2023/06/27 City Council Resolution 2023-051 RESOLUTION NO. 2023-051
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING A SECOND AMENDED AND RESTATED
MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF ROHNERT
PARK AND THE FEDERATED INDIANS OF THE GRATON RANCHERIA
WHEREAS; the Federated Indians of Graton Rancheria, is a federally recognized Indian
tribe (the"Tribe"); and
WHEREAS, the Tribe is comprised of Coast Miwok and Southern Porno Indians whose
aboriginal territory includes Mann and Sonoma Counties, California; and
WHEREAS, the Tribe and the City entered into a Memorandum of Understanding
("Original MOU")made effective as of October 14, 2003,providing for funds to mitigate impacts
of the Tribe's proposed gaming facility on the City and to make investments in and contributions
to the Rohnert Park community; and
WHEREAS, the City and the Tribe entered into the First Amended and Restated MOU
("First Amended MOU"), dated as of March 26, 2013 and effective as of April 17, 2013, which
amended, replaced and effectively terminated the Original MOU in its entirety, and further called
for both recurring and non-recurring payments to the City to mitigate impacts of the Tribe's
gaming facility on the City via an account established pursuant to the Compact for the receipt of
revenues paid by the Tribe (the "Graton Mitigation Fund"); and
WHEREAS, in November, 2013, the Tribe opened its gaming facility, the Graton Resort
& Casino (the "Gaming Facility") on the Reservation; and
WHEREAS, the Tribe and City have advanced a cooperative and mutually respectful
government-to-government relationship between themselves; and
WHEREAS, the Tribe intends to construct an expansion of the Gaming Facility (the
"Expansion") on the Reservation, and in furtherance of such Expansion, has initiated a Tribal
Environmental Impact Report ("TEIR") process under which it has solicited and received
comments from the public, including from the City; and
WHEREAS, the Tribe is committed to continuing to improve the environment, health,
safety, and general welfare of its citizens and of the surrounding community; and
WHEREAS, the Tribe wishes to continue to provide adequate funding to the City to
mitigate impacts of the Gaming Facility and to continue to enrich the social, educational, and
environmental conditions of the community; and
WHEREAS, the Parties wish to establish, by and through the Second Amended and
Restated Memorandum of Understanding ("Second Amended MOU"), a method for the Tribe to
provide such funding directly to the City without use of the Graton Mitigation Fund following the
effective date of the 2023 Compact; and
WHEREAS, the City intends to use the mitigation funding provided by the Tribe under
the Second Amended MOU to mitigate impacts on City resources and services such as, without
limitation,traffic,staffing levels in public safety,public works,neighborhood upgrades,workforce
housing, problem gambling, storm water drainage and other impacts, and to use the community
benefit contributions provided by the Tribe to improve the environment,health, safety and general
welfare of its residents; and
WHEREAS, the City and the Tribe desire to enter into the Second Amended MOU to set
forth the understandings of the Tribe and the City on the topics expressly set forth in the Second
Amended MOU, and to amend, replace, and terminate the First Amended MOU in its entirety as
of the Effective Date.
NOW,THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve a Second Amended and Restated Memorandum of
Understanding by and between the Federated Indians of the Graton Rancheria, a federally
recognized Indian tribe, and the City of Rohnert Park, a municipal corporation.
BE IT FURTHER RESOLVED that the City Manager, or her designee, is hereby
authorized and directed to take all actions to effectuate this Second Amended and Restated
Memorandum of Understanding in substantially similar form attached hereto as Exhibit "A" for
and on behalf of the City of Rohnert Park, subject to modifications approved by the City
Manager or City Attorney.
DULY AND REGULARLY ADOPTED this 27th day of June, 2023.
CITY OF ROHNERT PARK
a Rodriguez, Mayo '
ATTEST: C-
izabet Machado, Assistant City Clerk
Exhibit A
ELWARD: (dye GIUDICE: ck.�e_ SANBORN: Pie. HOLLINGSWORTH ADAMS: Q�e, RODRIGUEZ: 1" 4 e.
AYES: ( 5 ) NOES: ( j ) ABSENT: ( 1,25 ) ABSTAIN: (525 )
Resolution 2023-051
Page 2 of 2
SECOND AMENDED AND RESTATED MEMORANDUM OF UNDERSTANDING
BY AND BETWEEN
THE CITY OF ROHNERT PARK
AND THE FEDERATED INDIANS OF GRATON RANCHERIA
DATED AS OF: Jvne 2-1, 2�j
EFFECTIVE AS OF: 3-00e- 2-1► 2-023
4887-3266-6707 v20
4887-3266-6707 v20 i
TABLE OF CONTENTS
Page
1.DEFINITIONS..........................................................................................................................3
2.RECURRING CONTRIBUTIONS...........................................................................................6
2.1 MITIGATION CONTRIBUTION...........................................................................6
2.2 COMMUNITY BENEFIT CONTRIBUTIONS......................................................7
2.2.1 Supplemental................................................................................................7
2.2.2 Workforce Housing and Neighborhood Upgrade........................................7
2.2.3 School Contribution.....................................................................................7
2.2.4 Rohnert Park Foundation.............................................................................8
3.PAYMENT TERMS .................................................................................................................8
3.1 PAYMENTS............................................................................................................8
3.2 PAYMENT SCHEDULE TRANSITION...............................................................8
3.3 CPI ADJUSTMENT................................................................................................8
3.4 PUBLIC ATTRIBUTION.......................................................................................8
4.MEASURES TO ADDRESS EFFECTS OF EXPANSION ON CIRCULATION..................8
4.1 THEATER OPERATIONAL MEASURES............................................................9
4.2 GOLF COURSE DRIVE AND LABATH AVENUE IMPROVEMENTS
CONSTRUCTED BY TRIBE.................................................................................9
4.3 CIRCULATION IMPROVEMENTS CONSTRUCTED BY CITY.....................10
4.3.1 Traffic Improvements ................................................................................10
4.3.2 Timing of Payments...................................................................................11
4.3.3 Timing of Installation of Improvements....................................................11
5.TERM AND TERMINATION................................................................................................11
5.1 EFFECTIVE DATE .............................................................................................11
5.2 TERM ....................................................................................................................12
5.3 EFFECT OF EXPIRATION OR TERMINATION...............................................12
5.4 TERMINATION ..................................................................................................12
6.SUSPENSION EVENTS.........................................................................................................12
7.RENEGOTIATION PROVISION ..........................................................................................13
7.1 RENEGOTIATION EVENTS..............................................................................13
7.2 FUNDAMENTAL CHANGES RENEGOTIATION PRINCIPLES ...............13
7.3 FUNDAMENTAL CHANGES RENEGOTIATION PROCEDURES ...........14
4887-3266-6707 v20 ii
8.EXPANSION OF GAMING FACILITY................................................................................14
9.TRIBE’S TRUST APPLICATION.........................................................................................14
10.SEVERABILITY ....................................................................................................................15
11.DISPUTE RESOLUTION PROVISIONS .............................................................................15
11.1 DISPUTE RESOLUTION ...................................................................................15
11.2 MEET AND CONFER ........................................................................................15
11.3 MEDIATION OR OTHER DISPUTE RESOLUTION ....................................16
11.4 BINDING ARBITRATION ................................................................................16
11.5 DAMAGES............................................................................................................17
11.6 CONFIRMATION OF AWARDS......................................................................17
11.7 INTERVENTION .................................................................................................17
11.8 CONFIDENTIALITY ..........................................................................................17
12.WAIVER OF SOVEREIGN IMMUNITY .............................................................................18
13.REPRESENTATIONS AND WARRANTIES.......................................................................18
13.1 AUTHORITY .......................................................................................................18
13.2 DUE AUTHORIZATION ...................................................................................18
13.3 DUE EXECUTION AND DELIVERY ..............................................................18
13.4 ENFORCEABILITY............................................................................................18
13.5 NO CONFLICT ....................................................................................................18
13.6 WAIVERS ............................................................................................................18
14.GENERAL PROVISIONS......................................................................................................19
14.1 NO SUBMISSION TO JURISDICTION..............................................................19
14.2 THIRD PARTY MATTERS..................................................................................19
14.3 NOTICE.................................................................................................................19
14.4 GOVERNING LAW..............................................................................................20
14.5 CONSTRUCTION OF AGREEMENT.................................................................20
14.6 BINDING AGREEMENT.....................................................................................20
14.7 JOINT EXERCISE OF POWERS AGREEMENTS.............................................20
14.8 COUNTERPARTS; ELECTRONIC SIGNATURES...........................................20
14.9 ENVIRONMENTAL REVIEW ............................................................................20
14.10 AMENDMENTS ...................................................................................................21
THIS SECOND AMENDED AND REST .TED MEMORANDUM OF
UNDERSTANDING (the"MOU") is made this7day of, kl,V,,2023, by and between the City
of Rohnert Park, a California municipal corporation, organized and existing under and by virtue
of the laws of the State of California(the"City"), and the Federated Indians of Graton Rancheria,
a federally recognized Indian tribe (the "Tribe") (each a "Party" and collectively the"Parties").
The capitalized terms not otherwise defined herein have the meanings set forth below.
RECITALS
WHEREAS, the Tribe is comprised of Coast Miwok and Southern Pomo Indians whose
aboriginal territory includes Marin and Sonoma Counties, California; and
WHEREAS, in 1966, the federal government terminated its relationship with the Tribe
pursuant to the California Rancheria Act of 1958(Pub.L. 85-671)and transferred title to the lands
known as the Graton Rancheria into private ownership; and
WHEREAS, in 2000, Congress restored federal recognition to the Tribe pursuant to the
Graton Rancheria Restoration Act ("Restoration Act"), Pub. L. 106-568; and
WHEREAS, the Restoration Act requires the Secretary of the Department of the Interior
(the"Secretary")to accept into trust for the benefit of the Tribe, as part of the Tribe's reservation,
any real property identified by the Tribe and located in Marin or Sonoma County; and
WHEREAS, after substantial consultations, the Tribe identified a site suitable for its
reservation adjacent to the boundaries of the City and within the unincorporated area of the County
of Sonoma(the"Reservation"); and
WHEREAS, the Tribe and the City entered into a Memorandum of Understanding
("Original MOU")made effective as of October 14,2003,providing for funds to mitigate impacts
of the Tribe's proposed gaming facility on the City and to make investments in and contributions
to the Rohnert Park community; and
WHEREAS, on October 1, 2010, pursuant to the Restoration Act, the Secretary accepted
the Reservation into trust on behalf of the Tribe; and
WHEREAS, on May 17, 2012, the California Legislature ratified a gaming compact (the
"2012 Compact") between the Tribe and State that authorizes the operation of a class III gaming
facility on the Reservation pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 et
seq. ("IGRA"); and
WHEREAS, on July 12, 2012, the Secretary published notice in the Federal Register that
the Compact is considered to have been approved but only to the extent consistent with the
provisions of IGRA; and
WHEREAS, the City and the Tribe entered into the First Amended and Restated MOU
("First Amended MOU"), dated as of March 26, 2013 and effective as of April 17, 2013, which
amended, replaced and effectively terminated the Original MOU in its entirety, and further called
for both recurring and non-recurring payments to the City to mitigate impacts of the Tribe's
4887-3266-6707 v20 1
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gaming facility on the City via an account established pursuant to the Compact for the receipt of
revenues paid by the Tribe (the “Graton Mitigation Fund”); and
WHEREAS, in November, 2013, the Tribe opened its gaming facility, the Graton Resort
& Casino (the “Gaming Facility”) on the Reservation; and
WHEREAS, the Tribe and City have advanced a cooperative and mutually respectful
government-to-government relationship between themselves; and
WHEREAS, the Tribe has fulfilled its payment obligations under the First Amended MOU
to date, and as of March, 2023, the Tribe had paid over one hundred seventeen million dollars
($117,000,000) to the City via the Graton Mitigation Fund; and
WHEREAS, the Tribe intends to construct an expansion of the Gaming Facility (the
“Expansion”) on the Reservation, and in furtherance of such Expansion, has initiated a Tribal
Environmental Impact Report (“TEIR”) process under which it has solicited and received
comments from the public, including from the City; and
WHEREAS, the legality of certain requirements of the 2012 Compact, including but not
limited to the TEIR process and Graton Mitigation Fund, have been called into question due to
recent federal administrative and court rulings; and
WHEREAS, the Tribe has negotiated a new class III gaming compact with the State of
California (the “2023 Compact”) which, has been duly signed by the Governor and ratified by the
Legislature and which, once approved by the Secretary of the Interior, will permit the Tribe to
increase the number of class III Gaming Devices currently allowed in the Gaming Facility; and
WHEREAS, the 2023 Compact does not include certain requirements which have been
held not to be permitted under IGRA, including but not limited to the Graton Mitigation Fund; and
WHEREAS, the Tribe is committed to continuing to improve the environment, health,
safety, and general welfare of its citizens and of the surrounding community; and
WHEREAS, the Tribe wishes to continue to provide adequate funding to the City to
mitigate impacts of the Gaming Facility and to continue to enrich the social, educational, and
environmental conditions of the community; and
WHEREAS,theParties wish to establish, byand throughthis MOU,amethod fortheTribe
to provide such funding directly to the City without use of the Graton Mitigation Fund following
the effective date of the 2023 Compact; and
WHEREAS, this MOU does not constitute a “project” for CEQA purposes because it
involves the creation of a government funding mechanism and/or other government fiscal activity.
The terms in this MOU do not involve any commitment to any “project” outside of an Indian
reservation which may result in a potentially significant physical impact on the environment and
only requiretheTribeto makepayments foridentified mitigation measures andcommunity benefit
programs. This MOU does not obligate the City to undertake any specified mitigation measure or
4887-3266-6707 v20 3
program or construction project nor does it set a time for development as those terms are used in
CEQA; and
WHEREAS, the City recognizes and acknowledges that the Gaming Facility is located
outside the incorporated boundaries of the City and that the City has no authority to exercise
jurisdiction over the Reservation, the Gaming Facility, or the Expansion. The City does not have
legal authority to deliberate on, approve, disapprove, or otherwise exercise judgment regarding the
Gaming Facility or the Expansion. The City is therefore not deliberating on, approving,
disapproving, or otherwise exercising judgment regarding the Gaming Facility or the Expansion
by entering into this MOU; and
WHEREAS, the City acknowledges that the contributions and investments to be made by
the Tribe hereunder are intended and expected to be sufficient to mitigate the impacts of the
Gaming Facility and the Expansion on the City; and
WHEREAS, time is of the essence with respect to commencement and completion of the
Expansion, which requires the prompt and timely approval on the part of the City of the MOU so
that no disruption of the Expansion occurs. The Parties anticipate that the Expansion may
commence as early as June 2023; and
WHEREAS,theCityintends tousethemitigation fundingprovidedby theTribehereunder
to mitigate impacts on City resources and services such as, without limitation, traffic, staffing
levels in public safety, public works, neighborhood upgrades, workforce housing, problem
gambling, storm water drainage and other impacts, and to use the community benefit contributions
provided by the Tribe to improve the environment, health, safety and general welfare of its
residents; and
WHEREAS, on November 28, 2022, the City received notice from the Secretary of the
Tribe’s application, Case Number 33327, to take an additional approximately seventy-three (73)
acres of land adjacent to the Reservation into trust on behalf of the Tribe (the “Trust
Application”); and
WHEREAS, the City has submitted comments supporting the Trust Application; and
WHEREAS, the purpose of this MOU is to set forth the understandings of the Tribe and
the City on the topics expressly set forth in this MOU, and to amend, replace, and terminate the
First Amended MOU in its entirety as of the Effective Date.
NOW, THEREFORE, in consideration of the above and of the mutual promises herein contained,
the sufficiency of which is acknowledged, the Parties hereby agree as follows:
1.DEFINITIONS
The following defined terms, as used in this MOU, shall have the following meanings:
“2012 Compact” means the Tribal-State Compact between the State and the Tribe, governing the
conduct of Gaming Activities on the Reservation pursuant to IGRA, as executed on March 27,
2012 by the State and March 26, 2012 by the Tribe, considered to have been approved by the
4887-3266-6707 v20 4
Secretary pursuant to 25 U.S.C. § 2710(d)(8)(C), notice of which was published in the Federal
Register on July 12, 2012 (a correction to the notice was published July 23, 2012), as the same
may be amended or restated from time to time, and which is available online at:
http://gov.ca.gov/docs/Graton_Compact_executed.pdf.
“2023 Compact” means the Tribal-State Compact between the State and the Tribe, governing the
conduct of Gaming Activities on the Reservation pursuant to IGRA, as executed on March 1, 2023
by the Tribe, and March 9, 2023 by the State, ratified by the Legislature on May 11, 2023 and
subject to final approval by the Secretary pursuant to 25 U.S.C. § 2710(d)(8)(C), notice of which
will be published in the Federal Register, as the same may be amended or restated from time to
time, which will replace and terminate the 2012 Compact, and is available online at:
https://www.gov.ca.gov/wp-content/uploads/2023/03/Graton-Rancheria-
Compact.pdf?emrc=0a46ba.
“Caltrans” means the State of California, Department of Transportation.
“CEQA” means the California Environmental Quality Act, California Public Resources Code §
21000 et seq., and any amendments thereto, and the regulations promulgated thereunder, as the
same may be amended or modified from time to time.
“Circulation Contribution” is defined in Section 4.3.1.
“City” means the City of Rohnert Park, a California municipal corporation, organized and existing
under and by virtue of the laws of the State of California.
“County” means the County of Sonoma.
“CPI Adjustment” means an annual increase from the dollar amount applicable to the previous
year which is equal to the annual increase in the Consumer Price Index for all urban consumers in
the San Francisco-Oakland-San Jose area.
“District” means the Cotati-Rohnert Park Unified School District.
“Due Dates” means each and every date upon which contributions are due and expected to be
received from the Tribe.
“Effective Date” means the date upon which this MOU takes effect pursuant to Section 5.1.
“Expansion,” as referenced in Section 8 of this MOU, means the expansion of the Tribe’s Gaming
Facility as more fully described in the Notice of Preparation published on or about April 4, 2022,
and in the Final TEIR published on or about May 8, 2023.
“Expiration Date” means the date the 2023 Compact expires or terminates.
“First Amended MOU”means the First Amended and Restated MOU entered into by and between
the Tribe and the City, dated as of March 26, 2013 and effective as of April 17, 2013.
“Force Majeure”is defined in Section 6 of this MOU.
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“Fundamental Changes Renegotiations” is defined in Section 7.1 of this MOU.
“Gaming Activities” means the class III gaming activities authorized by section 3.0 of the 2023
Compact.
“Gaming Device” means any slot machine within the meaning of article IV, section 19,
subdivision (f) of the California Constitution and as defined in section 2.10 of the 2023 Compact.
“Gaming Facility” means the Graton Resort & Casino and all references herein specifically
include the Expansion as defined above.
“Golf Course Drive Improvement” is defined in Section 4.2 of this MOU.
“Graton Mitigation Fund”means anaccount establishedpursuant to the2012 Compact forreceipt
of revenues from the Tribe to be paid to the City and other governmental organizations to mitigate
impacts of the Gaming Facility.
“IGRA” means the Indian Gaming Regulatory Act of 1988 (P.L. 100-497, 18 U.S.C. § 1166 et
seq. and 25 U.S.C. § 2701 et seq.), and any amendments thereto, and the regulations promulgated
thereunder, as the same may be amended or modified from time to time.
“MOU” means this Second Amended and Restated Memorandum of Understanding, dated as of
the last signature below.
“Neighborhood Upgrade Programs”means programs conducted by the City to construct,
reconstruct, rehabilitate, maintain or otherwise provide neighborhood facilities including, but not
limited to, parks, streets, streetscaping, bioswales, sidewalks, lighting, pedestrian/bicycle/multi-
use paths, and public buildings, as well as educational, recreational and cultural arts programs
provided by the City.
“OriginalMOU”meanstheMemorandumofUnderstandingenteredintobyandbetweentheTribe
and the City, dated as of October 14, 2003.
“Party” or “Parties” means individually and collectively the Tribe and the City.
“Payment Commencement Date” means the publication date of the Secretary’s approval of the
2023 Compact in the Federal Register pursuant to IGRA, 25 U.S.C. § 2710(d)(3)(B).
“Public Entity” means the State and any county, city, district, public authority, public agency and
any other political subdivision or public corporation in the State, including, without limitation, the
City.
“Quarter” means any one of the following three-month periods: January through March, April
through June, July through September, and October through December.
“Renegotiation Request” is defined in Section 7.2 of this MOU.
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“Reservation” means certain contiguous parcels totaling approximately 254 acres of land,
including approximately 5 acres currently located within the City and another 68 acres currently
located within the urban growth boundary of the City, which were taken into trust by the Bureau
of Indian Affairs of the United States Department of Interior on October 1, 2010, or any portion
of such land which is held by the United States of America in trust for the benefit of the Tribe, and
any other land which is currently or subsequent to the Effective Date of this Agreement held by
the United States of America in trust for the benefit of the Tribe.
“Restoration Act” means the Graton Rancheria Restoration Act (Pub. L. 106- 568).
“Rohnert ParkFoundation”meansthetax exempt 501(c)(3) non-profit organization incorporated
under articles of incorporation dated November 6, 2008, for the purpose of providing funding in
areas of need in the community of Rohnert Park and to fund projects to enhance and sustain the
community of Rohnert Park, or successor foundation.
“Secretary” means the Secretary of the United States Department of the Interior or their designee.
“Special Enforcement Activities” means public safety activities including, but not limited to,
combating gangs, illegal drug use and other criminal activity in the City.
“State” means the State of California.
“TEIR” means Tribal Environmental Impact Report.
“Tribe” means the Federated Indians of Graton Rancheria, a federally recognized Indian tribe.
“Trust Application” means the Tribe’s application to the Secretary, Case Number 33327, to take
an additional approximately seventy-three (73) acres of land adjacent to the Reservation into trust
on behalf of the Tribe.
“Wastewater JEPA” means the Joint Exercise of Powers Agreement for Wastewater Service, by
and between the City and the Tribe, effective as of July 23, 2012.
“Wilfred Avenue JEPA” means the Joint Exercise of Powers Agreement for Implementing
Mitigation Measures for Widening Wilfred Avenue, by and between the City, County and the
Tribe, effective as of September 25, 2012.
“Workforce Housing Programs” includes programs, services and construction activities to
support housing for households earning less than 120% of median household income of the
Metropolitan Statistical Area in which Sonoma County is located, as established pursuant to
Section 50093 of the California Health and Safety Code, as amended or any successor statute
thereto.
2.RECURRING CONTRIBUTIONS
2.1 MITIGATION CONTRIBUTION:Following the Payment Commencement
Date, the Tribe shall make a recurring contribution to the City of four million, fifty
thousand dollars ($4,050,000) per annum, in quarterly installments, to mitigate
4887-3266-6707 v20 7
impacts of the Tribe’s Gaming Facility on the City, including but not limited to
traffic, law enforcement, Special Enforcement Activities, problem gambling, storm
water, public services, and any other impacts. It is expected that this contribution
should be sufficient to mitigate all such impacts.
2.2 COMMUNITY BENEFIT CONTRIBUTIONS:Following the Payment
Commencement Date, the Tribe shall make recurring contributions to benefit the
community as follows:
2.2.1 Supplemental:The Tribe shall make a recurring contribution to the City
of six million six hundred forty thousand dollars ($6,640,000) per annum,
in quarterly installments, to be used by the City to mitigate all other impacts
of the Gaming Facility, if any, which are not fully mitigated by the
contribution set forth in Section 2.1 of this MOU. To the extent that funds
remain after all impacts of the Gaming Facility are fully mitigated, the
remaining funds of this contribution may be used for the benefit and
development of the community, including but not limited to the
development of affordable housing.
2.2.2 Workforce Housing and Neighborhood Upgrade:The Tribe shall make
a recurring contribution to the City of one million, three hundred thirty
thousand dollars ($1,330,000) per annum, in quarterly installments, to be
used for Neighborhood Upgrade Programs or Workforce Housing
Programs. The City shall submit a report to the Tribe annually, on or about
March 1st, describing the proposed use of the funds provided pursuant to
this Section 2.2.2. The Tribe shall have an opportunity to review and
provide recommendations to the City on the proposed uses which shall be
submitted to the City within forty-five (45) calendar days following the
Tribe’s receipt of the report. The City shall review and consider the Tribe’s
recommendations regarding the proposed use of said funds prior to use of
the funds. The final decision regarding use of the funds provided pursuant
to this Section 2.2.2 shall rest with the City in its sole discretion, with the
exception of proposed uses for Workforce Housing Programs within a one
(1.0) mile radius of the Gaming Facility, in which case the Tribe’s consent
to the use of Section 2.2.2 funds shall be required. For the avoidance of
doubt, the Parties agree that nothing herein prohibits the City from using
funds, other than the funds provided by the Tribe pursuant to this MOU, for
Workforce Housing Programs within a one (1.0) mile radius of the Gaming
Facility and the Tribe’s consent is not required for the use of such other
fundsalthough the Tribe reserves the right to comment onor publicly object
to any such projects.
2.2.3 School Contribution:The Tribe shall make a recurring contribution to the
District of one million, three hundred thirty thousand dollars ($1,330,000)
per annum, in quarterly installments. The Tribe shall distribute these funds
directly to the District. The Tribe’s distribution of these funds to the District
shall be conditional upon the approval by the Tribe, in its sole discretion, of
4887-3266-6707 v20 8
a spending plan for the funds which shall be submitted annually by the
District to the Tribe. The Tribe hereby acknowledges and agrees that the
City shall have no duty, obligation or responsibility to the Tribe or District
to accept school contribution funds on behalf of, and thereafter distribute
such funds to, the District.
2.2.4 Rohnert Park Foundation:The Tribe shall make a recurring contribution
to the Rohnert Park Foundation of one million, three hundred thirty
thousand dollars ($1,330,000) per annum, in quarterly installments.
3.PAYMENT TERMS
3.1 PAYMENTS.The Tribe shall make equal quarterly payments to the City and
District that total the annual amounts in Section 2 of this MOU within forty-five
(45)daysafterthe endof each Quarter. IfthePayment Commencement Date occurs
during a Quarter, the first payment shall be due on the forty-fifth (45th) day
following the end of the first full Quarter and shall cover the period from the
Payment Commencement Date to the end of the first full Quarter.
3.2 PAYMENT SCHEDULE TRANSITION.Payments pursuant toSection2ofthis
MOU shall begin to accrue upon the Payment Commencement Date. Prior to the
PaymentCommencementDate,theCityshallcontinuetoreceivepaymentsthrough
the Graton Mitigation Fund from the State in such amounts as provided pursuant to
the First Amended MOU. Should the Payment Commencement Date occur during
a Quarter, the Tribe’s final payment obligations pursuant to the First Amended
MOU shall be prorated to the Payment Commencement Date.
3.3 CPI ADJUSTMENT.All recurring contributions and deductions described in this
MOU shall be increased annually by the CPI Adjustment, which shall be effective
for distributions covering the quarter beginning on July 1, 2023, and annually
thereafter. For the purposesof this MOU,the April-to-April index shall be effective
to July 1st. In June of each year, the City shall calculate the CPI adjustments
provided for in this Section 3.3 and prepare and provide to the Tribe an annual
payment schedule indicating the contributions to be made within the four Quarters
of that year pursuant to this MOU.
3.4 PUBLIC ATTRIBUTION.The City shall generally identify and publicly
attribute mitigation measures and community investments and projects funded and
supported by the Tribe, including, but not limited to, in the City budget process and
in signage and printed materials, if any, concerning such investments and projects.
4.MEASURES TO ADDRESS EFFECTS OF EXPANSION ON CIRCULATION
The Parties acknowledge that the current understanding related to the timeline for the
development of the Expansion project anticipates the following schedule of construction and
occupancy; this timeline and whether individual components will be constructed is subject to
change at the sole discretion of the Tribe:
4887-3266-6707 v20 9
(a) the construction of a parking garage will commence in approximately June 2023, and
is to be completed approximately 12 months thereafter, and operational in approximately June
2024;
(b) the construction of an expanded gaming floor will commence in approximately June
2024,andistobecompletedapproximately16monthsthereafter,andoperationalinapproximately
October 2025;
(c) the construction of an expanded hotel will likely commence concurrently or after the
completion of the expanded gaming floor construction and is to be completed approximately 18
months thereafter; and
(d) the construction of a new theater will likely commence after the completion of the
expanded gaming floor construction and is to be completed approximately 18 months thereafter.
To facilitate the safe and efficient flow of vehicular, bicycle and pedestrian traffic within
the City and in and around the Gaming Facility, the Parties have identified the following measures
to maintain acceptable circulation operations following development of the Expansion project and
other buildout in accordance with the City’s general plan.
4.1 THEATER OPERATIONAL MEASURES.
Should the Tribe ultimately pursue the theater component of the Expansion, and
prior to the occupancy and operation of said theater, the Tribe shall enter into an agreement
with the City concerning the implementation of appropriate traffic control measures to
facilitate the flow of vehicular traffic before and after events at the theater, as addressed by
the TEIR as follows:
(a) consistent with TEIR Mitigation Measure 4.13-5, measures 1 and 2, provision
of manual traffic control at the Wilfred Avenue/Langer Avenue and Golf Course Drive
West/LabathAvenueintersections,aswellas atanyotherintersectionsthePartiesmutually
identify, either pursuant to (i) an encroachment permit issued by the City to the Tribe and
a private traffic control contractor hired by the Tribe and approved by the City, which
approval shall not be unreasonably delayed or withheld, or (ii) the provision of traffic
control services provided by City’s public safety officers. Further, upon completion of the
Dowdell Connection Improvement identified in Section 4.3.2 (a) below, the parties shall
evaluate the need for manual traffic control at the Business Park Drive/Dowdell Avenue
intersection; and
(b) provision of additional traffic control measures, as needed, to respond to traffic
issues that may arise during events at the theater.
4.2 GOLF COURSE DRIVE AND LABATH AVENUE IMPROVEMENTS
CONSTRUCTED BY TRIBE.
TEIR Mitigation Measure 4.13-2 identifies the need for the Expansion project to
provide a dedicated, dual left turn movement from westbound Golf Course Drive at, and
on to, Labath Avenue (“Golf Course Drive Improvement”). The Tribe agrees that it will
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design, construct, and install the Golf Course Drive Improvement, inclusive of all
modifications to traffic signals and striping, as well as provide for the dedication of all
required right of way necessary to accommodate the Golf Course Drive Improvement, at
its sole cost and expense. The Tribe shall complete the design, construction and installation
of the Golf Course Drive Improvement, in accordance with City standards, prior to
occupancy and operation of the expanded gaming floor, anticipated in October 2025.
The City will review and approve plans and specifications, to be prepared in
accordance with City standards, and provide for the inspection of the Golf Course Drive
Improvements. The City shall issue an encroachment permit to the Tribe for the
construction and installation of the Golf Course Drive Improvement by the Tribe, and in
connection therewith, the Tribe acknowledges and agrees that the encroachment permit
will require the Tribe to comply with the following general conditions as shall be further
outlined therein: (a) the Tribe shall post a performance bond and a labor and material bond,
each in an amount equal to 100% of the cost of construction of the Golf Course Drive
Improvement; (b) to the fullest extent allowed by law, the Tribe shall defend, indemnify
and hold the City harmless from all claims arising from performance of the Golf Course
Drive Improvement work, including, if applicable, claims relating to compliance with
prevailingwagerequirements ofthe CaliforniaLaborCodeand damages awarded pursuant
to Section 1781 thereof; (c) the Tribe shall procure and maintain general liability and
automobile liability policies of insurance of $2,000,000 per occurrence, $5,000,000 in the
aggregate, in connection with the Golf Course Drive Improvement work, which policies
shall be endorsed to name the City as an additional insured, stipulate that such insurance is
primary and any insurance maintained by the City is non-contributing, apply separately to
each insured against whom a claim is made, waive all rights of subrogation against City,
andcontainacross liability/severabilityendorsement; (d)theTribeshall maintainworker’s
compensation insurance as required by the State of California, which shall be endorsed to
waive all rights of subrogation against the City; and (e) provide for the City’s acceptance
of the dedication of right of way required for the Golf Course Drive Improvement and the
acceptance of the Golf Course Drive Improvement upon completion thereof.
4.3 CIRCULATION IMPROVEMENTS CONSTRUCTED BY CITY.
The City and Tribe desire to work together to provide for the implementation of
circulation improvements to better serve their constituents. The Parties acknowledge that
the City’s general plan land use element, as well as specific plans adopted by City, provide
for additional residential and commercial development within the City and in the vicinity
of the Reservation, which coupled with the Expansion project, will affect vehicular,
pedestrian and bicycle circulation in the community.
4.3.1 Traffic Improvements.The Parties acknowledge and agree that four (4)
of the circulation improvements listed below in subsections (a)(i)-(iv), as
identified by the TEIR Mitigation Measures 4.13-1, 4.13-3, and 4.13-5,
Measures 3, 4, 5 and 6, are traffic improvements directly related to the
Expansion. The Parties further acknowledge and agree that two (2)
additional traffic improvements, as outlined in subsections (a)(v) and (b)
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below, will help to support City circulation and may provide benefits to the
Gaming Facility.
(a)The Tribe agrees to contribute $3,863,971 towards the
improvements listed assubsections (i)through(v)(the“Circulation
Contribution”) and the City agrees to use the Circulation
Contribution to fund all or a portion of one or more of the
improvements set forth in subsections (i) through (v).
(i)Golf Course Drive West/Redwood Drive Improvement
(ii)U.S. 101 South Offramp Improvement
(iii)U.S. 101 North Offramp Improvement
(iv)Automated Traffic Monitoring System Improvement
(v)Rohnert Park Expressway/Redwood Drive Improvement
(b)In addition to the Circulation Contribution, the Tribe also agrees to
donate a critical right-of-way (ROW) to enable the extension of
Dowdell Avenue to Business Park Drive, as more particularly
described and depicted in Attachment 1 and the cross-section in
Attachment 2. The City agrees to consult with the Tribe on the
project design plans and the Parties will jointly determine the
appropriate scope of the ROW. This shall occur prior to formalizing
the ROW via legal instrument and securing any necessary federal
approvals.
4.3.2 Timing of Payments.Commencing on October 1, 2023, and annually for
two years thereafter, the Tribe shall pay the City the Circulation
Contribution by depositing with City three (3) equal sums of $1,287,990.67
($3,863,971 ÷ 3), which the City shall deposit into a segregated account.
4.3.3 Timing of Installation of Improvements.The Parties acknowledge and
agree that the timing of the installation of the circulation improvements
listed in Section 4.3.1 above may be impacted by a number of factors
outside of the City’s control, including without limitation (i) coordination
with and approvals by CalTrans and other agencies, and (ii) the acquisition
of land for use as public right of way. Subject to the foregoing, City shall
use good faith efforts to complete the design, construction and installation
of the improvements identified the TIER as mitigation measures and listed
in subsections 4.3.1 (a) (i), (ii), (iii), and (iv) above prior to December 2030.
5.TERM AND TERMINATION
5.1 EFFECTIVE DATE.This MOU shall become effective on the later to occur of
the following events (the “Effective Date”):
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5.1.1 This MOU has been approved by the City Council of the City, approved as
to form bylegal counsel fortheCityandexecutedanddelivered bytheCity;
and
5.1.2 This MOU has been approved by the Tribal Council and the General
Council of the Tribe, approved as to form by outside legal counsel to the
Tribe, and executed and delivered by the Tribe.
5.2 TERM.Once effective, this MOU shall be in full force and effect until the date
the 2023 Compact or any extension thereof expires or is terminated (“Expiration
Date”). Notwithstanding the foregoing, the Expiration Date of this MOU shall be
automatically extended for any period that Gaming Activities continue to be
operated onthe Reservationandthe terms (includingtheTribe’s obligation to make
all payments due pursuant to this MOU) shall be in full force and effect until the
Parties meet, confer and renegotiate new terms of a memorandum of understanding
as provided for in Section 7 hereof. Based on the foregoing, the terms of this MOU
shall expire when the Parties successfully renegotiate and adopt a new
memorandum of understanding, thereby superseding this MOU.
5.3 EFFECT OF EXPIRATION OR TERMINATION.Upon the Expiration Date,
as provided for in this Section 5.2, or termination, as provided for in Section 5.4,
of this MOU, the provisions of this MOU shall be of no further force and effect and
none of the provisions of this MOU shall survive such expiration or termination;
provided, however, that the Tribe shall make contributions pursuant to the terms of
this MOU which became due and payable prior to any Expiration Date; and
provided, further, that, if this MOU terminates for reasons unrelated to a default by
the City, the Tribe shall make any contributions pursuant to the terms of this MOU
which became due and payable prior to such termination date.
5.4 TERMINATION.Unless otherwise agreed by the Parties, this MOU shall
automatically terminate in the event, and on the date, that the Tribe permanently
ceases the operation of all Gaming Activities on the Reservation.
6.SUSPENSION EVENTS
If, due to Force Majeure (as hereinafter defined), an act of God, valid business
considerations or any other reason, 51% or more of all Gaming Activities conducted by the Tribe
on the Reservation immediately prior to the Force Majeure event are suspended or terminated for
aperiodofat least thirty(30)days, theTribe’sobligations tomakefinancial contributions pursuant
to this MOU shall be suspended until such time as the Gaming Activities are resumed. For the
purposes of this section, theterm “Force Majeure”shall include, without limitation, thefollowing
circumstances that result in a suspension of 51% or more of all Gaming Activities previously
conducted by the Tribe on the Reservation: earthquake; flood; fire; other natural disasters; changes
in law, regulation, or governmental policy; riots; war; epidemic, pandemic or terrorism. Nothing
in this section shall impact the Tribe’s liability for financial contributions which became due and
payable prior to the date such Gaming Activities were suspended or terminated. When a Force
Majeure event occurs, the Tribe shall provide written notice within seventy-two (72) hours of the
4887-3266-6707 v20 13
event that performance of its obligations is prevented or delayed, and within seventy-two (72)
hours after Gaming Activities are resumed. Upon resumption, the Tribe shall not be responsible
for contributions for the period of suspension, and any quarterly payments for such period(s) shall
be prorated to reflect the suspension.
7.RENEGOTIATION PROVISION
7.1 RENEGOTIATION EVENTS.The City or the Tribe may request that the other
Party renegotiate one or more of the provisions of this MOU if there is a change in
law, facts, gaming market or other unforeseen circumstances that fundamentally
change the City’s or the Tribe’s financially reasonable assumptions made in
entering into this MOU (“Fundamental Changes Renegotiations”). Nothing in
this section requires the Tribe to wait until revenues have been adversely impacted
before requesting renegotiation. However, if the Tribe’s revenues have not been
adversely impacted at the time of its request to renegotiate, the Tribe will provide
verifiable documentation to substantiate any anticipated loss of revenue. Examples
of Fundamental Changes Renegotiations include, without limitation, a significant
adverse impact on either the City’s or the Tribe’s financial assumptions such as the
following:
7.1.1 any change in applicable laws or the opening of any competing gaming
facility or operation that reduces or is anticipated to reduce the Tribe’s
actual revenues in the calendar year following the change in applicable law
or opening of a competing gaming facility or operation by at least 25% from
the Tribe’s actual revenues in the calendar year preceding the change in
applicable law or opening of a competing gaming facility or operation; and
7.1.2 a substantial reduction in the scope of all Gaming Activities permitted on
the Reservation, whether pursuant to a change in federal, state or local
constitutions, laws, rules or regulations, or amendment of the Compact.
7.2 FUNDAMENTAL CHANGES RENEGOTIATION PRINCIPLES.The
Parties acknowledge and agree that the principal goals of federal Indian policy as
expressed by the Congressional findings set forth in IGRA include providing a
means of promoting tribal economic development, self-sufficiency, and strong
tribal governments (25 U.S.C. § 2701(4)). On the other hand, provision of benefits
to the surrounding community above and beyond the costs of mitigation of any
negative impacts of a gaming operation is a policy choice of the Tribe. Therefore,
a principle of any negotiations under this section shall always be that while
mitigation of any negative impacts of the Gaming Facility on the City, as provided
in Sections 2.1 and 4 of this MOU, is an obligation of the Tribe, the community
benefit contributions of Section 2.2 of this MOU depend on the Tribe’s ability to
make such contributions. Nevertheless, in no event shall such Fundamental
Changes Renegotiations result in the contributions provided to the City and County
to be less than 2% of Net Win as required by Section 11.1 of the 2023 Compact,
and any reductions to the City will be by a percentage equal to or less than the
percentage reduction to the County.
4887-3266-6707 v20 14
7.3 FUNDAMENTAL CHANGES RENEGOTIATION PROCEDURES.All
requests to enter into Fundamental Changes Renegotiations shall be by written
notice, supported by substantial evidence of the basis for such request, and shall
include reference to the provision(s) of this MOU to be renegotiated
(“Renegotiation Request”). Upon the issuance and receipt of a Renegotiation
Request,theParties shallattempt torenegotiatethis MOUingood faith. TheParties
shall confer promptly and determine a schedule for commencing negotiations
within fifteen (15) days of the notice. Each Party is hereby authorized to designate
the person or persons responsible for conducting the negotiations and shall execute
any documents necessary to confirm such authorization. The purpose of the
Fundamental Changes Renegotiations will be to attempt to renegotiate the
provision(s) of this MOU identified in the Renegotiation Request in good faith so
that the Parties retain substantially the same rights, levels of mitigation, and
community benefits contemplated as of the date of this MOU. If the Parties are
unable to agree upon the dollar amounts necessary to maintain substantial
mitigation of impacts and a mutually agreeable level of community investments (if
any) within one hundred and eighty (180) days of commencing Fundamental
Changes Renegotiations, the Parties may trigger the dispute resolution provisions
contained in Section 11.
8.EXPANSION OF GAMING FACILITY
It is the intention of the Parties that this MOU shall serve as an Intergovernmental
Agreement between the Parties regarding the Expansion of the Tribe’s Gaming Facility as more
fully described in the Notice of Preparation published on or about April 4, 2022, and in the Final
TEIR published on or about May 8, 2023 (the “Expansion”). The City does not object to the
Expansion. To the extent that Section 11 of the 2012 Compact, regarding off-reservation
environmental and economic impacts, remains in effect and is valid and enforceable, which is not
conceded by the Parties, the Parties agree that the requirement of subsection 11.8.4 of the 2012
Compact, requiring that fifty-five (55) days have passed from the Tribe’s certification and
circulation of its final TEIR before the completion of negotiations for an Intergovernmental
Agreement, shall be and is hereby waived. Further, in the event that this Agreement is not fully
executed until after groundbreaking for the Expansion has occurred, the Parties agree that the
requirement of subsection 11.8.7 of the 2012 Compact requiring an intergovernmental agreement
to be executed prior to commencement of construction shall also be and is hereby waived.
9.TRIBE’S TRUST APPLICATION
The City recognizes and honors the fact that all the land that comprises and surrounds what
now constitutes the City of Rohnert Park is the aboriginal and historic homeland of the Tribe, that
the Reservation represents a small fraction of the Tribe’s homeland, and that the Restoration Act
contemplates and provides the Tribe the right to have lands in the counties of Sonoma and Marin
takeninto trust forits benefit. TheTribe appreciates theCity’s positioninthis matterandits strong
statement of support for the Trust Application. In keeping with Government Code § 54260 et seq.,
which expresses the policy of the State of California to support tribal self-determination and self-
government and to reduce barriers to access and acquisition of ancestral lands by tribes, it is the
policy of the City to be supportive of applications by the Tribe for additional parcels of land to be
4887-3266-6707 v20 15
taken into trust for its benefit. Specifically, the City agrees to meet and confer in a good faith
attempt to resolve any potential concerns with future trust applications submitted by the Tribe
during the term of this MOU.
10.SEVERABILITY
Notwithstanding any provision of California law to the contrary, if any provision of this
MOU is held to be illegal, invalid, or unenforceable under present or future laws, such provision
shall be fully severable, this MOU shall be construed and enforced as if such void, illegal, invalid,
or unenforceable provision had never comprised a part of this MOU, and the remaining provisions
of this MOU shall remain in full force and effect and shall not be affected by the void, illegal,
invalid, or unenforceable provision or by its severance from this MOU. Similarly, notwithstanding
any provision of California, Federal or Tribal law to the contrary, if any provision of this MOU
requires the City, Tribe, or any other Public Entity to take any action which has not been taken in
connection with the approval of this MOU or otherwise, or subjects this MOU to the referendum
or initiative process under California law, this MOU shall be construed and enforced as if such
provision had never comprised a part of this MOU, and the remaining provisions of this MOU
shall remain in full force and effect and shall not be affected by the applicable provision or by its
severance from this MOU. In the event that the entire MOU is declared void, illegal, invalid,
unenforceable or unauthorized, the Parties shall enter into good faith negotiations to negotiate a
new agreement that maintains the expectation of each Party in entering into this MOU. If any of
the events referenced in this section occurs, the Parties shall endeavor in good faith negotiations
to replace the applicable provision or provisions with a substitute provision, the economic and
other effects of which comes as close as possible to that of the provision which has been severed.
Such negotiations shall be conducted pursuant to the provisions of Section 7.3 of this MOU.
11.DISPUTE RESOLUTION PROVISIONS
11.1 DISPUTE RESOLUTION.To foster good government-to-government
relationships and to assure that the Tribe is not unreasonably prevented from
engaging in and benefiting from gaming and other commercial activities on the
Reservation, and the City is able to ensure that the off-reservation impacts of the
Gaming Facility are fully mitigated, the Parties agree to the dispute resolution
procedures set forth in this section.
11.2 MEET AND CONFER.The Parties shall make their best efforts to resolve
claims arising under this MOU by good faith negotiations whenever possible. Any
such disputes between the Parties shall first be subjected to a process of meeting
and conferring in good faith to foster a spirit of cooperation in the implementation
of the terms of this MOU as follows:
11.2.1 A Party shall give the other Party, as soon as possible after the event giving
rise to the dispute, written notice setting forth, with specificity, the claims
of breach of this MOU.
4887-3266-6707 v20 16
11.2.2 The Parties shall meet and confer in a good faith attempt to resolve such
dispute through negotiation not later than 10 days after the receipt of notice,
unless the Parties agree in writing to an extension of time.
11.3 MEDIATION OR OTHER DISPUTE RESOLUTION.If such dispute is not
resolved to the satisfaction of the Parties, the Parties may, by mutual agreement,
pursue mediation or any other method of dispute resolution; provided, however,
that no Party is under an obligation to agree to such mediation or other method of
dispute resolution.
11.4 BINDING ARBITRATION.If such dispute is not resolved to the satisfaction
of the Parties within thirty (30) calendar days after either the first meeting or after
any other dispute resolution under section 11.3, or such other extended period as
the Parties may agree in writing, then the Parties may seek to have the dispute
resolved by binding arbitration in accordance with the following procedures:
11.4.1 Upon the request of a Party in writing, the dispute shall be submitted to
binding arbitration in accordance with this Section 11.4.
11.4.2 The disputes to be submitted to arbitration shall be limited to claims arising
under this MOU and which were subject to the meet and confer in Section
11.2 of this MOU.
11.4.3 In the event there is any dispute as to whether a matter is subject to the
arbitration provisions of this MOU, or any dispute concerning the scope of
the matter or matters to be arbitrated, the disagreement as to whether the
dispute is subject to the arbitration provisions of this MOU or the scope of
such arbitration shall be submitted to the arbitrator referenced in Section
11.4.5, below.
11.4.4 The arbitration shall be conducted before a single arbitrator in accordance
with the JAMS Streamlined Arbitration Rules (or such other streamlined
arbitration rules as the Parties may agree), as modified by the provisions of
this MOU.
11.4.5 The arbitrator shall be selected by the Parties. If at such time the Parties are
unable to agree upon the selection of a single arbitrator, then each Party
shall name one arbitrator and the two arbitrators thus selected shall select a
third arbitrator who shall be a retired California Superior Court or United
States District Court judge; provided, however, if either Party fails to select
an arbitrator within fourteen (14) days of delivery of the request for
arbitration, then the arbitrator selected by the other Party shall conduct the
arbitration.
11.4.6 The arbitration shall take place in Sonoma County, or another location
mutually agreed upon by the Parties.
4887-3266-6707 v20 17
11.4.7 TheprovisionsofSection1283.05oftheCaliforniaCodeofCivilProcedure
shall apply; provided that no discovery authorized by that section may be
conducted without leave of the arbitrator.
11.4.8 Each side shall bear its own costs, attorneys’ fees, and one-half the costs
and expenses of the arbitrator.
11.4.9 The decision of the arbitrator should be made within thirty (30) days of the
arbitration. The decision shall be in writing and shall give reasons for the
decision.
11.5 DAMAGES.The Parties agree that any monetary damages awarded or arising
under this MOU shall be exclusively limited to actual direct damages incurred
based on obligations contained in this MOU that have been demonstrated with
substantial certainty and which do not, in any event, exceed the total amount of the
annual financial contributions which the Tribe is required to make to the City under
the MOU. In no instance shall the Parties to this MOU be entitled to special,
incidental, indirect, consequential, or punitive damages, lost profits or attorneys’
fees. The Parties agree not to assert any claim for damages, injunctive, or other
relief which is not consistent with the provisions of this MOU.
11.6 CONFIRMATION OF AWARDS.Any Party to an arbitration in which an
award has been made pursuant to this section may petition the Federal District
Court for the Northern District of California or the Superior Court of California for
the County of Sonoma or any other court of competent jurisdiction to confirm the
award, including any appellate proceedings. The Parties expressly consent to the
jurisdiction of such Courts for the purpose of confirmation of such an award. An
award shall be confirmed, provided that:
11.6.1 The award is limited to the purposes of arbitration stated in this Section.
11.6.2 No person or entity other than the Parties is a party to the action, unless
failuretojoin a thirdparty woulddeprive thecourt ofjurisdiction; provided,
however, that nothing herein shall be construed to constitute a waiver of the
sovereign immunity of the Parties in respect to any such third party.
11.6.3 If an award is confirmed, judgment shall be entered in conformity with the
award. The judgment so entered has the same force and effect as and is
subject to all the provisions of law relating to, a judgment in a civil action,
and may be enforced like any other judgment of the court in which it is
entered.
11.7 INTERVENTION.NothinginthisMOUshallbeconstruedtoconstituteawaiver
of the sovereign immunity of the Tribe or the City with respect to intervention by
any additional party not deemed an indispensable party to the proceeding.
11.8 CONFIDENTIALITY.Unless otherwise agreed by the Parties, any dispute
resolution meetings or communications, or mediation, shall be in the context of a
4887-3266-6707 v20 18
settlement discussion to potential litigation and remain confidential to the extent
not prohibited by applicable law.
12.WAIVER OF SOVEREIGN IMMUNITY
Pursuant to General Council Resolution #23-18 and subject to the provisions of this
Section, the Tribe expressly and irrevocably waives sovereign immunity (and any defenses based
thereon) in favor of the City, but not as to any other person or entity, as to any dispute which
specifically arises under this MOU and not as to any other action, matters or disputes. The Tribe
does not waive its sovereign immunity with respect to (a) actions by third parties; or (b) disputes
between the Tribe and the City which do not specifically arise under this MOU. The Tribe further
agrees that exhaustion of administrative remedies, including before any tribal court, shall not be
required prior to proceeding to arbitration or court action under Section 11.
13.REPRESENTATIONS AND WARRANTIES
Each Party represents, warrants, and covenants to the other Party as follows:
13.1 AUTHORITY.Such Party has the legal power and authority to execute and
deliver this MOU and to perform its obligations under this MOU.
13.2 DUE AUTHORIZATION.The approval, execution, and delivery of this MOU,
and waiver of sovereign immunity, and the performance by such Party of its
obligations under this MOU, have been authorized by all requisite actions of such
Party.
13.3 DUE EXECUTION AND DELIVERY.The persons executing this MOU on
behalf of such Party are duly authorized to execute and deliver this MOU on behalf
of such Party.
13.4 ENFORCEABILITY.This MOU constitutes the legal, valid, and binding
obligation of such Party, enforceable against such Party in accordance with its
terms, and, once executed and delivered, cannot be invalidated pursuant to any
subsequent action of the City Council of the City or the Tribal Council or General
Council of the Tribe, as applicable.
13.5 NO CONFLICT.The approval, execution, delivery, and performance of this
MOU does not conflict with any other agreement to which such Party is a party and
does not violate or require any action which has not been taken under any law,
statute, rule, regulation, ordinance, general plan, tribal law, specific plan or court
order or decree applicable to such Party.
13.6 WAIVERS.A waiver of any breach of any provision of this MOU shall not
constitute or operate as a waiver of any other breach of such provision or of any
other provisions, nor shall any failure to enforce any provision operate as a waiver
of such provision or of any other provisions.
4887-3266-6707 v20 19
14.GENERAL PROVISIONS
14.1 NO SUBMISSION TO JURISDICTION.The Parties acknowledge and agree
that this MOU,except as otherwisespecified,is not intendedto constitute, and shall
not be construed as constituting, a submission by the Tribe to the jurisdiction of (a)
the City or any of its subdivisions, departments or courts, (b) any of its or their
respective officials, employees, inspectors or contractors, or (c) any of its or their
respective laws, rules, regulations, ordinances, general plans or specific plans.
14.2 THIRD PARTY MATTERS.This MOU is not intended to, and shall not be
construed to, create any right on the part of any third party to bring any action or
otherwise enforce any of its terms.
14.3 NOTICE.All notices required by this MOU shall be deemed to have been given
when made in writing and delivered or mailed to the respective Parties and their
representatives at their respective addresses as set forth below or such other
addresses as they may provide to the other Party from time to time:
For the City:
City of Rohnert Park
130 Avram Avenue
Rohnert Park, California 94928
Attn: City Manager
Telephone: (707) 588-2226
Facsimile: (707) 792-1876
With copies to:
Burke, Williams & Sorensen, LLP
1999 Harrison Street, Suite 1650
Oakland, CA 94612
Attn: Michelle Marchetta Kenyon
Telephone: (510) 273-8780
Facsimile: (510) 839-9104
For the Tribe:
Federated Indians of Graton Rancheria
6400 Redwood Drive, Suite 300
Rohnert Park, CA 94928
Attn: Chairperson
Telephone: (707) 566-2288
Fax: (707) 566-2291
With copies to:
Maier Pfeffer Kim Geary & Cohen, LLP
4887-3266-6707 v20 20
1970 Broadway, Suite 825
Oakland, CA 94612
Attn: Bethany C. Sullivan
Telephone: (510) 835-3020
Fax: (510) 835-3040
14.4 GOVERNING LAW.This MOU shall be governed by, and construed in
accordance with, the laws of the State of California.
14.5 CONSTRUCTION OF AGREEMENT.This MOU, including all recitals,
constitutes the entire agreement between the Parties and supersedes all prior
negotiations, representations, drafts regarding this MOU, whether written or oral,
and all prior agreements and memoranda of understanding concerning mitigation
of impacts of the Gaming Facility and the Expansion, including the First Amended
MOU. In the event of a dispute between the Parties as to the language of this MOU
or any amendment to this MOU or the construction or meaning of any term
contained in this MOU or any amendment to this MOU, this MOU or any
amendment to this MOU shall be deemed to have been drafted by the Parties in
equal parts so that no presumptions or inferences concerning its terms or
interpretation may be construed against, or in favor of, either Party based on the
preparation or negotiation of this MOU or any amendment to this MOU. The
headings contained in this MOU are for convenience of reference only and shall
not affect this MOU’s construction or interpretation.
14.6 BINDING AGREEMENT.This MOU is intended to be, and shall be construed
to be, binding upon the Parties and all successors and successors-in-interest of each
Party, including all officers, agents and employees, and, in the case of the City,
futureCity Councils, and, inthecase oftheTribe, futureTribal Councils or General
Councils.
14.7 JOINT EXERCISE OF POWERS AGREEMENTS.The Parties hereby
acknowledge and agree that the terms of this MOU shall have no effect upon the
terms, conditions, validity or enforceability of the Wastewater JEPA and Wilfred
Avenue JEPA, which remain in full force and effect in accordance with their terms.
14.8 COUNTERPARTS;ELECTRONICSIGNATURES.ThisMOUmaybesigned
in multiple counterparts which, when signed by all Parties, shall constitute a
binding agreement. The Parties further agree that this MOU may be executed and
delivered by electronic signatures and that the signatures appearing on this MOU
are the same as handwritten signatures for purposes of validity, enforceability and
admissibility.
14.9 ENVIRONMENTAL REVIEW.Nothing in this Agreement contemplates or
commits the City to any project which may result in a potentially significant
physical impact on the environment. If and to the extent the City hereafter
determines that it is required to comply with CEQA with respect to any “project”
4887-3266-6707 v20 21
(as such term is defined in CEQA) which causes a physical change in the
environment, the City fully intends to comply with CEQA at such time.
14.10 AMENDMENTS.This MOU may be modified or amended only by mutual and
written agreement of the Parties.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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