Loading...
HomeMy WebLinkAboutA9055 - AGUA CALIENTE BAND OF CAHUILLA INDIANS - Encroachment AgreementI RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Agua Caliente Band of Cahuilla Indians 5401 Dinah Shore Drive Palm Springs, California 92264 Attention: Margaret Park APNs: 513-250-009, -010, -022 2022-0118106 03/10/2022 11:08 AM Fee: $ 20.00 Page 1 of 9 Recorded in official Records County of Riverside Peter Aldana Assessor-CountyCllerk-Recorrder r t',y�71L�?fF�i *�l�i�a5 SPACE ABOVE THIS LINE FOR RECORDER'S USE Termination and Release of Encroachment Agreement THIS TERMINATION AND RELEASE OF ENCROACHMENT AGREEMENT (this "Agreement") is made and entered into on January 1, 2022 (the "Effective Date") by and between the Agua Caliente Band of Cahuilla Indians, a federally recognized Indian tribe ("Tribe"), and the City of Palm Springs, a California charter city Tribe and City are sometimes individually referred to as a "Party" and collectively as the "Parties" in this Agreement. RECITALS A. Tribe and City entered into that certain Encroachment Agreement dated March 12, 2001 and recorded on April 19, 2001 as Document No. 2001-165697 in the Official Records of Riverside County, California (the "Encroachment Ag_reement"). B. Tribe and City desire to terminate the Encroachment Agreement as of the Effective Date and release each other from any past, present, or future obligations as more fully set forth herein. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Termination of Encroachment Agreement City and Tribe do hereby mutually agree to terminate the Encroachment Agreement as of the Effective Date. The Parties agree that the provisions of the Encroachment Agreement and any and all agreements, instruments, certificates, or other documents entered into at any time between City and Tribe concerning the Encroachment Agreement, except this Agreement and the encroachment permit issued related to the Encroachment Agreement, are hereby deemed rescinded, terminated, and voided ab initio and shall be of no force and effect such that City and Tribe shall not have any obligation to perform any act for the benefit of the other pursuant to the foregoing. 1 55575.18120\34607961.3 2. Mutual Releases. a. In consideration of the covenants, agreements, and undertakings of the Parties under this Agreement, each Party, on behalf of itself and its respective present and former officers, employees, agents, attorneys, and advisors (collectively, "Releasors") hereby releases, waives, and forever discharges the other Party and its respective present and former, direct and indirect, officers, employees, agents, attorneys, and advisors (collectively, "Releasees") of and from any and all actions, causes of action, suits, losses, liabilities, rights, debts, dues, sums of money, accounts, reckonings, obligations, costs, expenses, liens, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands, of every kind and nature whatsoever, whether now known or unknown, foreseen or unforeseen, matured or unmatured, suspected or unsuspected, in law, admiralty, or equity (collectively, "Claims"), which any of such Releasors ever had, now have, or hereafter can, shall, or may have against any of such Releasees for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of time through the Effective Date arising out of or relating to the Encroachment Agreement, except for Claims relating to rights and obligations preserved by, created by, or otherwise arising out of this Agreement. b. Each Releasor understands that it may later discover Claims or facts that may be different from, or in addition to, those that it or any other Releasor now knows or believes to exist regarding the subject matter of the release contained in this Section 2, and which, if known at the time of signing this Agreement, may have materially affected this Agreement and such Party's decision to enter into it and grant the release contained in this Section 2. Nevertheless, the Releasors intend to fully, finally, and forever settle and release all Claims that now exist, may exist, or previously existed, as set out in the release contained in this Section 2, whether known or unknown, foreseen or unforeseen, or suspected or unsuspected, and the release given herein is and will remain in effect as a complete release, notwithstanding the discovery or existence of such additional or different facts. The Releasors hereby waive any right or Claim that might arise as a result of such different or additional Claims or facts. The Releasors have been made aware of, and understand, the provisions of California Civil Code Section 1542 ("Section 1542"), which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." The Releasors expressly, knowingly, and intentionally waive any and all rights, benefits, and protections of Section 1542 and of any other state or federal statute or common law principle limiting the scope of a general release. 3. Dispute Resolution. a. Preliminary Negotiation. City and Tribe shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation. b. Arbitration. Any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or 2 55575.18120k34607961.3 validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, that cannot be resolved through preliminary negotiation shall be determined by binding arbitration in Riverside County, California before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the JAMS' Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This provision shall not preclude the Parties from enforcing the award with a court of appropriate jurisdiction or seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction in accordance with Section 5 below. 4. 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 or relating to this Agreement, whether arising in contract, tort, state, federal, or Tribal laws or otherwise. S. Limited Waiver of Sovereign Immunity. By this provision, Tribe does not waive, limit, or modify its sovereign immunity against contested suits except as specifically provided herein. Tribe hereby agrees to waive its sovereign immunity solely for the limited purpose of authorizing only City (a) to initiate an arbitration seeking to enforce all rights granted to City under this Agreement; (b) to seek provisional remedies in aid of arbitration; or (c) to enforce an arbitration award. In the event the Parties to this Agreement have a need to seek provisional remedies in aid of arbitration or to enforce an arbitration award and are unable to do so without litigation, the only jurisdiction and venue for such litigation shall be either the United States District Court, Central District of California, Eastern Branch or the Superior Court of the State of California, County of Riverside. 6. Representations and Warranties. Each Party hereby represents and warrants to the other Party that: a. It has the full right, power, and authority to enter into this Agreement, to grant the release contained herein and to perform the obligations hereunder. b. The execution of this Agreement by the individual whose signature is set out at the end of this Agreement on behalf of such Party, and the delivery of this Agreement by such Party, have been duly authorized by all necessary action on the part of such Party. C. This Agreement has been executed and delivered by such Party and (assuming due authorization, execution, and delivery by the other Party hereto) constitutes the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms. d. It (i) knows of no Claims against the other Party relating to or arising out of this Agreement that are not covered by the release contained in Section 2 and (ii) has neither assigned nor transferred any of the Claims released herein to any person or entity and no person or entity has subrogated to or has any interest or rights in any Claim. 3 55575.18120\34607961.3 EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 6 OF THIS AGREEMENT, (A) NEITHER PARTY HERETO NOR ANY PERSON ON SUCH PARTY'S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY HERETO ACKNOWLEDGES THAT, IN ENTERING INTO THIS AGREEMENT, IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH OTHER PARTY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6. 7. Indemnification. a. Each Party (as "Indemnifying Pa ) shall defend, indemnify, and hold harmless the other Party, and its officers, directors, managers, employees, and agents (collectively, "Indemnified PaM"), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by an Indemnified Party (collectively, "Losses"), arising out of or resulting from any claim of a third party alleging: (i) breach by Indemnifying Party or its officers, directors, managers, employees, or agents of any representation, warranty, covenant, or other obligation set out in this Agreement; or (ii) negligence or more culpable act or omission of an Indemnifying Party or its officers, directors, managers, employees, or agents (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement. b. Notwithstanding anything to the contrary in this Agreement, the Indemnifying Party is not obligated to indemnify, defend, or hold harmless the Indemnified Party against any Losses arising out of or resulting, in whole or in part, from the Indemnified Party's: (i) willful, reckless, or negligent acts or omissions; or (ii) bad faith failure to comply with any of its obligations set out in this Agreement. C. An Indemnified Party seeking indemnification under this Section 7 shall give the Indemnifying Party: (i) prompt Notice (as defined below) of the relevant claim; provided, however, that failure to provide such Notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (ii) reasonable cooperation, at the Indemnifying Party's expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party's rights or interests. The Indemnified Party shall have the right to participate in the defense at its own expense. 4 55575.18120\34607961.3 d. THIS SECTION 7 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY. 8. Assignment of Agreement Neither this Agreement nor any of the rights, interests, or obligations hereunder shall be assigned by any of the Parties hereto (whether by operation of law or otherwise) without the prior written consent of the other Party. Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors and assigns. 9. Miscellaneous Provisions. a. Delivery of Notices. All notices, requests, consents, demands, waivers, summons, or other legal process, or similar types of communications permitted or required under this Agreement (each, a "Notice') 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: City: City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: Justin Clifton City Manager Tribe: Agua Caliente Band of Cahuilla Indians 5401 Dinah Shore Drive Palm Springs, California 92264 Attn: Margaret Park, AICP, MBA Chief Planning Officer All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective only (i) on receipt by the receiving Party and (ii) if the Party giving the Notice has complied with the requirements of this Section 8(a). b. Governing Law. This Agreement shall in all respects be interpreted, enforced, and governed by the laws of the State of California. This Agreement shall not be construed either for or against City or Tribe, but this Agreement shall be interpreted in accordance with the general tenor of the language in an effort to reach an equitable result. C. Attorneys 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 of its costs and expenses, including, without limitation, legal interest thereon and all of its reasonable attorney's fees and arbitration fees incurred in connection with such action. 55575.18120k34607961.3 d. 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 City include all officials, officers, employees, personnel, agents, volunteers, contractors, and subcontractors of City, 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. e. Amendment: Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. f. Invalidity: Severabilitv. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable, the remaining provisions shall continue in full force and effect. g. 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. h. Counterparts. This Agreement may be signed by counterparts, each of which shall constitute an original. i. 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] 6 55575.18120\34607%1.3 IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the Effective Date. CITY OF PALM SPRINGS, a California charter city ur Its: A1055 APPROVED AS TO FORM By: C 1-a!�Z /7 —— JoKey Balli r, City Attorney a AGUA CALIENTE BAND OF CAHUILLA INDIANS, a federally recognized Indian tribe By: - Margaret Park, AICP, MBA Chief Planning Officer APPROVED AS TO FORM 55575.18120 V 4607% 1.3 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document, State of California ) County of RWt 0& ) On 01IZ+IZ071 , before me AAlrAb( Cl+la*Ibl-q?STC7 a notary public, personally appeared MA2b III PAQIL- Ra&i1 ZorJ who proved to me on the basis of satisfactory evidence to be the personJgwhose names) is/,wcr-subscribed to the within instrument, and acknowledged to me that kre'/she/;bey executed the same in his/her/.their authorized capacity, 4es), and that by bis/her/,Their signaturejs) on the instrument the personj4, or the entity upon behalf of which the personjs) acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. MINDY CHIANG-EPSTEIN Notary Public -California Riverside County Commission x 2232944 ` My Comm. Expires Mar 30, 2022 ota Public (SEAL) 1 55575.18120 V 4607961.3 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document State of California County of RXV&1:1 At On f6MAIM A before me MOIMOVt M. [OWU . a notary public, personally appeared J Uslift CUtTyn . who proved to me on the basis of satisfactory evidence to be the personNkwhose name(Q&are subscribed to the within instrument, and acknowledged to me that V/she/they executed the same in Q3 /her/their authorized capacity(tec)`and that by 4u7?/'Iwr/their signatureTg on the instrument the personTsl or the entity upon behalf of which the person(Q acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. tl /sattl MONIQUf M. LOMELI SEAL ' /• Notary ty 55575.18120\34607961.3 2 WITNESS my hand and official seal. No ry Public ,.c++� •• Public •California Riverside Coun Amended and Restated Encroachment Agreement THIS AMENDED AND RESTATED ENCROACHMENT AGREEMENT (this "Restated Agreement") is made and entered into as of January 1, 2022 (the "Effective Date") by and between the Agua Caliente Band of Cahuilla Indians, a federally recognized Indian tribe ("Tribe"), and the City of Palm Springs, a California charter city ("C"). Tribe and City are sometimes individually referred to as a "party" and collectively as the "Parties" in this Restated Agreement. RECITALS A. Tribe is currently the owner of that certain real property located in the City of Palm Springs, California, County of Riverside, State of California commonly known as 500 West Mesquite Avenue, Palm Springs, California 92664, (APNs 513-250-023 (portion), -040, -041 and -042, and a portion of Mesquite Avenue), more particularly depicted on Exhibit A attached hereto and incorporated herein by this reference ("Tribe ProvEm"). City is the owner of an easement interest in the Tribe Property pursuant to those certain Grants of Right -of -Way recorded on April 30, 1982 as Document No. 74471 and November 27, 2000 as Document No. 2000-469126 in the Official Records of Riverside County, California as more particularly depicted on Exhibit A ("City PropejU"). B. Tribe and City entered into that certain Encroachment Agreement dated March 12, 2001 and recorded on April 19, 2001 as Document No. 2001-165697 in the Official Records of Riverside County, California (the "Original Agreement") where, among other things, City granted Tribe a revocable and relocatable license to construct and/or maintain an encroachment in the form of a vehicular gate with type "N" reflector mounted on the Mesquite Avenue side of the gate on the City Property, which said encroachment is more particularly depicted on Exhibit A (the "Encroachment"). City's issuance of an encroachment permit (the "Permit") for the Encroachment in accordance with Chapter 14.16 of the Palm Springs Municipal Code was conditioned upon Tribe executing the Original Agreement. C. Tribe recently submitted a fee -to -trust application in accordance with the Indian Reorganization Act (25 U.S.C. § 5108), the Indian Land Consolidation Act (25 U.S.C. § 2202), and 25 CFR Part 151 requesting that the Secretary of the Interior or his or her designee (the "Secretary") acquire in the name of the United States and hold in trust for the exclusive benefit of Tribe the Tribe Property. D. The Secretary has indicated that before the United States can acquire the Tribe Property in trust for the exclusive benefit of Tribe, Tribe and City will either have to terminate the Original Agreement or remove from the Original Agreement the requirement that Tribe maintain, repair, and replace the Encroachment and the requirement that Tribe indemnify, defend, and hold harmless City, its officers, agents, and employees. E. To satisfy the Secretary's request, City and Tribe have agreed that it is in the best interests of both Parties for City to terminate the Original Agreement and release the 1 55575.18120\34607961.3 Tribe Property, Tribe, and its officers, agents, and employees from the obligations thereunder to effectuate conveyance of the Tribe Property to the United States. F. City and Tribe desire to enter into this Restated Agreement to reestablish Tribe's obligation to maintain, repair, and replace the Encroachment and to indemnify, defend, and hold harmless City, its officers, agents, and employees. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Term. The term of this Restated Agreement shall commence on the Effective Date and shall expire on December 31, 2121, unless earlier terminated as provided herein (the "Term"). The Parties may, by mutual and written consent, extend the Term prior to expiration of this Restated Agreement. 2. Termination of Original Agreement. Within thirty (30) days of the Parties' execution of this Restated Agreement, City and Tribe shall execute, and City shall record, a Termination and Release of Encroachment Agreement, the form of which is attached hereto as Exhibit B and incorporated herein by this reference. 3. License. During the Term, City hereby grants to Tribe a license revocable and relocatable with or without cause at any time by City to maintain, repair, and replace the Encroachment upon all of the terms and conditions of the Permit and this Restated Agreement (the "License"). 4. Nature of Restated Agreement. The Parties acknowledge and agree that the provisions contained in this Restated Agreement do not constitute covenants running with the land. All rights and obligations of the Parties shall be for the sole benefit of the Parties and shall not constitute an encumbrance on the Tribe Property or be construed as inuring to and binding upon any third party unless said rights and obligations are assigned and assumed pursuant to Section 7 below. S. Maintenance. Tribe hereby agrees to maintain, repair, and replace the Encroachment in accordance with Chapter 14.16 of the Palm Springs Municipal Code, as amended, renumbered, or restated from time to time. Tribe shall maintain, repair, and replace the Encroachment and the City Property so as to keep the Encroachment and such area in a neat, clean, first class condition, and in good order and repair, free of weeds, trash, and debris at all times. In the event Tribe does not maintain the Encroachment and the City Property as required herein, City may terminate this Restated Agreement and the License as more particularly provided in Section 9 below. 6. Indemnity. Tribe hereby agrees to indemnify and defend City, its officers, agents, and employees against and to hold and save each of them harmless from, any and all actions, suits, claims, damages, to persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities (collectively, "claims" or "liabilities") that may be asserted or claimed by any person, firm, or entity arising out of or in connection with the location, 2 55575.18120\34607961.3 construction, maintenance, relocation, or removal of the Encroachment, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of City, its officers, agents, or employees, who are directly responsible to City, and in connection therewith: (a) Tribe will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs in connection therewith; (b) Tribe will promptly pay any judgment rendered against City, its officers, agents, or employees for any such claims or liabilities and Tribe agrees to save and hold City, its officers, agents, and employees harmless therefrom; (c) in the event City, its officers, agents, or employees is made a party to any action or proceeding filed or prosecuted against Tribe for such damages or other claims arising out of the location, construction, maintenance, relocation, or removal of the Encroachment, Tribe agrees to pay City, its officers, agents, and employees, any and all costs and expenses incurred by City, its officers, agents, and employees in such action or proceeding, including, but not limited to, legal costs and attorneys' fees. 7. Assignment of Restated Agreement. Neither this Restated Agreement nor any of the rights, interests, or obligations hereunder shall be assigned by any of the Parties hereto (whether by operation of law or otherwise) without the prior written consent of the other Party. Subject to the preceding sentence, this Restated Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors and assigns. 8. Notification to Third Party Transferee. In the event the United States conveys the Tribe Property to a third party at any point after it acquires the Property in trust for the exclusive benefit of Tribe, Tribe shall provide written notice to said third party of this Restated Agreement prior to the effective date of the conveyance. Tribe shall require as a condition of the conveyance that the third party assume the obligations of this Restated Agreement or remove the Encroachment at the third parry's sole cost and expense. 9. Termination of Restated Agreement. City may, with or without cause, terminate this Restated Agreement (and the License granted hereunder) at any time. If City terminates this Restated Agreement without cause, City shall remove the Encroachment and restore the City Property to its former condition, at its sole cost and expense, within thirty (30) days of written notice to Tribe. If City terminates this Restated Agreement (and the License granted hereunder) for cause, including but not limited to Tribe's failure to maintain, repair, and replace the Encroachment and the City Property pursuant to Section 5 above, Tribe shall remove the Encroachment and restore the City Property to its former condition, at its sole cost and expense, within thirty (30) days of written notice to Tribe. 10. Dispute Resolution. a. Preliminary Negotiation. City and Tribe shall attempt in good faith to resolve any dispute arising out of or relating to this Restated Agreement promptly by negotiation. b. Arbitration. Any dispute, claim, or controversy arising out of or relating to this Restated Agreement or the breach, termination, enforcement, interpretation, 3 55575.18120\34607961.3 or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, that cannot be resolved through preliminary negotiation shall be determined by binding arbitration in Riverside County, California before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the JAMS' Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This provision shall not preclude the Parties from enforcing the award with a court of appropriate jurisdiction or seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction in accordance with Section 12 below. 11. Damages. Notwithstanding any provision in this Restated 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 or relating to this Restated Agreement, whether arising in contract, tort, state, federal, or Tribal laws or otherwise. 12. Limited Waiver of Sovereign Immunity. By this provision, Tribe does not waive, limit, or modify its sovereign immunity against contested suits except as specifically provided herein. Tribe hereby agrees to waive its sovereign immunity solely for the limited purpose of authorizing only City (a) to initiate an arbitration seeking to enforce all rights granted to City under this Restated Agreement; (b) to seek provisional remedies in aid of arbitration; or (c) to enforce an arbitration award. In the event the Parties to this Restated Agreement have a need to seek provisional remedies in aid of arbitration or to enforce an arbitration award and are unable to do so without litigation, the only jurisdiction and venue for such litigation shall be either the United States District Court, Central District of California, Eastern Branch or the Superior Court of the State of California, County of Riverside. 13. Miscellaneous Provisions. a. Delivery of Notices. All notices, requests, consents, demands, waivers, summons, or other legal process, or similar types of communications permitted or required under this Restated Agreement (each, a "Notice") 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: City: City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: Justin Clifton City Manager With Copy To: Jeffrey S. Ballinger, Esq., City Attorney Best Best & Krieger LLP 655 W. Broadway,15th Floor San Diego, CA 92101 4 55575.18120\34607961.3 Tribe: Agua Caliente Band of Cahuilla Indians 5401 Dinah Shore Drive Palm Springs, California 92264 Attn: Margaret Park, AICP, MBA Chief Planning Officer All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective only (i) on receipt by the receiving Party and (ii) if the Party giving the Notice has complied with the requirements of this Section 13(a). b. Governing Law. This Restated Agreement shall in all respects be interpreted, enforced, and governed by the laws of the State of California. This Restated Agreement shall not be construed either for or against City or Tribe, but this Restated Agreement shall be interpreted in accordance with the general tenor of the language in an effort to reach an equitable result. C. Attorneyy's Fees and Costs. If any Party to this Restated Agreement initiates a proceeding to enforce its rights hereunder or to interpret of apply this Restated Agreement, the prevailing Party shall be entitled to recover all of its costs and expenses, including, without limitation, legal interest thereon and all of its reasonable attorney's fees and arbitration fees incurred in connection with such action. d. Time of Essence. Time is of the essence for each and every provision of this Restated Agreement. e. Construction: References: Captions. Since the Parties or their agents have participated fully in the preparation of this Restated Agreement, the language of this Restated 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 Restated Agreement. All references to City include all officials, officers, employees, personnel, agents, volunteers, contractors, and subcontractors of City, unless otherwise specified in this Restated 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 Restated Agreement. f. Amendment: Modification. No supplement, modification, or amendment of this Restated Agreement shall be binding unless executed in writing and signed by both Parties. 5 55575.18120\34607961.3 g. 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. h. No Third -Party Beneficiaries. No person or entity who or which is not a signatory to this Restated 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 City or Tribe hereunder as a result of the Parties performance or nonperformance of their respective obligations under this Restated Agreement. i. Invalidity: Severability. If any portion of this Restated Agreement is declared invalid, illegal, or otherwise unenforceable, the remaining provisions shall continue in full force and effect. j. 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 Restated Agreement. k. Authority to Enter Restated Agreement. Each Party warrants that the individuals who have signed this Restated Agreement have the legal power, right, and authority to make this Restated Agreement and bind each respective Party. 1. Cumulative Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Restated 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. M. Counterparts. This Restated Agreement may be signed by counterparts, each of which shall constitute an original. n. Entire Agreement. This Restated 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] 0 55575.18120\34607961.3 IN WITNESS WHEREOF, the Parties have entered into this Restated Agreement as of the Effective Date. CITY OF PALM SPRINGS, a California charter city 0 .A A .1- ATTEST By: Anthony J. M ' APPROVED AS TO FO By: C) Jeffrey S. alli r, City Attorney AGUA CALIENTE BAND OF CAHUILLA INDIANS, a federally recognized Indian tribe By: P"e-- MargVet Park, AICP, MBA Chief Planning Officer John Counsel 7 55575.18120\34607961.3 EXHIBIT B TERMINATION AND RELEASE OF ENCROACHMENT AGREEMENT [To be inserted behind this cover sheet] 55575.18 l 20\34607961.3 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Agua Caliente Band of Cahuilla Indians 5401 Dinah Shore Drive Palm Springs, California 92264 Attention: Margaret Park APNs: 513-250-009, -010, -022 2022-0118106 03/10/2022 11:08 AM Fee: $ 20.00 Page 1 of 9 Recorded in official Records County of Riverside Peter Aldana Assessor -County Clerk -Recorder 1III �I���'�'����� SPACE ABOVE THIS LINE FOR RECORDER'S USE Termination and Release of Encroachment Agreement THIS TERMINATION AND RELEASE OF ENCROACHMENT AGREEMENT (this "Agreement") is made and entered into on January 1, 2022 (the "Effective Date") by and between the Agua Caliente Band of Cahuilla Indians, a federally recognized Indian tribe ("Tribe"), and the City of Palm Springs, a California charter city ("C"). Tribe and City are sometimes individually referred to as a "Par " and collectively as the "Parties" in this Agreement. RECITALS A. Tribe and City entered into that certain Encroachment Agreement dated March 12, 2001 and recorded on April 19, 2001 as Document No. 2001-165697 in the Official Records of Riverside County, California (the "Encroachment Agreement"). B. Tribe and City desire to terminate the Encroachment Agreement as of the Effective Date and release each other from any past, present, or future obligations as more fully set forth herein. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Terminiltion of Encroachment Agreement. City and Tribe do hereby mutually agree to terminate the Encroachment Agreement as of the Effective Date. The Parties agree that the provisions of the Encroachment Agreement and any and all agreements, instruments, certificates, or other documents entered into at any time between City and Tribe concerning the Encroachment Agreement, except this Agreement and the encroachment permit issued related to the Encroachment Agreement, are hereby deemed rescinded, terminated, and voided ab initio and shall be of no force and effect such that City and Tribe shall not have any obligation to perform any act for the benefit of the other pursuant to the foregoing. 1 55575.18120\34607961.3 2. Mutual Releases. a. In consideration of the covenants, agreements, and undertakings of the Parties under this Agreement, each Party, on behalf of itself and its respective present and former officers, employees, agents, attorneys, and advisors (collectively, "Releasors") hereby releases, waives, and forever discharges the other Party and its respective present and former, direct and indirect, officers, employees, agents, attorneys, and advisors (collectively, "Releasees") of and from any and all actions, causes of action, suits, losses, liabilities, rights, debts, dues, sums of money, accounts, reckonings, obligations, costs, expenses, liens, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands, of every kind and nature whatsoever, whether now known or unknown, foreseen or unforeseen, matured or unmatured, suspected or unsuspected, in law, admiralty, or equity (collectively, "Claims"), which any of such Releasors ever had, now have, or hereafter can, shall, or may have against any of such Releasees for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of time through the Effective Date arising out of or relating to the Encroachment Agreement, except for Claims relating to rights and obligations preserved by, created by, or otherwise arising out of this Agreement. b. Each Releasor understands that it may later discover Claims or facts that may be different from, or in addition to, those that it or any other Releasor now knows or believes to exist regarding the subject matter of the release contained in this Section 2, and which, if known at the time of signing this Agreement, may have materially affected this Agreement and such Party's decision to enter into it and grant the release contained in this Section 2. Nevertheless, the Releasors intend to fully, finally, and forever settle and release all Claims that now exist, may exist, or previously existed, as set out in the release contained in this Section 2, whether known or unknown, foreseen or unforeseen, or suspected or unsuspected, and the release given herein is and will remain in effect as a complete release, notwithstanding the discovery or existence of such additional or different facts. The Releasors hereby waive any right or Claim that might arise as a result of such different or additional Claims or facts. The Releasors have been made aware of, and understand, the provisions of California Civil Code Section 1542 ("Section 1542"), which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." The Releasors expressly, knowingly, and intentionally waive any and all rights, benefits, and protections of Section 1542 and of any other state or federal statute or common law principle limiting the scope of a general release. 3. Dispute Resolution. a. Preliminary Negotiation. City and Tribe shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation. b. Arbitration. Any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or 2 55575.18120\34607961.3 validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, that cannot be resolved through preliminary negotiation shall be determined by binding arbitration in Riverside County, California before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the JAMS' Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This provision shall not preclude the Parties from enforcing the award with a court of appropriate jurisdiction or seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction in accordance with Section 5 below. 4. 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 or relating to this Agreement, whether arising in contract, tort, state, federal, or Tribal laws or otherwise. 5. Limited Waiver of Sovereign Immunity. By this provision, Tribe does not waive, limit, or modify its sovereign immunity against contested suits except as specifically provided herein. Tribe hereby agrees to waive its sovereign immunity solely for the limited purpose of authorizing only City (a) to initiate an arbitration seeking to enforce all rights granted to City under this Agreement; (b) to seek provisional remedies in aid of arbitration; or (c) to enforce an arbitration award. In the event the Parties to this Agreement have a need to seek provisional remedies in aid of arbitration or to enforce an arbitration award and are unable to do so without litigation, the only jurisdiction and venue for such litigation shall be either the United States District Court, Central District of California, Eastern Branch or the Superior Court of the State of California, County of Riverside. 6. Representations and Warranties. Each Party hereby represents and warrants to the other Party that: a. It has the full right, power, and authority to enter into this Agreement, to grant the release contained herein and to perform the obligations hereunder. b. The execution of this Agreement by the individual whose signature is set out at the end of this Agreement on behalf of such Party, and the delivery of this Agreement by such Party, have been duly authorized by all necessary action on the part of such Party. C. This Agreement has been executed and delivered by such Party and (assuming due authorization, execution, and delivery by the other Party hereto) constitutes the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms. d. It (i) knows of no Claims against the other Party relating to or arising out of this Agreement that are not covered by the release contained in Section 2 and (ii) has neither assigned nor transferred any of the Claims released herein to any person or entity and no person or entity has subrogated to or has any interest or rights in any Claim. 3 55575.18120\34607961.3 EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 6 OF THIS AGREEMENT, (A) NEITHER PARTY HERETO NOR ANY PERSON ON SUCH PARTY'S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY HERETO ACKNOWLEDGES THAT, IN ENTERING INTO THIS AGREEMENT, IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH OTHER PARTY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6. 7. Indemnification. a. Each Party (as "Indemnifying Party") shall defend, indemnify, and hold harmless the other Party, and its officers, directors, managers, employees, and agents (collectively, "Indemnified Party"), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by an Indemnified Party (collectively, "Losses"), arising out of or resulting from any claim of a third party alleging: (i) breach by Indemnifying Party or its officers, directors, managers, employees, or agents of any representation, warranty, covenant, or other obligation set out in this Agreement; or (ii) negligence or more culpable act or omission of an Indemnifying Party or its officers, directors, managers, employees, or agents (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement. b. Notwithstanding anything to the contrary in this Agreement, the Indemnifying Party is not obligated to indemnify, defend, or hold harmless the Indemnified Party against any Losses arising out of or resulting, in whole or in part, from the Indemnified Party's: (i) willful, reckless, or negligent acts or omissions; or (ii) bad faith failure to comply with any of its obligations set out in this Agreement. C. An Indemnified Party seeking indemnification under this Section 7 shall give the Indemnifying Party: (i) prompt Notice (as defined below) of the relevant claim; provided, however, that failure to provide such Notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (ii) reasonable cooperation, at the Indemnifying Party's expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party's rights or interests. The Indemnified Party shall have the right to participate in the defense at its own expense. 4 55575.18120\34607961.3 d. THIS SECTION 7 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY. 8. Assignment of Agreement. Neither this Agreement nor any of the rights, interests, or obligations hereunder shall be assigned by any of the Parties hereto (whether by operation of law or otherwise) without the prior written consent of the other Party. Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors and assigns. 9. Miscellaneous Provisions. a. Delivery of Notices. All notices, requests, consents, demands, waivers, summons, or other legal process, or similar types of communications permitted or required under this Agreement (each, a "Notice") 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: City: City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: Justin Clifton City Manager Tribe: Agua Caliente Band of Cahuilla Indians 5401 Dinah Shore Drive Palm Springs, California 92264 Attn: Margaret Park, AICP, MBA Chief Planning Officer All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective only (i) on receipt by the receiving Party and (ii) if the Party giving the Notice has complied with the requirements of this Section 8(a). b. Governing Law. This Agreement shall in all respects be interpreted, enforced, and governed by the laws of the State of California. This Agreement shall not be construed either for or against City or Tribe, but this Agreement shall be interpreted in accordance with the general tenor of the language in an effort 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 of its costs and expenses, including, without limitation, legal interest thereon and all of its reasonable attorney's fees and arbitration fees incurred in connection with such action. 55575. l 8120\34607961.3 d. 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 City include all officials, officers, employees, personnel, agents, volunteers, contractors, and subcontractors of City, 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. e. Amendment: Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. f. 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. g. 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. h. Counterparts. This Agreement may be signed by counterparts, each of which shall constitute an original. i. 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] 6 55575.18120134607961.3 0 IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the Effective Date. CITY OF PALM SPRINGS, a California charter city APPROVED AS TO FORM By: J rey . Balli r, City Attorney ATTEST By: /Anthony J Li a, City bl AGUA CALIENTE BAND OF CAHUILLA INDIANS, a federally recognized Indian tribe By: Margaret Park, AICP, MBA Chief Planning Officer APPROVED AS TO FORM John Counsel 55575.18120\34607961.3 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of R\V�►�F On OI 127-j Zo22- , before me ►A Zany notary public, personally appeared NM-UAP&T PAS who proved to me on the basis of satisfactory evidence to be the persont} whose names) is/subscribed to the within instrument, and acknowledged to me that Wshe/flaey executed the same in kris/her/Heir authorized capacity��, and that by b,i&/her/,heir signaturekq on the instrument the person j&J, or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. e MINDY CHIANG-EPSTEIN Notary Public - CaliforniaRiverside County Commission # 2232944 My Comm. Expires Mar 30, 2022 (SEAL) WITNESS my hand and official seal. 11-14 MIz i r.���rEx>E:i�►zr'��irlr'ycz��rt3 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California Countyof Q Iv 16& On f&Y1lA!M �VI.Lbefore me MOWI G M. LU► U . a notary public, personally appeared t j M5IK UttTOn . who proved to me on the basis of satisfactory evidence to be the persarits),whose named sl&are subscribed to the within instrument, and acknowledged to me that (?/she/they executed the same in Q/her/their authorized capacityD%)'-and that by &RNr/their signatureW on the instrument the persons or the entity upon behalf of which the personN acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. 'i . >, ;ems MONIQUE M. LOMELI (SEAL) / " Notary Public . California = ,.q;l • : Riverside County Commission 8 2267330 My Comm. Expires Nov 17, 2022 2 55575.18120134607961.3 WITNESS my hand and official seal. No ry Public