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HomeMy WebLinkAboutSAN LUIS REY BAND OF MISSION INDIANS; 2011-12-14;CULTURAL RESOURCES TREATMENT AND TRIBAL MONITORING AGREEMENT (PRE-EXCAVATION AGREEMENT) CITY OF CARLSBAD BUENA VISTA LIFT STATION FORECEMAIN PROJECT CARLSBAD, CA PROJECT NO. 5508 I.PARTIES The Parties to this Agreement are (1) The San Luis Rey Band of Mission Indians ("San Luis Key Band" or "Tribe") and (2) the City of Carlsbad ("Developer/Owner"). Saving Sacred Sites is a party to this Agreement only with respect to Section XIII of this Agreement and Section IV of Addendum 1 to this Agreement. All notices to the Parties will be given at the addresses below: San Luis Rey Band of Mission Indians 18 89 Sunset Drive Vista, CA 92081 Counsel for the San Luis Rey Band of Mission Indians Merri Lopez-Keifer 513 Westaire Blvd. Martinez, CA 94553 II. Developer/Owner City of Carlsbad David Ahles 1645 Faraday Drive Carlsbad, CA 92008 SUBJECT MATTER This Agreement concerns a project known as Buena Vista Lift Station Forcemain ("Project"). The Project is located in the City of Carlsbad, County of San Diego, State of California. The Project is located on the northeast comer of Jefferson Street and Buena Vista Creek, and extending southwest within Jefferson Street to a point approximately 180 feet east of Interstate 5 ("Project Site"). It is our further understanding that the Project will consist of 3,350 linear feet of excavation, requiring approximately 230 hours of mitigation monitoring. Buena Vista Lift Station Forecemain City of Carlsbad Pre-Excavation Agreement Page 1 of 9 San Luis Rey Band of Mission Indians 1 The San Diego County Medical Examiner's Office will be provided a copy of this Agreement. The City of Carlsbad is also the Lead Agency for the Project ("Lead Agency"), and therefore responsible for the environmental compliance of this Project and shall maintain a copy of this Agreement for those purposes. III. 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 Tribal 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 §21000 et seq. ("CEQA") for this Project and the conditions of approval for this Project. This Agreement is effective as of the date provided for in Section XVI. 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. The San Luis Rey Band has designated Saving Sacred Sites to act on the Band's behalf with respect to the provisions of this Agreement. Any human remains, which are found in conjunction with the development of this Project, will be treated in accordance with Section VII of this Agreement. Any other cultural resources will be treated in accordance with Section VIII 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") upon notification to NAHC of the discovery of said remains at the Project site. Until such time, neither the San Luis Rey Band nor the 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 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 MLD. Should the NAHC determine that a member of an Native American 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 will 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, will continue in full force and effect. Buena Vista Lift Station Forecemain Pre-Excavation Agreement City of Carlsbad Page 2 of 9 San Luis Rey Band of Mission Indians VI. COORDINATION WITH COUNTY MEDICAL EXAMINER'S OFFICE The Lead Agency and the Developer will 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 will ensure that notification is provided to the NAHC as required by California Health and Safety Code Section 7050.5. VII. 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 V of this Agreement, the following provisions 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 disposed of with appropriate dignity. The San Luis Rey Band, pursuant to Section V of this Agreement, will complete its inspection within twenty-four (24) hours of receiving notification of the MLD determination from either the Developer or the NAHC. In addition, pursuant to California Public Resources Code §5097.98(f), upon discovery of multiple human remains, the Developer 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 Tribe understands that consultation with the land owner would 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 human remains must be accomplished in compliance with the California Public Resources Code Sections 5097.98(a) and (b). The San Luis Rey Band will have the final determination as to the disposition and treatment of human remains and grave goods; however, this cannot include preservation in-place or additional open space unless agreed to by the land owner. The San Luis Rey Band may wish to rebury said 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. The Band will discuss with the land owner on-site reburial, if necessary. 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. Buena Vista Lift Station Forecemain Pre-Excavation Agreement City of Carlsbad Page 3 of 9 San Luis Rey Band of Mission Indians Any cultural items found during the excavation should be returned to the Band and not curated in any facility. The Band will discuss with the land owner appropriate reburial of items excavated and when possible, such reburial should occur on the Project site. 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 Developer agrees to give all tribal ceremonial and cultural items which may be found at the Project site to the San Luis Rey Band for appropriate treatment, unless the Developer is otherwise ordered by a court or agency of competent jurisdiction. The Developer 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 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 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. 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 §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 withhold public disclosure of information related to such reburial pursuant to the specific exemption set forth in California Government Code Section 6254(r). In addition, the Parties agree that, unless otherwise required by law, the location of any cultural items associated with the Band 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. WORK STATEMENT FOR TRIBAL MONITORS The description of work for Tribal 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 will be conducted, the size of the monitoring crew, the powers of the monitoring crew, and provisions for compensation of the Tribal monitors. XL SUCCESSORS AND ASSIGNS Buena Vista Lift Station Forecemain Pre-Excavation Agreement City of Carlsbad Page 4 of 9 San Luis Rey Band of Mission Indians This 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 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 the California Environmental Quality Act CEQA, Public resources Code §21000 et seq.: the National Historic Preservation Act (NHPA), 16 U.S.C. §470 et seq.: California Public Resources Code Sections 5097.98, 5097.98(c), 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. §3001 et seq., the California Native American Graves Protection and Repatriation Act of 2001, California Health and Safety Code §8010 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. 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 Developer from any and all claims, obligations, liabilities, damages or actions arising out of, relating to or connected with the Projects. The Developer, its officers, members, directors, 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 Tribe from any and all claims, obligations, liabilities, damages or actions arising out of, relating to or connected with the Projects. Saving Sacred Sites, its officers, members, directors, 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 Developer from any and all claims, obligations, liabilities, damages or actions arising out of, relating to or connected with the Projects. Saving Sacred Sites will, pursuant to Section IV of Addendum 1 to this Agreement, refer appropriate monitors for the Project. Saving Sacred Sites will maintain comprehensive general liability property damage and bodily injury insurance in the amount of not less than $1 million per occurrence, and workmen's compensation insurance if required by law, throughout the term of this Agreement and provide Developer a current certificate of insurance extending such coverage to the monitor's conduct on the Project site prior to any on site monitoring activity. XIV. SEVERABILITY Should any part of this Agreement be found by any court or agency of competent jurisdiction to Buena Vista Lift Station Forecemain Pre-Excavation Agreement City of Carlsbad Page 5 of 9 San Luis Rey Band of Mission Indians II be to any extent invalid or unenforceable, the remainder of this 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. 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. Date: Tribe: By: Date: Tribe: By: November?, 2011 San Luis Rey Band of Mission Indians Melvin J. Vernon Tribal Captain Saving Sacred Sites Carmen Mojado Date: Developer: City of Carlsbad, CA By: May President Buena Vista Lift Station Forecemain City of Carlsbad Page 6 of9 Pre-Excavation Agreement San Luis Rey Band of Mission Indians Buena Vista Lift Station Forecemain City of Carlsbad Pre-Excavation Agreement Page 7 of 9 San Luis Rey Band of Mission Indians /3 ADDENDUM 1 TRIBAL MONITORING Agreement I. SPECIFICATIONS Given the nature and sensitivity of the archaeological sites and cultural resources that are or may be in the Project area, Saving Sacred Sites will refer Tribal monitors during the archaeological testing, studies, and surveys and during mitigation, grading, and ground-disturbing activities for the Project. Tribal monitors will work with the archaeological monitors to observe the grading of the Project. The monitors are 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. However, any recovery of artifacts or excavation for significance evaluations will be the responsibility of the Project archaeologist. All surface or subsurface artifacts of significance must be collected and mapped by the Project monitor. Tribal monitors will cooperate with the archaeological monitor to locate all cultural materials exposed during grading. Regarding grading activities, a pre-construction conference will be held by the Lead Agency and the Developer to clarify monitoring specifications with the grading contractor and/or Project manager, as well as the grading inspector of the jurisdiction in which the Project site is located. The San Luis Rey Band or the San Luis Rey Band's designated representative will be invited to participate in this conference. Archaeological observation will consist of a qualified archaeologist 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. II. PROJECT TO BE MONITORED Monitoring will encompass the Buena Vista Lift Station Forcemain and activities in conjunction with the development of that Project. The Project is located in the City of Carlsbad, County of San Diego, State of California. The Project Site is located in an area previously described in Section II of this Agreement. It is agreed that monitoring will be allowed for all clearing, grubbing, excavation, trenching, grading, preparation for infrastructure and other ground-disturbing activities, as well as archaeological excavation conducted in conjunction with the grading activity associated with the development of the Project, on and off-site. III. PROJECT CREW SIZES For purposes of determining Tribal monitoring crew sizes, a written schedule of excavation, testing, grading, and other ground-disturbing activities will be submitted by the Developer to the San Luis Rey Band or the San Luis Rey Band's designated representatives one week in advance of the commencement of these activities. The Parties to this Agreement anticipate the need for a Tribal monitoring crew consisting of one (1) person. If the scope of work changes to require additional monitors (for example, if inadvertent Buena Vista Lift Station Forecemain Pre-Excavation Agreement City of Carlsbad Page 8 of 9 San Luis Rey Band of Mission Indians discoveries of cultural resources are made or simultaneous grading in two (2) different geographic areas occurs), the Developer agrees to come to a reasonable agreement with the San Luis Rey Band regarding compensation of more than one (1) monitor. IV. COMPENSATION Saving Sacred Sites will refer the Tribal monitoring crew for this Project and will be responsible for coordinating their activities on this Project. Saving Sacred Sites recognizes that dangerous conditions can exist at the Project work site, particularly during grading operations, and agrees to assume responsibility for the safety of the Tribal monitoring crew while on the Project site. The Developer will compensate the Tribal monitors at the rate of $50.00 per hour plus reimbursement for all reasonable and documented mileage expenses at the mileage rate of $.55 cents per mile. The hourly rate of compensation paid to the Tribal monitor will be adjusted for inflation based on 2011 dollars. The adjustment, if any, will be calculated in accordance with the United States Department of Labor, Bureau of Labor Statistics, Revised Consumer Price Index. Hourly rate compensation adjustments will 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 Tribal monitors which are not due to actions of the San Luis Rey Band. The hourly rate will not be applicable to travel time to and from the Project site. The Developer agrees that Saving Sacred Sites may invoice the Developer for the Tribal monitors' compensation on a monthly basis. The Developer also agrees to remit payment in full to the following address within thirty (30) days of receipt of Saving Sacred Sites' invoice: Saving Sacred Sites 1889 Sunset Drive Vista, CA 98021 Buena Vista Lift Station Forecemain Pre-Excavation Agreement City of Carlsbad Page 9 of 9 San Luis Rey Band of Mission Indians