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HomeMy WebLinkAboutThe San Luis Rey Band of Mission Indians; 2024-01-08;CIP 5007/5009/5050 El Fuerte & Maerkle Motorized Valves Project Pre-Excavation Agreement CMWD Page 1 of 10 San Luis Rey Band of Mission Indians TRIBAL CULTURAL RESOURCES TREATMENT AND TRIBAL MONITORING AGREEMENT (“PRE-EXCAVATION AGREEMENT”) RE: CIP 5007/5009/5050 EL FUERTE & MAERKLE MOTORIZED VALVES PROJECT (MAERKLE SITE) CARLSBAD, CA I. PARTIES This Pre-Excavation Agreement is made and entered into as of the ________ day of __________, 20__, by and between (1) The San Luis Rey Band of Mission Indians (“San Luis Rey Band” or “Tribe”) and (2) Carlsbad Municipal Water District, a public agency organized under the Municipal Water Act of 1911 and a subsidiary district of the City of Carlsbad (“CMWD” or “Landowner”). The Tribe and CMWD are sometimes referred to in this Pre-Excavation Agreement as a “Party” and collectively as the “Parties.” All notices to the Parties will be given at the addresses below: San Luis Rey Band of Mission Indians 1889 Sunset Drive Vista, CA 92081 Landowner Scott Chadwick Executive Manager CMWD 5950 El Camino Real Carlsbad, CA 92008 With copy to: General Counsel 1200 Carlsbad Village Drive Carlsbad, CA 92008 DocuSign Envelope ID: D2CCD6A1-13DB-41D5-8D2B-664830B35D71DocuSign Envelope ID: 01E8AC39-1CC0-4EE8-B868-4F593984F2FD CIP 5007/5009/5050 El Fuerte & Maerkle Motorized Valves Project Pre-Excavation Agreement CMWD Page 2 of 10 San Luis Rey Band of Mission Indians II. SUBJECT MATTER This Agreement concerns a project known as the El Fuerte and Maerkle Motorized Valves Project (“Project”). The Project is located in the City of Carlsbad, in the County of San Diego, State of California. The Project proposes ground disturbing activities for the valve vault installation. The Project area of concern is located at the Maerkle Reservoir site in Carlsbad, CA (“Project Site/Area”). The San Diego County Medical Examiner’s Office will be provided a copy of this Pre-Excavation Agreement by the Tribe. The City of Carlsbad the Lead Agency for the Project ("Lead Agency") and therefore responsible for the environmental compliance of this Project. III. PURPOSE The purpose of this Pre-Excavation Agreement is to formalize procedures for the treatment of Native American human remains (“human remains”), and other Native American grave goods, ceremonial items, and cultural items (collectively, “Cultural Items” or “Tribal Ceremonial and Cultural Items”), in the event that any are found in conjunction with the construction of this Project. This Pre-Excavation Agreement is in furtherance of the protection of significant Native American cultural resources or unique archaeological resources consistent with the California Environmental Quality Act, Cal. Public Resources Code Section 21000 et seq. ("CEQA"), the conditions of approval for this Project, and subject to compliance with all applicable laws and permits. This Pre-Excavation Agreement is effective as of the date first written above. IV. CULTURAL AFFILIATION The Parties agree that the Project Area is in the vicinity of land which has been traced to, and traditionally occupied by, the San Luis Rey Band. The San Luis Rey Band has designated Saving Sacred Sites to act on the Tribe's behalf with respect to the provisions of this Pre-Excavation Agreement. Any human remains, which are found in conjunction with the construction of this Project, will be treated in accordance with Section VII of this Agreement. Any other Cultural Items will be treated in accordance with Section VIII of this Agreement. DocuSign Envelope ID: D2CCD6A1-13DB-41D5-8D2B-664830B35D71DocuSign Envelope ID: 01E8AC39-1CC0-4EE8-B868-4F593984F2FD CIP 5007/5009/5050 El Fuerte & Maerkle Motorized Valves Project Pre-Excavation Agreement CMWD Page 3 of 10 San Luis Rey Band of Mission Indians V. MOST LIKELY DESCENDANT In the event that Native American human remains are found during construction 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 human remains at the Project Site. Until such time, neither the San Luis Rey Band nor the Landowner guarantees that the San Luis Rey Band or one of its members will be so named. However, given the location of the Project Site and the history and prehistory of the Project Area, the Parties agree that their good faith belief is that, when and 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 as the MLD. Should the NAHC determine that a member of a Native American tribe other than the San Luis Rey Band is the MLD, the provisions of this Pre-Excavation Agreement relating to the treatment of such Native American human remains will be null and void in their entirety. VI. COORDINATION WITH COUNTY MEDICAL EXAMINER’S OFFICE The Lead Agency and the Landowner will immediately contact the San Diego County Medical Examiner (“Medical Examiner”) and the San Luis Rey Band in the event that any human remains are discovered during the construction of the Project. Once the Medical Examiner is contacted, a determination of whether the remains are human shall be conducted on-site and in situ where they were discovered by a forensic anthropologist with experience in the field of human and faunal osteology. It is understood by the Parties that any unnecessary transportation of the suspected Native American remains would be considered an undignified treatment of those remains. Moreover, it is understood by the Parties that, to the extent required by law and as may be feasible, the suspected and/or identified Native American remains shall stay and/or remain on-site in a secure location, preferably in situ, until the MLD is so identified and a recommendation can be provided in accordance with the terms of this Pre-Excavation Agreement. The Medical Examiner will ensure that notification is provided to the NAHC as required by California Health and Safety Code Section 7050.5(c). The Landowner agrees that no construction and/or earth disturbing activities may take place near the area of discovery until the Medical Examiner has complied with California Health and Safety Code Section 7050.5 and the procedures outlined in California Public Resources Code Section 5097.98 have been completed. DocuSign Envelope ID: D2CCD6A1-13DB-41D5-8D2B-664830B35D71DocuSign Envelope ID: 01E8AC39-1CC0-4EE8-B868-4F593984F2FD CIP 5007/5009/5050 El Fuerte & Maerkle Motorized Valves Project Pre-Excavation Agreement CMWD Page 4 of 10 San Luis Rey Band of Mission Indians VII. TREATMENT AND DISPOSITION OF HUMAN REMAINS In the event that Native American human remains are found during any phase 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 V of this Pre-Excavation Agreement, the provisions of this Section VII will apply. The San Luis Rey Band will be allowed, pursuant to California Public Resources Code Section 5097.98(a), 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 repatriated with appropriate dignity. The Tribe will complete its inspection and provide a recommendation or preferences for treatment within forty-eight (48) hours of being granted access to the Project Site in accordance with California Public Resources Code Section 5097.98(a). 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. When there is an inadvertent discovery of human remains, the Parties acknowledge the Tribe’s cultural practice and desire for the human remains to be left “in situ,” or reburied within an area near or in close proximity to the area of discovery and not be subject to future disturbances over a prolonged period of time. A good faith effort will be made by the Parties to accommodate the Tribe’s cultural practices. In addition, pursuant to California Public Resources Code Section 5097.98(f), upon discovery of multiple human remains, the Landowner, agrees to consult with the Tribe to consider appropriate treatment of multiple human remains. Culturally appropriate treatment of such remains may be ascertained from a review of the site utilizing cultural and archaeological standards. The Parties agree that good faith consultation with one another will be required in discussing appropriate 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 San Luis Rey Band's customs and traditions. Reburial of DocuSign Envelope ID: D2CCD6A1-13DB-41D5-8D2B-664830B35D71DocuSign Envelope ID: 01E8AC39-1CC0-4EE8-B868-4F593984F2FD CIP 5007/5009/5050 El Fuerte & Maerkle Motorized Valves Project Pre-Excavation Agreement CMWD Page 5 of 10 San Luis Rey Band of Mission Indians human remains must be accomplished in compliance with the California Public Resources Code Section 5097.98. The Tribe and the Landowner will have the final determination as to the disposition and treatment of the Native American human remains and/or Native American grave goods. The Parties acknowledge that it is the tradition and preference of the San Luis Rey Band to rebury their ancestor remains, associated grave goods, ceremonial goods, or cultural items on or in close proximity of the site of their discovery and in an area which will not be subject to future disturbances over a prolonged period of time. If the Landowner cannot come to an agreement with the Tribe, the Landowner acknowledges its responsibility under California Public Resources Code Section 5097.98(e) in that the Landowner shall reinter the human remains and items associated with Native American remains with appropriate dignity on the property in a location not subject to further and future surface disturbance. Landowner further acknowledges that upon the discovery of Native American remains, the Landowner, in accordance with California Public Resources Code Section 5097.98(b), shall ensure that the immediate vicinity where the Native American remains are located is not damaged or disturbed by further development activity. The Parties acknowledge that the Tribe’s highest priority is to avoid disturbing human remains through consultation and appropriate avoidance and mitigation measures. It is understood by the Parties that avoidance of human remains and grave goods may require changes to the Landowner’s Project plans and activities. No pictures may be taken of the remains and/or associated burial goods, except by written authorization from the Tribe. In addition, no photographs or electronic means of recording the human remains and/or associated burial goods is permitted. Any Native American remains, associated burial and/or funerary goods, and Cultural Items found during the excavation should be returned to the San Luis Rey Band and not curated in any facility, in accordance with the Tribe’s traditional and cultural beliefs. DocuSign Envelope ID: D2CCD6A1-13DB-41D5-8D2B-664830B35D71DocuSign Envelope ID: 01E8AC39-1CC0-4EE8-B868-4F593984F2FD CIP 5007/5009/5050 El Fuerte & Maerkle Motorized Valves Project Pre-Excavation Agreement CMWD Page 6 of 10 San Luis Rey Band of Mission Indians VIII. TREATMENT OF CULTURAL ITEMS Treatment of ceremonial and Cultural Items will reflect the religious beliefs, customs, and practices of the San Luis Rey Band. The Landowner agrees to give all tribal ceremonial and cultural items which may be found at the Project Site to the San Luis Rey Band. Tribal ceremonial, religious and/or burial related items may not be removed from the Project Site without the express written consent by the Tribe. The Tribe shall be responsible for appropriate treatment of Cultural Items, unless the Landowner is otherwise ordered by a court or agency of competent jurisdiction. The Landowner, therefore, waives any and all claims to ownership of Tribal Ceremonial and Cultural Items that may be found on the Project Site in favor of the San Luis Rey Band. If temporary possession of Tribal Ceremonial or Cultural Items (by an outside agency or individual) is necessary as part of the Environmental Impact Review mitigation process, said agency or individual will not possess those items for longer than is reasonably necessary. If temporary possession of Tribal Ceremonial or Cultural Items by an entity or individual other than the San Luis Rey Band is necessary, said entity or individual shall not possess those items for longer than is reasonably necessary. If any items are to be analyzed and/or evaluated by said agency, entity and/or individual, the Tribe reserves the right to have a representative of their choosing to be present during such analysis and/or evaluation of the cultural resource. The Landowner agrees to consult with the Tribe when unique archaeological resources are discovered during the Project and in determining culturally-appropriate treatment of those resources, including but not limited to potentially avoiding the resource(s), placing a conservation easement over the resource(s), funding an ethnographic or ethnohistoric study of the resource(s), and/or developing a data recovery plan. IX. NON-DISCLOSURE OF LOCATION OF REBURIALS AND CULTURAL ITEMS It is understood by the Parties that, unless otherwise required by law, the site of any reburial of Native American human remains will not be disclosed and will not be governed by public disclosure requirements of the California Public Records Act, Cal. Govt. Code Section 6250 et seq. The site of reburial will be disclosed (if requested) to the entity ultimately responsible for managing all the Open Space associated with the Project. The Medical Examiner will also withhold public disclosure of information related to such reburial pursuant to the specific exemption set forth in California Government Code Section 6254(r). DocuSign Envelope ID: D2CCD6A1-13DB-41D5-8D2B-664830B35D71DocuSign Envelope ID: 01E8AC39-1CC0-4EE8-B868-4F593984F2FD CIP 5007/5009/5050 El Fuerte & Maerkle Motorized Valves Project Pre-Excavation Agreement CMWD Page 7 of 10 San Luis Rey Band of Mission Indians In addition, the Parties agree that, unless otherwise required by law, the location of any Cultural Items associated with the Tribe which have been reburied pursuant to Section VII will not be disclosed by either Party. However, the Band may disclose the location to other tribal members as necessary for maintenance and preservation efforts. X. ROLE OF NATIVE AMERICAN AND/OR TRIBAL MONITORS IN PROTECTING AND PRESERVING THE TRIBE’S SACRED CULTURAL RESOURCES The Landowner agrees to permit Native American and/or Tribal monitoring during grubbing, grading and/or other ground disturbing activities of soils, including the placement of imported fill materials, to identify any evidence of potential archaeological resources (“Project Activities”). The Parties agree that if the Lead Agency modifies the Project’s mitigation measures for tribal cultural resources that limits the presence of Native American and/or Tribal monitors during the placement of imported fill materials, such as requiring proper documentation stating that the fill material is absent any cultural resources, then both Parties will honor any such modification. Landowner further agrees that to mitigate any potential impact to the Tribe’s sacred cultural resources during Project Activities that Tribal monitors shall be empowered to stop or relocate excavation activities for short periods of time to allow the Project archaeologist to conduct controlled excavation for evaluation of the significance of discovered cultural items. Developer agrees to invite the Project’s designated Native American and/or Tribal monitor (Saving Sacred Sites) to participate in any and all pre-construction conference(s) held by the Lead Agency and/or the Landowner to best clarify monitoring specifications and/or cultural landscape sensitivities with the grading contractor, grading inspector and/or Project manager. XI. SUCCESSORS AND ASSIGNS This Pre-Excavation Agreement is binding upon and inures 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. XII. ENVIRONMENTAL COMPLIANCE Nothing in this Pre-Excavation Agreement excuses the Lead Agency on this Project or the Developer from their obligations under any applicable state or federal laws or regulations, including but not limited to CEQA; the National Historic Preservation Act (“NHPA”), 16 U.S.C. Section 470 et seq.; California Public Resources DocuSign Envelope ID: D2CCD6A1-13DB-41D5-8D2B-664830B35D71DocuSign Envelope ID: 01E8AC39-1CC0-4EE8-B868-4F593984F2FD CIP 5007/5009/5050 El Fuerte & Maerkle Motorized Valves Project Pre-Excavation Agreement CMWD Page 8 of 10 San Luis Rey Band of Mission Indians Code Sections 5097.98, and 5097.99; California Health and Safety Code Section 7050.5(c); California Government Code Section 6254; the Native American Graves Protection and Repatriation Act, 25 U.S.C. Section 3001 et seq., the California Native American Graves Protection and Repatriation Act of 2001, California Health and Safety Code Section 8010 et seq.; and the First Amendment to the United States Constitution. Nothing in this Pre-Excavation Agreement is intended to make any of the above-referenced laws applicable where such laws would otherwise be inapplicable. XIII. INSURANCE AND INDEMNITY The Tribe, its officers, members, directors, council members, agents, employees, affiliates, successors, subsidiaries, assigns, and related organizations or entities, in no way agree to defend, hold harmless, indemnify nor guarantee in any way the Landowner from any and all claims, obligations, liabilities, damages or actions arising out of, relating to or connected with the Project. The Landowner, its officers, elected and appointed officials, employees, affiliates, successors, subsidiaries, assigns, and related organizations or entities, in no way agree to defend, hold harmless, indemnify nor guarantee in any way the Tribe from any and all claims, obligations, liabilities, damages or actions arising out of, relating to or connected with the Project. XIV. SEVERABILITY Should any part of this Pre-Excavation Agreement be found by any court or agency of competent jurisdiction to be to any extent invalid or unenforceable, the remainder of this Pre-Excavation Agreement will not be affected thereby and will be valid and enforceable to the fullest extent permitted by law. XV. LIMITATION ON SCOPE This Agreement is unique to this Project only and does not set a precedent for other projects. XVI.ENTIRE AGREEMENT This Pre-Excavation Agreement and its provisions embody the entire agreement and understanding between he Parties. Any amendment and/or modification to this Pre-Excavation Agreement must be made in writing and agreed to by both Parties. DocuSign Envelope ID: D2CCD6A1-13DB-41D5-8D2B-664830B35D71DocuSign Envelope ID: 01E8AC39-1CC0-4EE8-B868-4F593984F2FD CIP 5007/5009/5050 El Fuerte & Maerkle Motorized Valves Project Pre-Excavation Agreement CMWD Page 9 of 10 San Luis Rey Band of Mission Indians XVII. BREACH OF CONTRACT Any violation and/or disregard of the terms of this Pre-Excavation Agreement, material or otherwise, will constitute a breach of contract and allow either Party to seek judicial relief against the other Party in the applicable court of law. Relief sought by the Party may be injunctive or monetary, or both, as applicable. XVIII. COUNTERPARTS This Pre-Excavation 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. DocuSign Envelope ID: D2CCD6A1-13DB-41D5-8D2B-664830B35D71DocuSign Envelope ID: 01E8AC39-1CC0-4EE8-B868-4F593984F2FD CIP 5007/5009/5050 El Fuerte & Maerkle Motorized Valves Project Pre-Excavation Agreement CMWD Page 10 of 10 San Luis Rey Band of Mission Indians IN WITNESS WHEREOF, the Parties have executed this Pre-Excavation Agreement as of the date first written above. San Luis Rey Band of Mission Indians Carlsbad Municipal Water District Melvin J. Vernon Scott Chadwick Tribal Captain Executive Manager Date: Date: Attest: Sherry Freisinger, City Clerk APPROVED AS TO FORM: CINDIE K. McMAHON, City Attorney BY: _____________________________ City Attorney DocuSign Envelope ID: D2CCD6A1-13DB-41D5-8D2B-664830B35D71 12/7/2023 DocuSign Envelope ID: 01E8AC39-1CC0-4EE8-B868-4F593984F2FD 12/14/2023