HomeMy WebLinkAboutContract 1827 INTERGOVERNMENTAL AGREEMENT
THIS INTERGOVERNMENTAL AGREEMENT ("Agreement") by and between the Agua
Caliente Band of Cahuilla Indians, a federally recognized Indian tribe ("Tribe") and the City of
Cathedral City, California, a California Charter city ("City") is dated and effective as of August
28, 2019. Tribe and City are sometimes hereinafter referred to as a "Party" and collectively as
the "Parties." The terms "Tribe" and "City" as used herein shall include the Parties'
governmental entities, departments, and officials unless otherwise stated.
RECITALS
WHEREAS,the Tribe is a federally recognized Indian tribe located on federal trust lands,
which are located within the geographic boundaries of the cities of Palm Springs, Cathedral City,
Rancho Mirage, and the County of Riverside; and
WHEREAS, the Tribe has inhabited the Coachella Valley and the surrounding mountains
since time immemorial; and
WHEREAS, the Agua Caliente Indian Reservation was established through Executive
Order signed by President Ulysses S. Grant on May 15, 1876 and enlarged through Executive
Order signed by President Rutherford B. Hayes on September 29, 1877, affirming the Tribe's
sovereignty and land-base; and
WHEREAS, under the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 et seq.
("IGRA"), the Tribe may engage in gaming as a means of promoting Tribal economic
development, self-sufficiency, and strong Tribal government; and
WHEREAS, IGRA generally requires that Class III gaming be conducted pursuant to a
Tribal-State Class III gaming compact; and
WHEREAS, on or about August of 2016, the Tribe entered into a gaming compact with
the State of California, as contemplated under IGRA, with an effective date of October 31, 2016
(the "Compact"); and
WHEREAS, the Tribe desires to operate tribal economic development projects in a
manner that benefits the Tribe, its members, and the community as a whole, and the City
recognizes the mutual benefit that can be derived if those goals are achieved; and
WHEREAS, the Tribe has successfully developed and now operates and maintains two
Existing Gaming Facilities (defined below)pursuant to IGRA and the Compact; and
WHEREAS, the Tribe has determined that a new gaming facility within the City of
Cathedral City (the "New Gaming Facility"), featuring gaming activities authorized under
IGRA and the Compact, would be a way in which to generate independent Tribal resources to
provide for the health, education, employment, government, general welfare, safety, and cultural
needs of the Tribe; and
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WHEREAS, in addition to the Existing Gaming Facilities, which have become major
tourist attractions and regional employers bringing millions of dollars into the local community,
the Tribe has successfully developed, or is developing, its lands with other economic
development or governmental projects that serve the Tribe and the community, including the
Agua Caliente Cultural Plaza which includes a world class spa, the new Agua Caliente Cultural
Museum (expected completion 2020), Village Traditions condominium residential project, Twin
Palms single family residential project, Trading Post solar project, Heritage Plaza solar project,
Indian Canyons Golf Resort, Indian Canyons Heritage Park; and
WHEREAS, Section 11.7 of the Compact requires that before commencement of a
"Project," as defined in the Compact, the Tribe must engage in certain specified environmental
review processes and further requires the Tribe and the City or any impacted city to enter into an
"Intergovernmental Agreement" for, among other things, the compensation for law enforcement,
fire protection, emergency medical services, (collectively referred to hereinafter as "Public
Safety Services") and any other public services to be provided in relation to the Tribe's gaming
operations and the mitigation of any effect on public safety attributable to the Project; and
WHEREAS, the Parties recognize that this Agreement therefore is an important and
mutually beneficial means for furthering the government-to-government relationship between the
Parties and in building trust, mutual respect, good will, and cooperation for the benefit of the
entire community; and
WHEREAS, the Tribe now anticipates the construction of the New Gaming Facility,
which constitutes a "Project" under the Compact. In accordance with the Compact, the Bureau
of Indian Affairs has properly issued a Notice of Preparation of An Environmental Assessment /
Tribal Environmental Impact Report("EA/TEIR")to the State Clearinghouse in the State Office
of Planning and Research and the City for distribution to the public; posted the Notice of
Preparation on a publicly accessible website; filed a copy of the Draft EAJTEIR and the Notice
of Completion of the Draft EA/TEIR with the State Clearinghouse, State Gaming Agency, City,
California Department of Justice, and Office of the Attorney General; posted a copy of the
Notice of Availability/Completion of the Draft EA/TEIR and a copy of the Draft EA/TEIR on a
publicly accessible website; submitted the requisite copies of the Draft EA/TEIR and Notice of
Availability/Completion of the Draft EA/TEIR to the City; satisfied the forty-five (45) day
public comment period; has prepared, certified, and made available to the City, State
Clearinghouse, State Gaming Agency, California Department of Justice, and Office of the
Attorney General a Final EA/TEIR; and
WHEREAS, the Tribe formally negotiated the Intergovernmental Agreement with the
City; and
WHEREAS, it is in the best interests of both Parties to enter into this Agreement for the
purposes set forth herein.
NOW, THEREFORE,the Parties agree as follows:
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AGREEMENT
SECTION 1. PURPOSES OF AGREEMENT
1.1 The purpose of this Agreement is to set forth certain agreements of the Parties that
are intended to:
(a) Ensure the timely mitigation of any effect on transportation and
circulation, Public Safety Services, other public services and utilities, and noise attributable to
the New Gaming Facility (collectively, the "Covered Matters"); and
(b) Establish a mutually agreeable means to address and mitigate the Covered
Matters; and
(c) Identify the process to resolve disputes that may arise between the City
and the Tribe under this Agreement; and
(d) Create a framework for continuing to build and maintain a mutually
beneficial government-to-government relationship between the Tribe and the City; and
(e) Identify ways for the Tribe and the City to work together to provide
additional services and benefits to the Tribal community and the City.
SECTION 2. DEFINITIONS
Capitalized words not otherwise specifically defined in this Agreement shall have the definitions
of such words as may be set forth in the Compact. The following terms shall be defined in this
Agreement as set forth in this Section:
2.1 "Agreement" means this Intergovernmental Agreement, which shall be deemed
to be the Intergovernmental Agreement between the Parties as required under Section 11.7 of the
Compact.
2.2 "City" means the City of Cathedral City, California, a California Charter City.
2.3 "Compact" means the Tribal-State Compact between the State of California and
the Agua Caliente Band of Cahuilla Indians effective October 31, 2016.
2.4 "Compact Mitigation Measures" means the Tribe's obligations and payment(s)
as set forth in subsection 3.3(a)below.
2.5 "Compact Mitigation Payment" means the payment(s) as set forth in subsection
3.3(a) below.
2.6 "Covered Matters" means those matters as set forth in subsection 1.1(a) above.
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2.7 "EA" means an environmental assessment prepared by the Bureau of Indian
Affairs pursuant to the requirements of the National Environmental Policy Act (NEPA; 42
United States Code [USC] § 4321 et seq.) for the New Gaming Facility.
2.1 "Effective Date" means the date this Agreement is executed by both Parties and
so designated above in the introduction to this Agreement.
2.2 "Gaming Device" means a Gaming Device as defined in Section 2.10 of the
Compact.
2.1 "IGRA" means the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 et seq.
2.2 "New Gaming Facility" means a"Gaming Facility" as defined in Section 2.12 of
the Compact, which the Tribe intends to construct on approximately 13.6-acres bordered by East
Palm Canyon Drive/Highway 111 on the south, Date Palm Drive on the east, Buddy Rogers
Avenue on the north, and commercial and vacant parcels within the City to the west, and which
is within the geographical boundaries of the City and contiguous to the Reservation.
2.3 "Reservation" means the Agua Caliente Indian Reservation and includes land
within the exterior boundaries of the Reservation as established by Presidential Executive Order,
federal patent, or deed, and any other lands held in trust by the United States for the Tribe.
2.4 "Payment Commencement Date" means the date set forth in subsection 3.3(a)
below.
2.5 "Project" means an activity defined as a "Project" in Section 2.25 of the
Compact.
2.6 "Significant Effect(s) on the Off-Reservation Environment" shall be as
defined in Section 2.27 of the Compact.
2.7 "Tribal Environmental Impact Report" or "TEIR" is the report described in,
and subject to, Section 11.1 of the Compact prepared by the Bureau of Indian Affairs for the
New Gaming Facility.
2.8 "Tribe" means the Agua Caliente Band of Cahuilla Indians, a federally
recognized Indian tribe.
2.9 "Term" means the term of this Agreement as provided in subsection 11.7 of this
Agreement.
SECTION 3. NEW GAMING FACILITY MITIGATION MEASURES
3.1 New Gaming Facility. The Parties acknowledge that the establishment of the
New Gaming Facility may create the need for additional law enforcement, fire protection,
emergency medical services, and other public services to be provided to the Tribe related to the
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New Gaming Facility and the need to mitigate the effect on public safety attributable to the New
Gaming Facility. The Parties also acknowledge that the New Gaming Facility will provide
substantial benefits to the Tribe, City, and surrounding communities, including increased
employment, an important market for local vendors, and an attraction to patrons, tourists, and
revenues from out of the area.
3.2 New Gaming Facility Intergovernmental Agreement.
(a) The Parties recognize that both the positive and negative effects of the
New Gaming Facility on the interests of the Parties may be difficult to quantify, but in the
government-to-government spirit that underlies this Agreement, and in order to address the need
for additional Public Safety Services and other public services to be provided to the Tribe related
to the New Gaming Facility and the need to mitigate the effect on public safety attributable to the
New Gaming Facility, and resolve differences of opinions between the Tribe and the City as to
the extent and materiality of this need and the mitigation thereof, the Parties have agreed to add
certain mitigation measures that take all of those positive and negative effects into account. The
Compact Mitigation Measures embodied in this Agreement are intended to constitute the
Intergovernmental Agreement between the Tribe and the City to the extent required under
Section 11.7 of the Compact with respect to the New Gaming Facility.
(b) The Tribe and the City agree that any Significant Effect on the Off-
Reservation Environment from the New Gaming Facility will be adequately mitigated by the
Tribe through its obligations under the Final EA/TEIR and that this Agreement will set forth a
framework for mitigating the Covered Matters (the "Compact Mitigation Measures").
3.3 Compact Mitigation Measures. The Compact Mitigation Measures set forth
herein shall address and satisfy the Covered Matters due to the construction and operation of the
New Gaming Facility.
(a) Compact Mitigation Payment. To address and satisfy the Covered
Matters due to the construction and/or operation of the New Gaming Facility, commencing on
the first anniversary of issuance of the certificate of occupancy for the New Gaming Facility (the
"Payment Commencement Date") and continuing for nine (9) years thereafter on the 1st day of
October of each successive year, the Tribe shall make an annual Compact Mitigation Payment of
one hundred fifty thousand dollars ($150,000.00) for a total payment to the City of one million
five hundred thousand dollars ($1,500,000.00) over the term of the Agreement (the "Compact
Mitigation Payment") in accordance with this subsection 3.3.
(b) Compact Mitigation Compliance. In addition to the Compact Mitigation
Payment noted above at subsection 3.3(a), the Tribe in accordance with the mitigation measures
identified in the New Gaming Facility Final EA/TEIR at Table 5-1 shall:
i. Pay 100% of the costs for the design, construction, and similar work
related to the installation of a traffic signal at the intersection of Buddy
Rogers Avenue and Date Palm Drive,
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ii. Pay 16% of the fair share cost of the future design, construction, and
similar work related to the installation of a traffic signal at the intersection
of Cathedral Canyon Drive and Paseo Real,
iii. Contribute an in-lieu and equivalent mitigation payment, at the then
current rate, for the Transportation Uniform Mitigation Fee (TUMF),
iv. Either pay, at the then current rate, the City Transit Development Fee
according to CCMC 14.10.030 and as set by City resolution, or receive
credit for the Transit Development Fee for funding the construction of a
bus stop as part of the widening of East Palm Canyon and Date Palm
Drive, CCMC 14.10.040,
v. Pay, at the then current rate, the City Facilities Impact Fees, as set by City
ordinance or resolution, for the New Gaming Facility,
vi. Make an annual payment, at the then current rate, to the City Fire and
Police Facilities and Equipment Fund pursuant to Chapter 3.17 of the
CCMC, and
vii. In coordination with the City, fund mutually acceptable noise reduction
measures along Buddy Rogers Avenue adjacent to existing City parks.
(c) Release from Future Damage. Except as is provided in subdivision (e)
below, the City acknowledges and agrees that construction and operation of the New Gaming
Facility will result in the need to address and satisfy the Covered Matters and mitigate the
Significant Effect(s) on the Off-Reservation Environment identified in the Final EA/TEIR.
Upon the Tribe's completion of the Compact Mitigation Measures set forth in subsections 3.3(a)
and (b) above, the City hereby releases and forever holds the Tribe, its Tribal Council and each
member thereof, and its directors, officers, members, representatives, agents, contractors, and
employees free and harmless from further obligations that pertain to the Tribe's construction and
operation of the New Gaming Facility.
(d) Covenant not to Sue. Notwithstanding any provision herein to the
contrary, the City agrees not to commence any action or proceeding against the Tribe concerning
the construction and/or operation of the New Gaming Facility after the mitigation measures
identified in the Final EA/TEIR are completed and the Compact Mitigation Payment is paid in
full.
(e) Future Need for Additional Services. The Tribe and the City
acknowledge and agree that operation of the New Gaming Facility will require ongoing, and
potentially additional, Public Safety Services and other public services provided by the City
(collectively referred to herein after as "City Services") beyond the Term of this Agreement. In
the event that the New Gaming Facility is still in operation in the ninth(9th) year of the Term and
is expected to continue operating beyond the expiration of the Term of this Agreement, the
Parties shall meet beginning in January of the 9th year and assess whether the level of City
Services to the New Gaming Facility, or other development on the site, has increased or
decreased during the Term beyond that originally contemplated in this Agreement and/or
whether additional City Services are necessary or desirable. If the Parties mutually agree that
there has been a change in the level of City Services or that additional City Services are
necessary or desirable, then the Parties shall negotiate either an extension or amendment to this
Agreement or a new agreement between them that is mutually agreeable. In the event that the
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Parties are reasonably unable to approve and duly execute such arrangements before the
expiration of the Term, then the Term of this Agreement, and Tribes obligations to make any
annual or ongoing payments to City, shall be automatically, without any action or notice
required by or from either party to the other, be extended in consecutive six (6) month
increments, until the Parties have come to a mutually agreeable arrangement or have settled any
dispute that has arisen pursuant to Section 7 of this Agreement.
3.4 Regular Meetings of the Parties. In an effort to maintain and promote good
government-to-government relations between the Tribe and the City, the Parties' designated
representatives shall meet on a regular basis, every six (6) months to discuss issues of mutual
interest.
SECTION 4. FUTURE ENVIRONMENTAL REVIEW AND MEASURES
4.1 For any future changes to the New Gaming Facility beyond the scope
contemplated in the Final EA/TEIR, the Parties agree to follow the requirements of the Compact
or any requirements of any State Gaming Compact between the Tribe and the State of California
then in place. The Parties agree to commit to having a continuing dialogue with regard to mutual
collaboration on future governmental projects benefitting both the Tribe and City in the areas of
roadway infrastructure, law enforcement, public safety, and other such programs as may be
feasible.
SECTION 5. EFFECT OF FEDERAL LAWS REGARDING ENVIRONMENTAL
MATTERS
5.1 Notwithstanding any provision to the contrary, the Parties acknowledge that the
Tribe is subject to federal laws and regulations regarding the environment and health and safety,
including, but not limited to, the Clean Water Act, Safe Drinking Water Act, Endangered Species
Act, IGRA, and the Occupational Safety and Health Act, and permit conditions including, but
not limited to, conditions in any National Pollution Discharge Elimination System permits.
Except as provided below, the Parties agree that the matters regulated by these laws, regulations,
and permits shall be matters that are between the Tribe and the federal agency having jurisdiction
over such statutes, regulations, and permits, and a violation of such statutes, regulations, and
permits shall not be considered in conflict with this Agreement or a required part of it.
Consistent with the above, the City shall retain whatever rights it may have with respect to
participation in the matters regulated by these laws, regulations, and permits, including without
limitation, the rights to take such administrative or legal actions as may be necessary to protect
its rights in accordance with the statutes and regulations applicable to the federal agency
conducting the proceedings.
5.2 Any dispute or disagreement the City has with a federal process or its outcome
thus shall only be subject to the remedies available in such process and not through the dispute
resolution or other provisions of this Agreement.
5.3 Nothing herein shall be construed as limiting the Parties' respective rights to
reach agreement on a voluntary basis with each other over such matters outside such federal
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process, subject to applicable law and the sole discretion of each Party as to whether or not to
negotiate or agree on such matters outside the context of the federal process itself.
SECTION 6. CONFIDENTIALITY OF INFORMATION
6.1 The Parties acknowledge and agree that this Agreement is subject to the
requirements of the California Public Records Act (Government Code section 6250 et seq.).
Each Party (a "Receiving Party") acknowledges that the other Party (a "Disclosing Party")
may submit information to the Receiving Party that the Disclosing Party considers confidential,
proprietary, or trade secret information pursuant to the Uniform Trade Secrets Act (California
Civil Code section 3426 et seq.), or otherwise protected from disclosure pursuant to an
exemption to the California Public Records Act (Government Code sections 6254 and 6255). In
order to designate information as confidential, the Disclosing Party must clearly stamp and
identify the specific portion of the material designated with the word "Confidential." The
Parties agree not to over-designate material as confidential. Over-designation would include
stamping whole agreements, entire pages, or series of pages as confidential that clearly contain
information that is not confidential. Upon request or demand of any third person or entity not a
party to this Agreement ("Requestor") for production, inspection, and/or copying of
information designated by a Party as confidential information (such designated information, the
"Confidential Information"), the Receiving Party shall notify the Disclosing Party as soon as
practical that such request has been made. The Disclosing Party shall be solely responsible for
taking whatever legal steps are necessary to protect information deemed by it to be Confidential
Information and to prevent release of information to the Requestor by the Receiving Party. If
the Disclosing Party takes no such action after receiving the foregoing notice from the
Receiving Party, the Receiving Party shall be permitted to comply with the Requestor's demand
and is not required to defend against it.
6.2 If required by applicable federal, state, local, or Tribal law, statute, ordinance, a
court, governmental authority, or agency having jurisdiction over a Party, including the
California Public Records Act, that Party may release Confidential Information, or a portion
thereof, as required by the applicable law, statute, ordinance, decision, order or regulation. In
the event a Party is required to release Confidential Information, such Party shall notify the
other Party of the required disclosure, such that the other Party may attempt (if such Party so
chooses), at its sole cost, to cause the recipient of the Confidential Information to treat such
information in a confidential manner, and to prevent such information from being disclosed or
otherwise becoming part of the public domain.
6.3 Except as provided in this Section and the California Public Records Act, neither
Party shall publish, disclose, or otherwise divulge Confidential Information to any person at any
time during or after the Term of this Agreement, without the other Party's prior express written
consent. Each Party shall permit knowledge of and access to Confidential Information only to
those of its affiliates and to their respective attorneys, accountants, representatives, agents and
employees who have a need to know such Confidential Information related to this Agreement.
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SECTION 7. DISPUTE RESOLUTION
7.1 Dispute Resolution Process. In recognition of the government-to-government
relationship of the Tribe and the City, the Parties shall make their best efforts to resolve disputes
that arise under this Agreement by good faith negotiations whenever possible. Therefore, except
for the right of either Party to seek injunctive relief against the other when circumstances are
deemed to require immediate relief, the Tribe and the City shall seek to resolve disputes by first
meeting and conferring in good faith in order to foster a spirit of cooperation and efficiency in
the administration and monitoring of the performance and compliance of the terms, provisions,
and conditions of this Agreement as follows:
(a) Either Party shall give the other, as soon as possible after the event giving
rise to the concern, a written notice setting forth the facts giving rise to the dispute and with
specificity, the issues to be resolved.
(b) The other Party shall respond in writing to the facts and issues set forth in
the notice within fifteen (15) days of receipt of the notice, unless both parties agree in writing to
an extension of time.
(c) The Parties shall meet and confer in good faith by telephone or in person
in an attempt to resolve the dispute through negotiation within thirty (30) days after receipt of the
notice set forth in subsection 7.1(a) above, unless both Parties agree in writing to an extension of
time.
(d) If the dispute is not resolved to the satisfaction of the Parties after the first
meeting, either Party may seek to have the dispute resolved by an arbitrator in accordance with
this Section 7, but neither Party shall be required to agree to submit to arbitration.
(e) Disputes that are not otherwise resolved by arbitration or other mutually
agreed means may be resolved in the United States District Court in the judicial district and
division where the Tribe's New Gaming Facility is located, or if those federal courts lack
jurisdiction, in any state court of competent jurisdiction in or over the City. The disputes to be
submitted to court action include, but are not limited to, claims of breach of this Agreement.
Notwithstanding any other provision of law or this Agreement, neither the City nor the Tribe
shall be liable for damages or attorney fees in any action based in whole or in part on the fact that
the Parties have either entered into this Agreement or have obligations under this Agreement.
The Parties are entitled to all rights of appeal permitted by law in the court system in which the
action is brought.
(f) In no event may the Tribe be precluded from pursuing any arbitration or
judicial remedy against the City on the ground that the Tribe has failed to exhaust its City
administrative remedies, and in no event may the City be precluded from pursuing any
arbitration or judicial remedy against the Tribe on the ground that the City has failed to exhaust
any Tribal administrative remedies.
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7.2 Arbitration Rules between the Tribe and the City. Arbitration between the
Tribe and the City shall be conducted before a JAMS arbitrator in accordance with JAMS
Comprehensive Arbitration Rules. Discovery in the arbitration proceedings shall be governed by
Section 1283.05 of the California Code of Civil Procedure, provided that no discovery
authorized by that Section may be conducted without leave of the arbitrator. The Parties shall
equally bear the cost of JAMS and the JAMS arbitrator. Either Party dissatisfied with the award
of the arbitrator may at the Party's election invoke the JAMS Optional Arbitration Appeal
Procedure (or if those rules no longer exist, the closest equivalent). In any JAMS arbitration
under this subsection 7.2, the Parties will bear their own attorney's fees. The arbitration shall
take place within seventy-five (75) miles of the New Gaming Facility, or as otherwise mutually
agreed by the Parties and the Parties agree that either Party may file a state or federal court action
to (i) enforce the Parties' obligation to arbitrate, (ii) confirm, correct, or vacate the arbitral award
rendered in the arbitration in accordance with Section 1285 et seq. of the California Code of
Civil Procedure, or (iii) enforce or execute a judgment based upon the award. In any such action
brought with respect to the arbitral award, the Parties agree that venue is proper in any state court
located within the County of Riverside or in any federal court located in the Central District of
California, Eastern Division and all related appellate courts.
7.3 No Waiver or Preclusion of Other Means of Dispute Resolution. This Section
7 shall not be construed to waive, limit, or restrict any remedy to address issues not arising out of
this Agreement that is otherwise available to either Party, nor shall this Section 7 be construed to
preclude, limit, or restrict the ability of the Parties to pursue, by mutual agreement, any other
method of dispute resolution, including,but not limited to, mediation.
SECTION 8. NOTICES
8.1 Notices pursuant to this Agreement and service of process in any judicial or
arbitration proceeding is waived in favor of delivery of documents by (i) delivery by a reputable
document delivery service, such as, but not limited to, Federal Express, that provides a receipt
showing date and time of delivery, or (ii) by Certified Mail — Return Receipt Requested to the
following:
8.2 For the Tribe:
Tribal Chairperson
Agua Caliente Band of Cahuilla Indians
5401 Dinah Shore Drive
Palm Springs, California 92264
Tel: (760) 699-6920
With a copy simultaneously delivered to:
General Counsel
Agua Caliente Office of General Counsel
5401 Dinah Shore Drive
Palm Springs, California 92264
Tel: (760) 699-6952
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8.3 For the City:
City Manager
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City, California 92234
Tel: (760) 770-0372
With a copy simultaneously delivered to:
City Attorney
Burke, Williams& Sorrensen, LLP
1770 Iowa Avenue, Suite 240
Riverside, California 92507
Tel: (951) 788-0100
8.4 Either Party may change the names and addresses to which notices and service of
process may be delivered by written notice to such persons as listed in the subsection or by
subsequent notice of changes.
SECTION 9. MUTUAL LIMITED WAIVER OF SOVEREIGN IMMUNITY
9.1 The Parties agree that the Parties' waiver of immunity from arbitration or suit, or
the enforcement of any order or judgment related thereto, is limited to the express provisions of
Section 7 of this Agreement, and neither the agreement to arbitrate nor any other provision of
this Agreement shall be construed as creating any implied waiver of such immunity.
9.2 The Parties each expressly covenant and agree that they may each sue and be
sued, including the resolution of disputes in arbitration and the judicial enforcement thereof, as
provided in Section 7 above, solely to resolve any controversy arising from this Agreement or to
enforce or interpret the terms and conditions of this Agreement, as provided for in this
Agreement. The Parties expressly agree to waive governmental immunities, including sovereign
immunity, in connection with any claims arising from this Agreement, as provided for herein
solely for the enforcement of any arbitral award, or judgment to enforce such award. The Parties
further consent to the jurisdiction of an arbitrator and/or specified court under this Agreement
including the consent to be sued and bound by a lawful order or judgment, to the extent provided
for herein. Each of the Parties represent that its agreement to such dispute resolution processes
and waivers has been effectively and lawfully granted and that nothing further needs to be done
to effectuate those processes.
9.3 With respect to any action arising out of this Agreement for which there is a
waiver of sovereign immunity, the Tribe and City expressly consent to any state court located
within the County of Riverside or in any federal court located in the Central District of
California, Eastern Division and all related appellate courts, and/or an arbitrator selected
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and specifically waive sovereign immunity for that purpose. The Parties specifically agree that
the applicable court shall have jurisdiction to enter judgments enforcing rights and remedies
provided in this Agreement, which shall be binding and enforceable on the Parties, subject to the
limitations set forth in this Agreement. No Party to this Agreement shall contest jurisdiction or
venue of the above-referenced courts, provided their jurisdiction and venue are invoked in the
order specified, but only for disputes or claims arising out of this Agreement. Neither the Tribe
nor the City shall plead or invoke the doctrine of exhaustion of Tribal or other administrative
remedies, defenses of immunity, or indispensable parties beyond those contemplated in this
Agreement.
9.4 The City and the Tribe may not join or consent to the joinder of any third party to
any action(including but not limited to any arbitration)contemplated herein, unless failure to join
such party would deprive the court or arbitration tribunal of jurisdiction; provided that nothing in
this Agreement shall be construed to constitute a waiver of sovereign immunity or other protection
from lawsuit (or other dispute resolution process), or the effect, orders, or judgments thereof, of
either the Tribe or the City with respect to any claim of any kind by any such third party. In the
event of intervention by any third party into any such action without the consent of the Tribe and
the City, nothing herein shall be construed to constitute a waiver of any immunity with respect to
such third party, and no arbitrator or court shall have jurisdiction to any award any relief or issue
any order as against the City or Tribe with respect to such third party in that or any other
proceeding.
SECTION 10. REVIEW UNDER CALIFORNIA ENVIRONMENTAL QUALITY
ACT
10.1 Pursuant to California Government Code section 12012.46, and in deference to
Tribal sovereignty, the approval and execution of this Agreement by the Parties is not a project
within the meaning of the California Environmental Quality Act, California Public Resources
Code sections 21000 et seq. ("CEQA") because this Agreement has been negotiated pursuant to
the express authority of the Compact, specifically Section 11.7 of the Compact, and because the
Agreement only establishes a source of funds for potential future City actions that are otherwise
required as a matter of law and does not itself approve any development, including the Gaming
Facility Expansion.
SECTION 11. MISCELLANEOUS PROVISIONS
11.1 No Authority over Tribal Activities. Nothing in this Agreement is intended to
confer or expand the jurisdiction of any local, state,or federal agency or other governmental body,
nor is this Agreement intended to infringe or otherwise usurp the authority of any regulatory body
including local,state,federal,or Tribal agencies that may have jurisdiction over or related to Tribal
activities, development, or Projects. Further, nothing in this Agreement shall be construed to
relieve the Tribe's obligation to comply with the National Environmental Policy Act ("NEPA")
as may be required as part of any trust application or any other Project requirement.
11.2 No Third-Party Beneficiaries. This Agreement is not intended to, and shall not
be construed to, create any right on the part of a third party including,without limitation,no rights
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11.2 No Third-Party Beneficiaries. This Agreement is not intended to, and shall not
be construed to, create any right on the part of a third party including, without limitation, no
rights in any interested persons, nor does it create any private right of action for any third party
nor permit any third party to bring an action to enforce any of its terms.
11.3 Final Agreement. This Agreement contains the entire agreement of the Parties
as to the subject matter herein and supersedes any other agreements of the Parties to the contrary.
However, this Agreement shall not prohibit any future agreements contemplated by the Parties.
This Agreement is intended both as the final expression of the agreement between the Parties
with respect to the included terms and as a complete and exclusive statement of the terms of the
Agreement consistent with California Code of Civil Procedure section 1856. No modification or
amendment of this Agreement shall be effective unless and until such modification or
amendment is evidenced by a writing approved and signed by the Parties.
11.4 Severability of Provisions. The invalidity of any provisions or portion of this
Agreement as determined by a court of competent jurisdiction or any State or federal agency
having jurisdiction thereof and the authority to do so, shall not affect the validity of any other
provisions of this Agreement or the remaining portions of the applicable provisions, unless such
provision is material to the reasonable expectation of the Parties. Without limiting the foregoing,
if any provision of the Agreement is declared invalid as aforesaid, then the Parties shall use their
best efforts to renegotiate the terms of the invalid provisions.
11.5 Force Majeure. The Parties shall not be liable for any failure to perform, or for
delay in performance of a Party's obligations, and such performance shall be excused for the
period of the delay and the period of performance shall be extended when a force majeure event
occurs; provided, however, that the Party whose performance is prevented or delayed by such
event or force majeure shall give prompt written notice (i.e., within seventy-two (72)hours of the
event) of such event to the other Party. For purposes of this subsection, the term "force
majeure" shall include, without limitation, war, epidemic, rebellion, riot, civil disturbance,
earthquake, fire, flood, acts of governmental authorities (other than the Tribe or City), acts of
God, acts of terrorism (whether actual or threatened), acts of public enemy and in general, any
other severe causes or conditions beyond the reasonable control of the Parties, the consequences
of which in each case, by exercise of due foresight such Party could not reasonably have been
expected to avoid, and which by the exercise of due diligence it would not have been able to
overcome, when such an event prevents the Tribe from performing at a level sufficient to meet
its obligations under this Agreement due to substantial changes in the Tribe's ability to offer
gaming activities at the current level, ceasing gaming or hotel operations for an extended period,
or prevents the City from meeting its obligations under this Agreement due to an interruption of
City government operations. An interruption of performance, or the delayed occurrence of any
event, under this Agreement caused by an event or force majeure, the Party so excused shall
promptly, diligently, and in good faith take all reasonable action required in order for it to be
able to commence or resume performance of its obligations under this Agreement.
11.6 Governing Law. This Agreement shall be construed according to the application
of federal and California substantive law to the extent not inconsistent with the express
provisions of this Agreement, unless federal law as to the Tribe or the City, or California law as
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to the City, prohibits the Parties from abiding by such express provision, in which case the
provision will be deemed to be invalid and resolved, if possible, under the severability provisions
in subsection 11.4 hereof. Notwithstanding the foregoing, California rules of construction shall
be applied in interpreting this Agreement. This Agreement shall be deemed to have been drafted
jointly by the Parties and shall not be construed as having been drafted by, or construed against,
one party against another.
11.7 Term; Obligations to Continue. The Term of this Agreement shall be from the
Effective Date until the expiration or earlier termination of the Compact as now exists or as may
be amended, restated, or extended by the Tribe and the State to provide for the use of Gaming
Devices at the New Gaming Facility, unless sooner terminated pursuant to the terms of this
Agreement or extended pursuant to Section 3.3(e) of this Agreement or by mutual agreement of
the Parties. Unless specifically designated otherwise, all of the Parties' obligations under this
Agreement shall continue through the Term, including any extensions thereof Notwithstanding
the end of the Term, any covenant, term, or provision of this Agreement which, in order to be
effective, or is necessary to enforce an unfulfilled material term of this Agreement or obligation
that may continue beyond the end of the Term shall survive termination.
11.8 Duplicate Originals. At least two (2) copies of this Agreement shall be signed
and exchanged by the Parties each of which shall be considered an original document.
11.9 Approval. Each Party's execution, delivery, and performance of this Agreement
shall be approved by each Party's respective governing body, which shall provide that the Party
shall not enact a law impairing the rights and obligations under this Agreement.
11.10 Obligation on Related Entities. This Agreement binds the Parties and their
departments, affiliates, agents, representatives, successors, contractors, officials, and related
entities, which such Agreement shall also be reflected in a resolution of each Party's respective
governing body approving the Agreement.
11.11 Authority/Authorization. The City and Tribe each represent and warrant that
each has performed all acts precedent to adoption of this Agreement, including, but not limited
to, matters of procedure and notice and each has the full authority to execute this Agreement and
perform its obligations in accordance with the above terms and conditions, and that the
representative(s) executing this Agreement on behalf of each Party is duly authorized to so
execute and deliver the Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties hereby execute and enter into this Agreement with the
intent to be bound thereby through their authorized representatives whose signatures are affixed
below.
AGUA CALIF► ' BAND I • 1 IANS
By: —..1M1110111L
rubbe, i!man
Attest
By: i ��%�
Vinc: s i ecretary/Treasurer
Approved as to Form:
By:
John1)y.lataeneral Counsel
CITY OF CAT EDRAL CITY
By: Ct,
ar Carnevale, •ayor
Attest
BY: ,VIJC ,P.tA ^'1
Tracey RYMartina, City Clerk
Approved as to Fo :
By: ..:42 —
Eric S. Vail, City Attorney
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