Attachment A
(Monitoring Services and Disposition Agreement, January 2025) 1 No. 02‐002‐2022‐001
MONITORING SERVICES AND DISPOSITION AGREEMENT
THIS MONITORING SERVICES AND DISPOSITION AGREEMENT (this “Agreement”) by and between the Agua Caliente Band of Cahuilla Indians, a federally recognized Indian tribe, acting by and through the Agua Caliente Office of Historic Preservation (“Tribe”), and the City of Palm Springs, a California charter city and municipal corporation (“Client”) is dated ______________________________ (the “Effective Date”). Tribe and Client are sometimes individually referred to as a “Party” and collectively as the “Parties” in this Agreement.
RECITALS
A. Client desires to upgrade the existing traffic safety equipment which includes removal of existing traffic poles and the construction of new poles and foundations located at the intersection of Tahquitz Canyon Way and Calle Encilia in the City of Palm Springs, California (the “Project”). The site of the Project (the “Project Site”) is more particularly depicted in the attached Exhibit A, which is incorporated herein by this reference.
B. To avoid, minimize, or mitigate any adverse effect that the Project may have on (i) Native American human remains and associated grave goods; (ii) any burial site (as that term is defined in 25 U.S.C. § 3001); (iii) any cultural item (as that term is defined in 25 U.S.C. § 3001); (iv) any archaeological resource (as that term is defined in 16 U.S.C. § 470bb); (v) any Native American historic property (as that term is defined in 54 U.S.C. § 300308); or (vi) any tribal cultural resource (as that term is defined Cal. Pub. Res. Code § 21074) (collectively, clauses (i) through (vi) shall be referred to herein as “Tribal Cultural Resource(s)”), Client desires to retain Tribe to monitor all Ground Disturbing Activity (defined below) at the Project Site. For purposes of this Agreement, the term “Ground Disturbing Activity” means any Project related work, operation, or activity that results in the disturbance of earth, including, but not limited to, uprooting of plants, soil removal, excavation, digging, grading, drilling, bore hole testing, post installation, archaeological studies, or geotechnical studies.
C. Tribe desires to perform and assume responsibility for the provision of the monitoring services specified in Exhibit B (the “Services”), which is attached hereto and incorporated herein by this reference. Tribe represents that it has the qualifications to provide said Services.
D. The Parties acknowledge and agree that they enter into this Agreement (i) recognizing the high level of cultural sensitivity associated with the Project Site due to the possibility that Tribal Cultural Resources may be located at or near the Site; and (ii) the need to more clearly define treatment and disposition procedures in the event Resources are discovered during any Ground Disturbing Activity.
E. The Parties also acknowledge and agree, in accordance with the California Environmental Quality Act (“CEQA”) (California Public Resources Code §§ 21000 et seq.), National Environmental Policy Act of 1969 (“NEPA”) (42 U.S.C. § 4321), and/or Section 106 of the National Historic Preservation Act and its implementing regulations (54 U.S.C. § 306108), that Client enters into this Agreement to complete identified measures to avoid, minimize, or mitigate any adverse effect that the Project may have on Tribal Cultural Resources recorded at or near the Project Site and that such measures may constitute a condition of Project approval. (Monitoring Services and Disposition Agreement, January 2025) 2 TERMS
1. Incorporation of Recitals. All the foregoing recitals are accurate and are incorporated herein by this reference.
2. Services. Tribe shall provide the Services in accordance with this Agreement.
3. Term and Pre‐Term Services.
(a) Term of Agreement. The term of this Agreement shall commence on the Effective Date (the “Commencement Date”) and expire on December 1, 2027, unless earlier terminated as provided herein (the “Term”). The Parties, may, by mutual and written consent, extend the Term if necessary to complete the Services.
(b) Pre‐Term Services. The Parties acknowledge and agree that certain Services may have been provided by Tribe to Client prior to the Commencement Date (the “Pre‐Term Services”). To the extent such Pre-Term Services were rendered at Client’s written request or with Client’s written authorization:
(i) The terms and conditions of this Agreement, including but not limited to confidentiality, indemnification, governing law, and payment obligations, shall apply retroactively to such Pre-Term Services as if they had been provided during the Term of this Agreement. (ii) Client agrees to compensate Tribe for the Pre-Term Services at the rates or fees set forth in this Agreement.
(c) Acknowledgment. By entering into this Agreement, both Parties confirm that any rights, obligations, or claims relating to the Pre-Term Services shall be governed exclusively by this Agreement, superseding any prior arrangements, discussions, or understandings related to such Services.
4. Termination.
(a) Curable Breaches. Either Party (the “Non‐Breaching Party”) may terminate this Agreement immediately upon written notice to the other Party (the “Breaching Party”) if the Breaching Party:
(i) Materially breaches any provision of this Agreement, and such breach remains uncured for a period of thirty (30) days after receiving written notice from the NonBreaching Party specifying the nature of the breach; or (ii) Materially breaches any provision of this Agreement, and the Breaching Party has not commenced to cure such breach within thirty (30) days after receiving written notice from the Non-Breaching Party specifying the nature of the breach where such cure will require a reasonable period beyond thirty (30) days; or (iii) Repeatedly breaches any of its obligations under this Agreement, whether such breaches are cured, such that the cumulative effect of such breaches constitutes a material failure to perform its obligations.
(Monitoring Services and Disposition Agreement, January 2025) 3 (b) Incurable Breaches. The Non-Breaching Party may terminate this Agreement immediately, without providing an opportunity to cure, if the breach is incapable of being remedied or constitutes a violation of applicable law or a fundamental obligation under this Agreement.
(c) Force Majeure Event. If a force majeure event (as defined in Section 11(o) below) continues for a period of ninety (90) days or more and substantially prevents the performance of this Agreement, either Party may terminate this Agreement by providing written notice to the other Party.
(d) Effect of Termination.
(i) Cessation of Services. Upon termination of this Agreement for any reason, all rights and obligations of the Parties under this Agreement shall cease, except as otherwise provided herein. Tribe shall immediately cease providing the Services, and Tribe shall promptly cease using any deliverables, products, or services provided under this Agreement. (ii) Outstanding Payments. Termination of this Agreement shall not relieve Client of its obligation to pay for:
(1) All Services rendered or deliverables provided by Tribe up to the effective date of termination; and
(2) Any non-cancellable commitments, expenses, or fees incurred by Tribe in the performance of its obligations under this Agreement, provided such costs are documented and disclosed to Client and were approved in writing by Client or otherwise reasonably incurred for Services authorized under this Agreement.
(iii) Return of Property. Each Party shall, within thirty (30) days following the effective date of termination:
(1) Return or destroy all confidential information and other property belonging to the other Party, as directed by the disclosing Party; and (2) Confirm in writing the return or destruction of such materials, if requested by the other Party.
(iv) No Waiver of Remedies. Termination of this Agreement shall not limit either Party’s right to pursue any remedies available at law or equity for any breach or default that occurred prior to termination.
(v) Effective Date of Termination. The effective date of termination shall be as specified in the termination notice or as otherwise mutually agreed in writing by the Parties.
(Monitoring Services and Disposition Agreement, January 2025) 4 5. Compensation.
(a) Compensation Amount. Client is hiring Tribe on a “time and materials” basis to perform the Services in accordance with this Agreement. Tribe shall receive compensation, including authorized reimbursements, for Tribe’s provision of the Services at the rates set forth below in accordance with the Monitor Budget Worksheet attached hereto as Exhibit C and incorporated herein by this reference. The total estimated compensation for the Services shall not exceed thirteen thousand three hundred fifty-eight dollars and forty cents ($13,358.40) without Client’s written approval.
Tribal Monitor Hourly Rate
(Includes travel time to and from the Project Site but travel time is not counted toward a standard 40-hour workweek)
$132.00 per hour
Tribal Monitor Overtime Hourly Rate
(For the provision of Services more than a 40-hour workweek) $198.00 per hour
Holiday Hours $198.00 per hour
Tribal Monitor Per Diem U.S. General Services
Administration Rate
Tribal Monitor Mileage
(For vehicle travel to and from the Project Site)
Internal Revenue
Service Mileage Rate
Administrative Fee 15% of Itemized
Statement Amount
(b) Itemized Statement. Tribe will submit to Client an itemized statement, which indicates the Services completed, any amounts owed, and any credits. The statement will describe the Services and supplies provided since the Effective Date, or since the start of the subsequent billing period, as appropriate, through the date of the statement. Client shall pay the undisputed portions of statements within thirty (30) days of receipt and shall promptly consult with Tribe to resolve any portions that may be in dispute. Tribe shall provide reasonable supporting documentation for all reimbursable costs, fees, and expenses upon Client’s request. (c) Late Penalty Fee. Notwithstanding the foregoing, if any portion of any undisputed amount owed is received by Tribe after thirty (30) days of the date of any monthly itemized statement (the “Late Penalty Date”), or if any portion of the amount owed is received by Tribe in funds that are not immediately available, then Client shall owe Tribe a late payment penalty.
The late payment penalty shall be the portion of the amount owed not received by the Late Penalty Date multiplied by a late factor. The late factor shall be the lesser of:
(i) The highest interest rate (in decimal value), which may be levied by law for commercial transactions, compounded daily for the number of days from the Late Penalty Date to and including the date that Client makes the payment to Tribe; or (Monitoring Services and Disposition Agreement, January 2025) 5 (ii) 0.000407 per day, compounded daily for the number of days from the Late Penalty Date to and including the date that Client makes the payment to Tribe. (d) Breaks and Work Stoppages. Client shall afford each Tribal monitor a 30- minute unpaid lunch period. Client shall announce if there are work stoppages at a minimum twelve (12) hours before the scheduled start time. If there are unannounced work stoppages or cancellation of scheduled work (i.e., cancellation of work due to weather conditions) that are not noticed as set forth herein and not due to actions of the Tribal monitors or Tribe, Client shall pay Tribe a minimum half-day charge (four hours) for each Tribal monitor employed on the Project.
6. Method of Payment; Refunds. All sums due hereunder, including payment for the compensation amount, shall be made in lawful money of the United States of America by certified bank check, automated clearing house (ACH), credit card, or wire transfer to such account as Tribe may designate by written notice to Client. Tribe shall refund Client for any unused hours at the Tribal Monitor Hourly Rate set forth herein if the time allocated for the Services during the Ground Disturbing Activity phase of the Project is less than the time stipulated by this Agreement. To receive a refund and prior to any refund request, Client shall submit a “Letter of Completion” in a form reasonably acceptable to Tribe confirming the completion of all new Ground Disturbing Activity.
7. Notification of Ground Disturbing Activities. Prior to the commencement of any Ground Disturbing Activity at the Project Site, Client shall provide Tribe no less than twenty-four (24) hours prior written notice of the commencement of any Ground Disturbing Activity. Such notice shall include (a) the date and time the Ground Disturbing Activity is scheduled to commence; (b) the precise location of the Ground Disturbing Activity, including relevant site plans and maps; (c) a description of the scope and nature of the Ground Disturbing Activity; and any other information reasonably required by Tribe to prepare for the Services contemplated herein. If Client fails to provide the required notice, Tribe may decline to provide the Services for the Ground Disturbing Activity without liability for any resulting delays and/or charge additional fees or costs associated with expedited arrangements, if applicable, provided that such additional fees or costs are reasonable and documented. Client acknowledges that the timely notification of Ground Disturbing Activities is essential to ensure proper monitoring and Client’s compliance with the Project Entitlements (defined below). Both Tribe and Client agree to cooperate in good faith to coordinate the scheduling of Ground Disturbing Activities and the provision of the Services in an efficient and timely manner.
8. Treatment and Disposition of Tribal Cultural Resources. (a) Cessation of Ground Disturbing Activity. If Client or a Tribal monitor discovers what the Tribal monitor reasonably believes may constitute a Tribal Cultural Resource during any Ground Disturbing Activity at the Project Site, Client shall upon direction from the Tribal Monitor temporarily divert, redirect, or halt the Ground Disturbing Activity to allow identification, evaluation, and potential recovery of the Tribal Cultural Resource in accordance with the Project entitlements and applicable state or federal laws (collectively, the “Project Entitlements”). (b) Notice, Coordination with the County Coroner’s Office. In the event Client or a Tribal monitor discovers human remains at the Project Site, Client shall immediately contact the County Coroner, Director of Tribal Historic Preservation, and Tribal General Counsel. To facilitate implementation of this Agreement, Client shall provide the appropriate County Coroner Office a copy of this Agreement before any Ground Disturbing Activity or upon request of Tribe. When Client contacts the County Coroner, Client shall (i) request that the County Coroner determine if the remains (Monitoring Services and Disposition Agreement, January 2025) 6 are those of a Native American; and (ii) request that the County Coroner notify the California Native American Heritage Commission (“NAHC”) by telephone within twenty-four (24) hours upon the County Coroner’s recognition that the human remains are those of a Native American or the County Coroner’s determination that he/she has reason to believe that the human remains are those of a Native American. Client shall compensate the County Coroner for reasonable fees and costs, if applicable and required by the County Coroner Office.
(c) Most Likely Descendant. In the event Native American human remains are discovered at the Project Site, the Parties agree that the NAHC shall determine (in accordance with California Public Resources Code § 5097.98) those persons it believes to be most likely descendant from the deceased Native American (the “MLD”).
(d) Treatment and Disposition of Tribal Cultural Resources in Accordance with California Law (Fee Lands Beyond the Exterior Boundaries of Any Indian Reservation).
Client shall comply with, and the treatment and disposition of Native American human remains and associated grave goods shall be governed by, California Public Resources Code § 5097.98 if Native American human remains and associated grave goods are discovered during any Ground Disturbing Activity at the Project Site and the site of discovery is located on fee lands beyond the exterior boundaries of any Indian reservation that are not controlled, owned, or held in trust by the United States.
(e) Treatment and Disposition of Tribal Cultural Resources in Accordance with Federal Law (Tribal Lands, Federal Lands, Indian Lands, and Public Lands). (i) NAGPRA Compliance. Client shall comply with, and the treatment and disposition of Tribal Cultural Resources shall be governed by, the Native American Graves Protection and Repatriation Act (25 U.S.C. §§ 3001 to 3013) and its implementing regulations (43 CFR 10.1 to
10.12) if Tribal Cultural Resources are discovered during any Ground Disturbing Activity (i) on lands within the exterior boundaries of any Indian reservation; (ii) within any dependent Indian community; or (iii) on lands (other than the lands identified in clauses (i) and (ii) herein) which are controlled or owned by the United States.
(ii) ARPA Compliance. Client shall comply with, and the treatment and disposition of Tribal Cultural Resources shall be governed by, the Archaeological Resources Protection Act (16 U.S.C. §§ 470aa et seq.) and its implementing regulations (43 CFR Part 7) if Tribal Cultural Resources are discovered during any Ground Disturbing Activity (i) on lands of Indian tribes, or Indian individuals, which are either held in trust by the United States or subject to a restriction against alienation imposed by the United States; or (ii) lands which are owned and administered by the United States as part of the national park system, the national wildlife refuge system, or national forest system.
(f) Ownership Relinquishment. Client hereby waives all claims to ownership of Tribal Cultural Resources discovered at the Project Site when Tribe is designated the MLD or where Tribe is traditionally and culturally affiliated with the geographic area of the Project Site. If an examination of Tribal Cultural Resources by an entity other than Tribe as the MLD is necessary, Client shall cause that entity or individual to return said Resources to Tribe within thirty (30) days or any agreed upon time frame from the initial recovery of the Resources. (Monitoring Services and Disposition Agreement, January 2025) 7 (g) Confidentiality.
(i) Confidentiality Requirement. Each Party and its respective officers, agents, employees, and subcontractors, as a receiving Party, shall not: (1) either during the term of this Agreement or thereafter, for a period of two years, disclose any proprietary or confidential information of the disclosing Party; and (2) either during the term of this Agreement or any time thereafter, disclose: (a) any information related to the site of any reburial of any Tribal Cultural Resource; (b) any information related to consultation between the Parties with respect to any Tribal Cultural Resource discovered at the Project Site; or (c) any information related to the treatment and disposition of any Tribal Cultural Resource discovered at the Project Site (collectively, clauses (1) and (2) are hereinafter referred to as the “Confidential Information”). Both Parties acknowledge and agree that this Agreement may contain Confidential Information that is subject to the prohibitions and requirements of this Section.
(ii) Confidentiality Exceptions. The receiving Party, without obtaining the written consent of the disclosing Party, shall not disclose any Confidential Information to any third party, except for the information that: (1) is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure under this Agreement); (2) is under an obligation to be disclosed pursuant to applicable laws or regulations, including the California Public Records Act, the rules of any stock exchange, or orders of a court of competent jurisdiction, or other government authorities; or (3) is required to be disclosed by any Party to its affiliates, and its and their respective shareholders, investors, legal counsels, directors, officers, employees, managers, advisors, consultants, agents, contractors, subcontractors and actual or potential financing parties (and their respective agents, consultants, and advisors) (collectively, “Representatives”) regarding the matters contemplated hereunder, provided that any such Representatives shall be otherwise bound by the confidentiality obligations set forth herein with respect to the Confidential Information. Any unauthorized disclosure of any Confidential Information by any Representatives of any Party shall be deemed disclosure of such Confidential Information by such Party, which Party shall be held liable for breach of this Agreement.
(iii) Disclosure of Agreement. Both Parties may disclose a copy of this Agreement to the county of Riverside (including the County Coroner Office), Bureau of Land Management, or any other third party to comply with applicable federal, state, or local law (“Agreement Recipient”) provided that all Confidential Information has been redacted. Before the provision of this Agreement to any Agreement Recipient, the disclosing Party shall redact portions of this Agreement that contain Confidential Information. Both Parties shall notify the other Party at least one (1) week in advance of its intention to provide this Agreement to any Agreement Recipient, and the non-disclosing Party shall have the opportunity to review and approve any proposed redactions to this Agreement prior to the disclosing Party’s provision to any Agreement Recipient, to the extent legally permissible and practicable under applicable law, including the California Public Records Act. Nothing in this Agreement shall require Client to withhold, delay, or deny disclosure of any public record where disclosure is required by law.
9. Mutual Indemnification.
(a) Indemnity, Defense, and Hold Harmless Obligation. To the fullest extent permitted by law, each Party (the “Indemnifying Party”) shall (i) immediately defend; (ii) indemnify; and (iii) hold harmless the other Party and its officers, directors, employees, and agents (the “Indemnified Party”) from and against all Liabilities (defined below) to the extent arising out of or resulting from or in connection with the Indemnifying Party’s performance of this Agreement (Monitoring Services and Disposition Agreement, January 2025) 8 or the Indemnifying Party’s failure to comply with any of its obligations contained in this Agreement.
Liabilities subject to the duties to defend and indemnify include, without limitation, all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution (individually, a “Liability” and collectively, the “Liabilities”). When Client is the Indemnifying Party, Client shall not have the authority under any circumstances to waive, modify, or compromise any defense, immunity (including the sovereign immunity of Tribe), limitation or liability, or statutory or common law protection available to Tribe. When Tribe is the Indemnifying Party, Tribe shall not have the authority under any circumstances to waive, modify, or compromise any defense, immunity, limitation or liability, or statutory protection available to Client. (b) Conditions of Indemnification. The Indemnified Party seeking indemnification under this Section shall:
(i) promptly notify the Indemnifying Party in writing of any Liability for which indemnification is sought, provided, however, failure to provide timely notice shall not relieve the Indemnifying Party of its obligations under this Section except to the extent the delay materially prejudices the Indemnifying Party’s ability to defend the Liability; (ii) permit the Indemnifying Party to assume control of the defense and settlement of the Liability, provided, however, the Indemnifying Party shall not settle any Liability without the Indemnified Party’s prior written consent if the settlement involves an admission of fault, imposes non-monetary obligations, or does not include a full release of the Indemnified Party; and (iii) reasonably cooperate with the Indemnifying Party in the defense of the Liability, at the Indemnifying Party’s expense.
(c) Limitations. The indemnification obligations set forth in this Section shall not apply to the extent that the Liabilities that result from the Indemnified Party’s own negligence, willful misconduct, or breach of this Agreement.
10. Damages. Notwithstanding any provision in this Agreement to the contrary, neither Party shall be liable to the other, in any event, for any special, consequential, or incidental damages arising out of the Services, whether arising in contract, tort, state, federal, or Tribal laws or otherwise.
11. Miscellaneous Terms.
(a) Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective Parties at the following addresses, or at such other address as the respective Parties may provide in writing for this purpose:
Tribe:
Agua Caliente Band of Cahuilla Indians
5401 Dinah Shore Drive
Palm Springs, California 92264
Attn: Lacy Padilla
[email protected]
With a copy to:
Agua Caliente Band of Cahuilla Indians
(Monitoring Services and Disposition Agreement, January 2025) 9 5401 Dinah Shore Drive
Palm Springs, California 92264
Attn: General Counsel
[email protected]
Client:
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, California 92264
Attn: Anthony Acosta
[email protected]
Such notice shall be deemed made when personally delivered or when mailed, fortyeight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
(b) Governing Law. This Agreement shall in all respects be interpreted, enforced, and governed by the following applicable laws, which are stated in their order of priority in the event of a conflict between them: the laws of the United States and the laws of the State of California. This Agreement shall not be construed either for or against Tribe or Client, but this Agreement shall be interpreted in accordance with the general tenor of the language to reach an equitable result.
(c) Attorney’s Fees and Costs. If any Party to this Agreement initiates a proceeding to enforce its rights hereunder or to interpret of apply this Agreement, the prevailing Party shall be entitled to recover all its costs and expenses, including, without limitation, legal interest thereon and all its reasonable attorney’s fees and arbitration fees incurred in connection with such action.
(d) Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.
(e) Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period of performance shall be deemed calendar days and not business days unless otherwise specified. All references to Tribe include all officials, officers, employees, personnel, agents, volunteers, contractors, and subcontractors of Tribe, except as otherwise specified in this Agreement. All references to Client include all officials, officers, employees, personnel, agents, volunteers, contractors, and subcontractors of Client, unless otherwise specified in this Agreement. The captions of the various paragraphs and sections are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
(f) Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party and any attempt to do so shall be null and void. (g) Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. (Monitoring Services and Disposition Agreement, January 2025) 10 (h) Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
(i) No Third‐Party Beneficiaries. This Agreement and the performance of the obligations hereunder are for the sole and exclusive benefit of Tribe and Client. No person or entity who or which is not a signatory to this Agreement shall be deemed to be benefited or intended to be benefited by any provision hereof, and no such person or entity shall acquire any rights or causes of action against either Tribe or Client hereunder because of the Parties performance or nonperformance of their respective obligations under this Agreement. (j) Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable, the remaining provisions shall continue in full force and effect. (k) Cooperation; Further Acts. The Parties shall fully cooperate with one another and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement. (l) Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
(m) Cumulative Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default of any other default by the other Party.
(n) Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
(o) Force Majeure. Neither Client nor Tribe shall be liable for failing to fulfill any obligation under this Agreement if such failure is directly caused by an event beyond such Party’s reasonable control and which is not caused by such Party’s fault or negligence. Such events shall be limited to acts of God; acts of civil or military authority; war; acts of terrorism; riots, civil unrest, or insurrection; sabotage; local, state, Tribal, or national emergencies or disasters; loss or malfunction of utility, computer (hardware or software), or communication service; any lack or failure of transportation facilities; any lack or failure of supply of raw materials; any strike or labor disturbance; epidemics; and pandemics. Such excuse from liability shall be effective only to the extent and duration of the event(s) causing the failure or delay in performance and provided that the Party has not caused such event(s) to occur. The affected Party shall promptly notify the other party in writing of the occurrence of the force majeure event, providing details of the event, its expected duration, and the impact on the affected Party's performance of its obligations under this Agreement.
If a force majeure event temporarily prevents a Party from performing its obligations, such performance shall be suspended for the duration of the force majeure event. The affected Party shall make reasonable efforts to mitigate the effects of the force majeure event and resume performance as soon as practicable. The Parties agree to cooperate in good faith to minimize the disruption caused by the force majeure event, including exploring alternative means of fulfilling the obligations under (Monitoring Services and Disposition Agreement, January 2025) 11 this Agreement where feasible. For purposes of this Agreement, the term “acts of God” shall mean cataclysmic events which are caused solely by the effects of nature or natural causes, without interference by any person, consisting of insect infestations, floods, earthquakes, tornados, hurricanes, fires, lightening, and extraordinary amounts of rain. The term “acts of God” shall not include rain, wind, floods, or other natural phenomenon of normal intensity for the locality. (p) Non‐Precedential. The terms and conditions set forth in this Agreement apply for its Term only and are non-precedential and non-prejudicial and shall not be construed, deemed, or serve as an admission by either Party with respect to any matter whatsoever or as a precedent in any manner or be deemed acceptable, in whole or in part, in any other agreements, negotiations, or understandings, entered into by the Parties. (q) Survival. The expiration or earlier termination of this Agreement shall not affect any provisions that are expressly or by their nature intended to survive termination, including but not limited to:
(i) Confidentiality obligations;
(ii) Indemnification;
(iii) Governing law; and
(iv) Any accrued payment obligations.
(r) No Waiver of Sovereign Immunity. This Agreement is not intended, and shall not be construed, to limit or waive the sovereign or governmental immunity from suit enjoyed by either Party.
(s) Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements.
[SIGNATURES ON THE FOLLOWING PAGE]
(Monitoring Services and Disposition Agreement, January 2025) 12 IN WITNESS WHEREOF, the Parties have entered this Agreement as of the date first written above.
AGUA CALIENTE BAND OF CAHUILLA
INDIANS
CLIENT
By: _________________________________________________
Lacy Padilla, Director of Historic
Preservation
By: _________________________________________________
Its: _________________________________________________
(Monitoring Services and Disposition Agreement, January 2025) 13 EXHIBIT A
(Monitoring Services and Disposition Agreement, January 2025) 14 EXHIBIT B
SCOPE OF SERVICES
Project Overview. The Tribal Cultural Monitor (“Monitor(s)”) will provide oversight and ensure the protection of Tribal Cultural Resources during Ground Disturbing Activities at the Project construction site. This Scope of Services outlines the roles, responsibilities, and expectations of the Monitor(s) to facilitate compliance with cultural resource protection laws and tribal consultation requirements.
1. Objectives.
1.1 To identify and protect any Tribal Cultural Resources encountered during Ground Disturbing Activities.
1.2 To provide real-time recommendations to the construction team regarding the treatment of discovered Tribal Cultural Resources.
1.3 To ensure compliance with applicable federal, state, and local laws, including the National Historic Preservation Act (NHPA), Native American Graves Protection and Repatriation Act (NAGPRA), and any relevant laws of the Agua Caliente Band of Cahuilla Indians.
2. Responsibilities of the Tribal Cultural Monitor(s).
2.1 Pre‐Construction Activities:
.1 Attend pre-construction meetings to review Project plans, anticipated construction timelines, and areas of cultural sensitivity. .2 Conduct a review of prior cultural resource assessments or environmental documents, as provided.
.3 Collaborate with the Project archaeologist (if applicable) to identify areas with higher potential for Tribal Cultural Resource discoveries.
2.2 Monitoring During Construction:
.1 Be present on-site during all Ground Disturbing Activities, including but not limited to grading, excavation, and trenching.
.2 Observe construction activities to identify potential Tribal Cultural Resources, such as artifacts, features, or human remains. .3 Maintain daily logs detailing observed activities, any discoveries, and actions taken.
2.3 Discovery Protocols:
.1 Immediately notify the construction supervisor and Project archaeologist upon discovery of Tribal Cultural Resources.
.2 Collaborate with the Project archaeologist and relevant tribal representatives to assess the discovery and recommend appropriate mitigation measures. .3 Ensure compliance with stop-work protocols in the event of a significant discovery or potential violation of Tribal Cultural Resource protections. (Monitoring Services and Disposition Agreement, January 2025) 15 2.4 Communication and Reporting:
.1 Serve as the primary point of contact for the Agua Caliente Band of Cahuilla Indians regarding cultural monitoring efforts on-site.
.2 Provide weekly or as-needed updates to the Tribal Historic Preservation Officer and Project manager regarding monitoring activities. .3 Submit a final report summarizing monitoring activities, findings, and any mitigation efforts implemented.
3. Coordination and Compliance.
3.1 Work collaboratively with construction teams, project archaeologists, environmental consultants, and tribal representatives.
3.2 Ensure adherence to applicable cultural resource management plans and mitigation measures specified in the project’s environmental documents.
3.3 Maintain confidentiality of sensitive cultural information, as required by this Agreement and applicable federal, state, or ACBCI laws.
4. Required Qualifications.
4.1 Demonstrated knowledge of the tribal history, culture, and traditions specific to the Project area.
4.2 Experience in archaeological monitoring or cultural resource management.
4.3 Familiarity with relevant federal, state, tribal, and local cultural resource laws and guidelines.
4.4 Ability to communicate effectively with tribal representatives, construction crews, and other stakeholders.
5. Health and Safety Requirements.
5.1 Follow all site-specific health and safety protocols, including personal protective equipment (PPE) requirements.
5.2 Participate in site safety orientations, as necessary.
6. Deliverables.
6.1 Daily monitoring logs and records.
6.2 Immediate notification of discoveries and detailed incident reports.
6.3 Final summary report documenting all activities, findings, and recommendations.
7. Number of Monitors, Duration, and Availability.
7.1 The Project requires the provision of one (1) Monitor(s). If an increase in Ground Disturbing Activities necessitates additional Monitor(s), Client agrees to directly compensate Tribe for the provision of additional Monitor(s) to carry out the Services set forth herein, at the rates set forth herein.
7.2 The Monitor(s) shall be available throughout the duration of Ground Disturbing Activities. The schedule will align with the construction team’s timeline and may require flexibility for extended hours or weekend work. (Monitoring Services and Disposition Agreement, January 2025) 16 EXHIBIT C
MONITOR BUDGET WORKSHEET
Agua Caliente Band Of Cahuilla Indians
Historic Preservation Office-Monitoring Program
Date: July 24, 2026 Project Start Date: November 16, 2026
Project Name: HSIP Cycle 9 Traffic Signal Improvements
Project Address: Tahquitz Canyon Way & Calle Encilia
Intersection, Palm Springs, CA 92262
Contact name: Joel Montalvo Contract No. 02‐002‐2022‐001 Palm Springs City Engineer
Billing Address 3200 Tahquitz Canyon Way
Palm Springs, CA 92262
Email: [email protected]
Phone Nos.: (760) 323-8253
The worksheet below is to estimate costs for Agua Caliente's total number of work days estimated for the Project. An invoice will be sent on a biweekly basis from the Controller's Office and will include a 15% Administrative Fee. An overtime rate of $198.00 per hour will be applied to any time worked over 40 hours.
The Client shall pay the Tribe a minimum half-day (four hours) for last minute cancellations.
Total #
of Days*
Total
1 Trenching
1 Monitor (s) for 11 days 11
11 Days @ 8 hr days 88 hours
88 Hours @ $132.00/hr 11,616.00
2 Administrative Fee 15 % 1,742.40
Subtotal 11 13,358.40
TOTAL $13,358.40
_____Initial Initial______