HomeMy WebLinkAbout2023-08-29; City Council; ; Authorization of Pre-Excavation Agreements with Native American tribes, including for the Recycled Water Phase III, D-4 Reservoir ProjectCA Review GH
Meeting Date: Aug. 29, 2023
To: Mayor/President and City Council/Board Members
From: Scott Chadwick, City Manager/Executive Manager
Staff Contacts: Dave Padilla, Utilities Engineering Manager/District Engineer
dave.padilla@carlsbadca.gov, 442-339-2356
Neil Irani, Utilities Associate Engineer
neil.irani@carlsbadca.gov, 442-339-2354
Subject: Authorization of Pre-Excavation Agreements with Native American tribes,
including for the Recycled Water Phase III, D-4 Reservoir Project
Districts: All
Recommended Actions
1.As the Board of Directors of the Carlsbad Municipal Water District, adopt a resolution
authorizing the Executive Manager to execute a pre-excavation agreement between the
Carlsbad Municipal Water District and the San Luis Rey Band of Mission Indians for tribal
cultural resources treatment and monitoring for the Recycled Water Phase III, D-4 Reservoir
Project.
2.As the Board of Directors of the Carlsbad Municipal Water District, adopt a resolution
delegating authority to the Executive Manager to execute pre-excavation agreements for
tribal cultural resources treatment and monitoring for district capital improvement program
projects.
3.As the City Council, adopt a resolution delegating authority to the City Manager to execute
pre-excavation agreements for tribal cultural resources treatment and monitoring for city
capital improvement program projects.
Executive Summary
The Board of Directors is being asked to approve a pre-excavation agreement with the San Luis
Rey Band of Mission Indians for construction of a recycled water storage reservoir and related
site improvements on Black Rail Road south of Poinsettia Lane, as shown in Exhibit 4.
The agreement formalizes the procedures for the treatment and protection of Native American
human remains, grave goods, ceremonial items and cultural items, if such items are discovered
during project construction. The agreement is consistent with City Council Policy No. 83 - Tribal
Cultural Resource Protection provided in as Exhibit 5.
The authority to execute the pre-excavation agreement rests with the City Council and the
Carlsbad Municipal Water District Board of Directors depending on the project, though the City
Council and Board of Directors may delegate that authority to the City Manager or CMWD’s
Aug. 29, 2023 Item #2 Page 1 of 21
JOINT CI TY c,o u NCIL AND
CARLSBAID ,MUNICI PA l WATER DISTRI CT
Staff Report
Executive Manager, as provided in the section of the Carlsbad Municipal Code that details the
powers and duties of the City Manager (Section 2.12.035, subsection (L)).
These pre-excavation agreements are not unique to the Recycled Water Phase III, D-4 Reservoir
Project. They may be required for any project that requires excavation. Timely processing of
these agreements reduces the potential for cost increases due to construction delays. Because
of this, staff desire to streamline the approval process for these agreements for future CIP
projects and request that the City Council and the CMWD Board delegate the authority to sign
these agreements to the City Manager or Executive Manager when the agreements are:
•Necessary for implementation of required Native American monitoring in connection
with the planning or design phase investigations or construction of Capital Improvement
Program projects,
•Recommended by the City Engineer, Deputy City Engineer or District Engineer, and
•Approved by the City Attorney’s Office.
To minimize delay and facilitate the agreement approval process for future construction
projects that have been approved by the City Council or the CMWD Board, staff recommend
that:
•The CMWD Board adopt the resolution attached as Exhibit 1, providing the approval
specifically needed for the D-4 Reservoir Project
•The CMWD Board adopt the resolution attached as Exhibit 2, delegating authority to the
Executive Manager to execute standard pre-excavation agreements on behalf of the
CMWD when the criteria listed above are satisfied
•The City Council adopt the resolution attached as Exhibit 3, delegating authority to the
City Manager to execute standard pre-excavation agreements on behalf of the city
when the criteria listed above are satisfied
Explanation & Analysis
Recycled Water Phase III, D-4 Reservoir Project
The Recycled Water Phase III, D-4 Reservoir Project, Capital Improvement Program Project No.
5210, will build the fourth reservoir on what is known as the D-tanks site, and is the last
remaining component of CMWD’s Recycled Water Phase III Plan. The project will also include
site grading, new onsite piping for tank maintenance and recycled water distribution, paving,
electrical improvements, storm drain improvements, and landscape and irrigation
improvements.
The CMWD Board authorized the project for bid on Nov. 8, 2022, and awarded the construction
contract on June 6, 2023.1
A cultural resources inventory for the Recycled Water Phase III Plan was completed in 2013 to
determine the location of a previously recorded archaeological site near the project site. The
study identified one known archaeological site near the storage tank site, artifacts had been
recovered before the existing tanks were built.
1 Under the operating agreement between the city and the CMWD, city contracting rules apply to the CMWD, and
city staff administer the contracts.
Aug. 29, 2023 Item #2 Page 2 of 21
The site was tested and determined not to contain significant cultural resources in 2018 during
the preparation of the environmental review document known as the addendum to the final
initial study/mitigated negative declaration (EIA 12-02). However, the initial study/mitigated
negative declaration that was adopted set forth cultural resource mitigation measures that that
include retaining a qualified archaeologist and Native American monitor to provide
archaeological and Native American monitoring in the areas that intersect with known
archaeological sites, and within 100-ffeet of those sites buffer surrounding them.
With the implementation of these mitigation measures, the project’s potential impacts to
cultural resources were determined to be less than significant.
Pre-excavation agreement
The city’s Cultural Resources Guidelines, which were developed in 1990, were consistent with
the cultural and historical resource guidelines set forth by the National Historic Preservation Act
and the California Environmental Quality Act. The guidelines established performance
standards for resource investigation and presented a systematic method of preserving
identified resources.
City Council Policy No. 83 - Tribal Cultural Resource Protection calls for the city to “recognize
[the city’s] responsibility to protect with improved certainty the important historical and
cultural values of current Tribal Cultural Resources within the city limits and to establish an
improved framework for the city's consultations with Native American tribes that are
traditionally and culturally affiliated with the City of Carlsbad, including the San Luis Rey Band.”
In 2017, the city updated its guidelines, now called the Tribal, Cultural and Paleontological
Guidelines, provided as Exhibit 5, to address the regulatory changes and required procedures.
The revised guidelines provide a framework for the roles and responsibilities of those
responsible for compliance and the processes to assess cultural resources. Based on the
guidelines, when Native American monitoring is required, pre-excavation agreements are
required before the ground is disturbed to address potential impacts to tribal cultural
resources.
Fiscal Analysis
For the D-4 Reservoir Project $44,024 is committed for archaeological and Native American
monitoring under a contract with ASM Affiliates. ASM Affiliates will be sub-contracting the
tribal monitoring to the San Luis Rey Band. No additional funding is expected to be required.
Next Steps
With approval of the proposed resolution for the D-4 Reservoir Project provided as Exhibit 1,
staff will authorize the district’s cultural monitoring consultant to implement the required
monitoring for excavation activities associated with the project. Construction will proceed and
stay on schedule, with an estimated completion date of fall 2024.
With approval of the proposed resolutions provided as Exhibits 2 and 3, the City Manager or
Executive Manager, will be authorized to execute pre-excavation agreements for tribal cultural
resources treatment and monitoring for future Capital Improvement Program projects.
Aug. 29, 2023 Item #2 Page 3 of 21
Environmental Evaluation
In 2012, the CMWD Board adopted Resolution No. 1455, approving the project’s initial
study/mitigated negative declaration and mitigation monitoring and reporting program. (EIA
12-02, State Clearing House SCH# 2012091049). The D-4 Reservoir Project is a component of
the Phase III Recycled Water Project and is subject to the mitigation measures that are
identified in the mitigation monitoring and reporting program for that project
An addendum to that declaration and program document that was approved by the CMWD
Board on July 17, 2018, (Resolution No. 1601) included an evaluation of the potential
environmental impacts associated with moving the storage tank 150 feet east of the original
location, the site that that had been studied in the 2012 initial study/mitigated negative
declaration. On July 20, 2022, the Planning Commission approved Resolution No. 7457, finding
that the proposed project is within the scope of the prior environmental documents and that
no further environmental documentation is required under California Environmental Quality
Act Guidelines Section 15162.
Exhibits
1.CMWD Board resolution for Recycled Water Phase III, D-4 Reservoir Project
2.CMWD Board resolution to delegate authority for pre-excavation agreements
3.City Council resolution to delegate authority for pre-excavation agreements
4.Location map
5.Carlsbad Tribal, Cultural and Paleontological Resources Guidelines (on file in the Office of
the City Clerk)
Aug. 29, 2023 Item #2 Page 4 of 21
RESOLUTION NO. 1716
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD
MUNICIPAL WATER DISTRICT OF THE CITY OF CARLSBAD, CALIFORNIA,
AUTHORIZING THE EXECUTIVE MANAGER TO EXECUTE A PRE-EXCAVATION
AGREEMENT BETWEEN THE CARLSBAD MUNICIPAL WATER DISTRICT AND
THE SAN LUIS REY BAND OF MISSION INDIANS FOR TRIBAL CULTURAL
RESOURCES TREATMENT AND MONITORING FOR THE RECYCLED WATER
PHASE 111, D-4 RESERVOIR PROJECT
WHEREAS, the Carlsbad Municipal Water District, or CMWD, is a subsidiary district of the City
of Carlsbad; and
WHEREAS, City Council Policy No. 83 -Tribal Cultural Resource Protection calls for the city to:
"recognize [the city's] responsibility to protect with improved certainty the important historical and
cultural values of current Tribal Cultural Resources within the city limits and to establish an improved
framework for the city's consultations with Native American Tribes that are traditionally and culturally
affiliated with the City of Carlsbad, including the San Luis Rey Band;" and
WHEREAS, the Carlsbad Tribal, Cultural, and Paleontological Resources Guidelines from 2017
require the execution of pre-excavation agreements prior to ground-disturbing activities that require
monitors to address potential impacts to tribal cultural resources; and
WHEREAS, it is necessary to enter into a pre-excavation agreement for such activities in
connection with the Recycled Water Phase Ill, D-4 Reservoir Project, Capital Improvement Program
Project No. 5210; and
WHEREAS, the CMWD Board's execution of these agreements is a condition precedent to the
implementation of Native American monitoring requirements associated with the project; and
WHEREAS, the District Engineer and Office of the General Counsel recommend the execution
of this pre-excavatic�>n agreement; and
WHEREAS, the CMWD Board has determined that it is in the public interest to delegate certain
powers to the Executive Manager in accordance with the Carlsbad Municipal Code Section 2.12.035{L).
Exhibit 1
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NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Municipal Water District Board of Directors
of the City of Carlsbad, California, as follows:
1.That the above recitations are true and correct.
2.That the Executive Manager is hereby authorized to sign the pre-excavation agreement
with the San Luis Rey Band of Mission Indians for the Recycled Water Phase Ill, D-4
Reservoir Project, Capital Improvement Program Project No. 5210, provided as
Attachment A to this resolution.
PASSED, APPROVED AND ADOPTED at a Joint Meeting of the City Council of the City of Carlsbad
and the Board of Directors of the Carlsbad Municipal Water District of the City of Carlsbad, California
on the 29th day of August, 2023, by the following vote, to wit:
AYES:
NAYS:
ABSTAIN:
ABSENT:
Blackburn, Bhat-Patel, Acosta, Burkholder, Luna.
None.
None.
None.
KEITH BLACKBURN, President
SHERRY FREISINGER, Secretary
{SEAL)
Aug. 29, 2023 Item #2 Page 6 of 21
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Attachment A
TRIBAL CULTURAL RESOURCES TREATMENT
AND
TRIBAL MONITORING AGREEMENT
("PRE-EXCAVATION AGREEMENT")
RE: CIP 5210 RECYCLED WATER PHASE III, D-4 RESERVOIR PROJECT
I.PARTIES
CARLSBAD, CA
This Pre-Excavation Agreement is made and entered into as of the 1yq day of
� • , 201:3, 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 Rev Band of Mission Indians
1889 Sunset Drive
Vista, CA 92081
Landowner
Keith Blackburn
President
CMWD
5950 El Camino Real
Carlsbad, CA 92008
With copy to:
General Counsel
1200 Carlsbad Village Drive
Carlsbad, CA 92008
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II.SUBJECT MATTER
Attachment A
This Agreement concerns a project known as the Recycled Water Phase III, D-4 Reservoir
Project ("Project"). The Project is located in the City of Carlsbad, in the County of San Diego,
State of California at what is known as the D-tanks site on Black Rail Road south of Poinsettia
Lane ("Project Site/Area"). The Project proposes ground disturbing activities for the new recycled
water reservoir and on-site yard piping. 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
comp I iance 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 Vlll of this Agreement.
V.MOS T 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
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Attachment A
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. rt 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.
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:
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Attachment A
(I)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.
ln addition, pursuant to California Public Resources Code Section 5097.98(£), 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
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.
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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 fu1ther 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. ln 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.
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)
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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 Jtems 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 Patties 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).
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
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absent any cultural resources, then both Parties will honor any such modification. Landowner
fmiher 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 Code Sections 5097.98 and 5097.99; California
Health and Safety Code Section 7050.S(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 80 IO 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.
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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 the Parties. Any amendment and/or modification to this Pre-Excavation Agreement must
be made in writing and agreed to by both Parties.
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.
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DocuSign Envelope ID: C86161 A2-A31 A-46A6-A 165-1 B0O69AD7B38
Attachment A
rN WITNESS WHEREOF, the Parties have executed this Pre-Excavation Agreement as of the date
first written above.
San Luis Rey Band of Mission Indians
n;�J (4fbu1A= &,lwlA. J \anMIA-
Melvin J. Vernon
Tribal Captain
Date: __ 8_/_2_4_/_2_02_3 ____ _
APPROVED AS TO FORM:
CINDIE K. McMAHON, City Attorney
BY: �/c:.-�
.Dej:)uty City Attorney
Municipal Water District
Scott Chadwick
Executive Manager
Attest:
Sherry Preisinger, City Clerk
CIP 5210 Recycled Water Phase Ill, D-4 Reservoir Project 2023 Pre-Excavation Agreement
CMWD Page 9 of9 San Luis Rey Band of Mission Indians
Aug. 29, 2023 Item #2 Page 15 of 21
RESOLUTION NO. 1717
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD
MUNICIPAL WATER DISTRICT OF THE CITY OF CARLSBAD, CALIFORNIA,
DELEGATING AUTHORITY TO THE EXECUTIVE MANAGER TO EXECUTE PRE
EXCAVATION AGREEMENTS FOR TRIBAL CULTURAL RESOURCES
TREATMENT AND MONITORING FOR DISTRICT CAPITAL IMPROVEMENT
PROGRAM PROJECTS
WHEREAS, the Carlsbad Municipal Water District, or CMWD, is a subsidiary district of the City
of Carlsbad; and
WHEREAS, City Council Policy No. 83 -Tribal Cultural Resource Protection calls for the city to:
"recognize [the city's] responsibility to protect with improved certainty the important historical and
cultural values of current Tribal Cultural Resources within the city limits and to establish an improved
framework for the city's consultations with Native American Tribes that are traditionally and culturally
affiliated with the City of Carlsbad, including the San Luis Rey Band;" and
WHEREAS, the Carlsbad Tribal, Cultural, and Paleontological Resources Guidelines from 2017
require the execution of pre-excavation agreements prior to ground-disturbing activities that require
monitors to address potential impacts to tribal cultural resources; and
WHEREAS, the CMWD Board's execution of these agreements is required for the
implementation of Native American monitoring associated with Capital Improvement Program projects
that may impact tribal cultural resources; and
WHEREAS, the CMWD Board has determined that it is in the public interest to delegate certain
powers to the Executive Manager in accordance with the Carlsbad Municipal Code Section 2.12.035(L).
NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Municipal Water District Board of Directors
of the City of Carlsbad, California, as follows:
1.That the above recitations are true and correct.
2.That the Executive Manager is hereby delegated the authority to sign pre-excavation
agreements for water and recycled water Capital Improvement Program projects when
recommended by the District Engineer and upon the advice of the Office of the General
Counsel.
Aug. 29, 2023 Item #2 Page 16 of 21
Exhibit 2
PASSED, APPROVED AND ADOPTED at a Joint Meeting of the City Council of the City of Carlsbad
and the Board of Directors of the Carlsbad Municipal Water District of the City of Carlsbad, California
on the 29th day of August, 2023, by the following vote, to wit:
AYES:
NAYS:
ABSTAIN:
ABSENT:
Blackburn, Bhat-Patel, Acosta, Burkholder, Luna.
None.
None.
None.
-re
�
KEITH BLACKBURN, President
SHERRY FREISINGER, Secretary
(SEAL)
Aug. 29, 2023 Item #2 Page 17 of 21
RESOLUTION NO. 2023-227
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, DELEGATING AUTHORITY TO THE CITY MANAGER TO EXECUTE
PRE-EXCAVATION AGREEMENTS FOR TRIBAL CULTURAL RESOURCES
TREATMENT AND MONITORING FOR CITY CAPITAL IMPROVEMENT
PROGRAM PROJECTS
WHEREAS, City Council Policy No. 83 -Tribal Cultural Resource Protection calls for the city to:
"recognize [the city's] responsibility to protect with improved certainty the important historical and
cultural values of current Tribal Cultural Resources within the city limits and to establish an improved
framework for the city's consultations with Native American Tribes that are traditionally and culturally
affiliated with the City of Carlsbad, including the San Luis Rey Band;" and
WHEREAS, the Carlsbad Tribal, Cultural, and Paleontological Resources Guidelines from 2017
require the execution of pre-excavation agreements prior to ground-disturbing activities that require
monitors to address potential impacts to tribal cultural resources; and
WHEREAS, the city's execution of these agreements is a condition precedent to the
implementation of Native American monitoring associated with Capital Improvement Program projects
that may impact tribal cultural resources; and
WHEREAS, the City Council has determined that it is in the public interest to delegate certain
powers to the City Manager in accordance with the Carlsbad Municipal Code Section 2.12.035(L).
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1.That the above recitations are true and correct.
2.That the City Manager is hereby delegated the authority to sign pre-excavation
agreements for Capital Improvement Program projects when recommended by the City
Engineer or the Deputy City Engineer, Utilities Department, and upon the advice of the
City Attorney's Office.
Aug. 29, 2023 Item #2 Page 18 of 21
Exhibit 3
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 29th day of August, 2023, by the following vote, to wit:
AYES:
NAYS:
ABSTAIN:
ABSENT:
KEITH BLACKBURN, Mayor
-fr SHERRY FREISINGER, City Clerk
(SEAL)
Aug. 29, 2023 Item #2 Page 19 of 21
4
Exhibit 4
Aug. 29, 2023 Item #2 Page 20 of 21
NOT TO SCALE
LOCATION MAP
S/Ti
PACIFIC OCEAN
PROJECT NAME
THE RECYCLED WATER STORAGE
RESERVOIR AT THE D TANK SITE
DRAWN BY: SCOTT EVANS. CARLSBAD UTIUTIES DEPT. J/09/16 D: \UTIUTIES DEPARTMENT\LOCATION MAPS\AUTOCAD\5210.DltG
PROJECT EXHIBIT
NUMBER
5210
Exhibit 5
Carlsbad Tribal, Cultural and Paleontological
Resources Guidelines
(on file in the Office of the City Clerk)
Aug. 29, 2023 Item #2 Page 21 of 21