HomeMy WebLinkAbout2023-08-29; Municipal Water District; Resolution 1716RESOLUTION 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).
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)
DocuSign Envelope ID: C86161 A2-A31 A-46A6-A 165-1 B0D69AD7B38
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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(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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Attachment A
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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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
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