
be adjusted for inflation based on 2005 dollars. The adjustment, if any, shall be calculated upon
the basis of the United States Department of Labor, Bureau of Labor Statistics, Revised
Consumer Price Index. Hourly rate compensation adjustments shall be made only once a year.
For purposes of rate compensation adjustment, a year commences on January 1st. A minimum
half-day charge ("show up" time) will be charged to the Developer for unannounced work
stoppages of Native American monitors not due to actions of the San Luis Rey Band or the
Native American monitors. The hourly rate will not be applicable to travel time to and from the
project site.
CARLSBAD MUNICIPAL GOLF COURSE
CITY OF CARLSBAD
6 PRE EXCAVATION AGREEMENT
SAN LUIS REY BAND OF MISSION INDIANS
CARLSBAD MUNICIPAL GOLF COURSE
CITY OF CARLSBAD
PRE EXCAVATION AGREEMENT
SAN LUIS REY BAND OF MISSION INDIANS
EXHIBIT A
CARLSBAD MUNICIPAL GOLF COURSE
CITY OF CARLSBAD
7 PRE EXCAVATION AGREEMENT
SAN LUIS REY BAND OF MISSION INDIANS
LOTS 5a
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EXHIBIT A
LEGAL DESCRIPTION
OF
CITY OF CARLSBAD GOLF COURSE PROPERTY
l'"R0UGH 76 INCLUSIVE OF CARLSBAD TRACT NO. 81-46 UNIT NO.
DING TO MAP THEREOF NO. 11289, FlLFiD IN THE OFFICE OF THE
RECORDER OF SAN DIEGO COUNTY ON JULY 16,1985, TOGETHER 4T PORTION OF CARRlER AVENUE, SWIFT PLACE, PALOM& OAKS
LLEGE BOULEVARD AND OTIS COURT AS DEDICATED ON SAID
11289, WHICH UPON CLOSING WOULD REVERT TO BY OPmTION
TO SAID LOTS; ALSO THAT CERTAIN LOT DESIGNATED AS DER PARCEL" ON SAID MAP 11289; ALSO, LOTS 1 THROUGH 26 OF
THE OFTICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY
,MBER 13, 1991, TOGETHER WITH THAT PORTION OF COLLEGE
XD, ROCKEFELLER ROAD, CARNEGIE COURT, GETTY PLACE,
COURT, PALOMAR AIRPORT ROAD AND HIDDEN VALLEY ROAD
:ATED ON SAID MAP NO. 12903, WHICH UPON CLOSING WOULD
SY OPERATION OF LAW TO SAID LOTS; ALSO, A PARCEL OF LAND
PORTION OF LOT F AND A PORTION OF LOT G OF RANCHO AGUA
A, ACCORDING TO PARTITION MAP THEREOF NO. 823 FILED IN
ICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, 3R 16, 1896; BEING MORE PARTICUL,ARLY DESCRIBED AS
1E WESTERLY BOUNDARY OF SAID LOT F, 167.78 FEET TO A POINT
UIC OF A NONTANGENT 58.00 FOOT RADIUS CURVE, CONCAVE Y, A RADIAL LINE TO SAID POINT BEARS SSS"03'22"E.; THENCE
LY ALONG THE ARC OF SAID CURVE THROUGH A CE"lTWk IF 70°51'37", A DISTANCE OF 71.73 FEET TO SAID WESTERLY LY; THENCE N.OOYB'11 W., 2092.42 FEET TO POINT 8 OF SAID LOT F;
J.O6O47'51"E., 1219.60 FEET TO A POINT ON THE NORTHERLY LINE ,OT E, DISTANT S.S7'23'24"E, 2025.08 FEET FROM POINT 6 OF SAID
ENCE S,87"23'24"E. 2417.19 FEET TO THE NORTHWEST CORNER OF
1 DESCRIBED IN DEED TO HOWARD G. KJRGIS, ET UX., RECORDED
ER 24, 1957 IN BOOK 6761, PAGE 197 OF OFFICIAL RECORDS;
;.0Z036'36"W., 740.00 FEET TO THE SOUTHWEST CORNER OF SAID
LOPERTY, THENCE S.87'23'24"E., 1378.84 FEET TO THE SOUTHEAST IF SAID KIRGIS PROPERTY, THENCE S.10°58'35"E., 1394.10 FEET TO DF SAID LOT F; BEING THE MOST NOR'lXERLY CORNER OF LAND :D IN DEED TO S.L. KELLY, RECORDED FEBRUARY 3,1961, AS FILE
3 OF OFFICIAL RECORDS; THENCE ALONG THE NORTHEASTERLY
SAID KELLY'S LAND S.5lo01'58"E., 1042.27 FEET; THENCE
W., 288.57 FEET; THENCE N.51°01'58"W. 152.00 FEET, THENCE W. 152.00 FEET; THENCE N.51*01'58'W. 1089.27 FEET TO A POINT &OT LINE BETWEEN POINT 13 AND POINT 14 OF SAID LOT F
.63"14'04"W. ALONG SAID LOT LINE 564.30 FEET TO SAID POINT 13;
D TRACT NO. 85-17, ACCORDING TO MAP THEREOF NO. 12903,
1: BEGINNING AT POINT 9 OF SAID LOT F; THENCE N.00'29'11"W.
., 1584.44 FEET TO POINT 12 OF SAID LOT F; THENCE FEET TO POINT 11 OF SAID LOT F; THENCE
"W., 1175.97 FEET TO POINT 10 OF SAID LOT F; THENCE W., 546S5 FEET TO THE POINT OF BEGINNING; EXCEPTING ALL THOSE PORTIONS DESCRTBED IN DOCUMENTS
AND 01-0646857 OF OFFICIAL RECORDS; ALSO
G THEREFROM THOSE PORTIONS DESCRBED IN PARCELS A RECORDED FEBRUARY 15, 2002 AS INSTRUMENT
OF OFFICIAL RECORDS; ALSO THE SOUTHEASTERLY 152.00
152.00 EEET OF THAT CERTAIN PORTION OF CHO AGUA HEDIONDA, ACCORDING TO SAiD PARTITION
NO. 823, BOUNDED AND DESCRIBED AS FOLLOWS:
AT POINT 7 OF SAID LOT G WHICH POINT IS ALSO SHOWN AS
LOT F ON SAD PARTITION MAP NO. 823; THENCE FROM SAID
BEGINNING, S.51°15'45"E., ALONG THE NORTHEASTERLY LINE OF
G, 1042.27 FEET; THENCE AT RIGHT ANGLES S.37"44'1SMW. 440.57 ANGLES N,52"15'45"W., 1240.75 FEET TO A POINT
STERLY LINE OF SAID LOT G; THENCE N.62"OO'OO"E.
OF THE NORTHWESTERLY LINE OF SAID LOT G, 483.29
GINNING OF THE PROPERTY HERJ3N DESCRIBED, AFOREDESCRIBED LAND BEING M THE CI" OF CAIUXBAD,
SEPTEMBER IO, 2001 As INSTRUMENT NO. 01-0646854, 01-
E OF CALIFORMA.
G A TOTAL OF 396 ACRES MORE OR LESS.
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