HomeMy WebLinkAboutBill 16-32 Resolution to approve agreement with Pokagon Band of Potawatomi IndianaCITY OF SOUTH BEND
PETE BUTTIGIEG, MAYOR
OFFICE OF THE MAYOR
Mr. Tim Scott
President
South Bend Common Council
400 County City Building
227 W. ,Jefferson Boulevard
South Bend, IN 46601
March 23, 2016
Re: Resolution To Approve Agreement
With Pokagon Band of Potawatomi Indians
Dear Council President Scott:
The City of South Bend and Pokagon Band of Potawatomi Indians have reached an agreement
related to restoration of the Pokagon Band's homeland and proposed development of its 166 -acre
site in South Bend that will be home to a Tribal Village and a Four Winds Casino (the "Site ").
The agreement involves payments in lieu of property taxes by the Pokagon Band to the City of
South Bend, community development initiatives, and other terms and conditions related to the
development of the Site. This agreement was recently approved by the Pokagon Band Tribal
Council and the Pokagon Gaming Authority Board of Directors.
A Resolution for the Common Council to likewise approve this agreement is attached, along with a
copy of the Agreement itself which includes as exhibits the approving resolutions of the Pokagon
Band of Potawatomi Indians Tribal Council and of its Board of Directors. This agreement
represents the spirit of mutual cooperation between the City of South Bend and the Pokagon Band,
and further demonstrates the Pokagon Band's long -term commitment to investing in the City of
South Bend and its residents.
As part of the Local Agreement, the Pokagon Band has agreed to make an annual payment to the
City of South Bend equal to two percent of net win. Half of these payments (one percent of net
win) will be paid directly to the City's General Fund to cover costs of providing services other than
sewer and water to the site and for other purposes.' The other half of these payments (one percent
I Although private water and sewer systems would be permissible on the Site, both the City of South Bend and the
Pokagon Band believe there would be mutual benefit from extending city services to the site. Consequently, the parties
entered into a Sewer and Water Agreement, which was adopted by the Board of Public Works on March 22, 2016. The
Sewer and Water Agreement is attached to this letter for the Council's information. In exchange for city water and
1400 COUNTY -CITY BUILDING • 227 W. JEFFERSON BOULEVARD . SOUTH BEND, INDIANA 466oi
PHONE 574/235-9261 • FAx 574/235-9892 ' TTY 574/235-5567
of net win) will be paid directly to the South Bend Redevelopment Commission to fund initiatives
broadly aimed at contributing to the improvement of educational opportunities in the City and to
address poverty and unemployment in the City. The annual payments made to the City will not be
less than $1 million annually if the casino has between 850 and 1,699 games and will not be less
than $2 million annually if the casino has more than 1,700 games.
In addition to the annual payments to the City of South Bend, the Pokagon Band will fund a variety
of community development projects and causes in the total amount of more than $5 million over
five years. The projects and causes include:
• Bowman Creek Project — The Pokagon Band will provide $500,000 to the Bowman Creek
Project for initiatives intended to restore and protect the Creek and educate the public regarding
its importance to the region.
• Bovs and Girls Clubs of St. Joseph County —The Pokagon Band will provide $100,000 to the
Boys and Girls Clubs of St. Joseph County.
• Food Bank of Northern Indiana — The Pokagon Band will provide $100,000 to the Food Bank
of Northern Indiana.
• Howard Park Improvements —The Pokagon Band will provide $2,225,000 to the City of South
Bend for the purpose of renovating, modernizing and making other improvements to Howard
Park.
• jobs for Americas Graduates - Indiana — The Pokagon Band will provide $250,000 to Jobs for
America's Graduates - Indiana.
• Memorial Children's Hospital — The Pokagon Band will provide $500,000 to Memorial
Children's Hospital of South Bend for the renovation and modernization of the Newborn
Intensive Care Unit (NICU).
• Prairie Avenue Landscaping — The Pokagon Band shall cover all costs to enhance the landscape
of Prairie Avenue within the public right -of -way from US -31 to Locust Road, not to exceed
$200,000.
• Prairie Avenue Resurfacing — The Pokagon Band shall cover all costs to resurface Prairie
Avenue from US -31 to Locust Road, not to exceed $500,000.
• South Bend Community Schools — The Pokagon Band will provide $500,000 to the South Bend
Community School Corporation.
• YMCA Women's Shelter of South Bend — The Pokagon Band will provide $125,000 to the
YMCA Woman's Shelter of South Bend.
sewer services for the initial and build -out phases, the City will receive $400,000 to assist with replacing and upgrading
the Calvert Lift Station.
Further, the Pokagon Band will pay for all upfront costs to develop the Site, including related
professional fees, whether associated with the initial and /or future development of the Site. Such
development costs include, but are not limited to: (i) all costs of road improvements and traffic
safety control devices reasonably related to ensuring safe and efficient means of ground
transportation to, from and around the Site and (ii) all costs of bringing water, wastewater treatment,
and other City- supplied utility services and infrastructure to the Site, subject to the terms of the
Agreement, and the reasonable and necessary operational expenses of such services.
Although Common Council resolutions are usually heard at the Council's regular Monday meeting
following the previous filing deadline, which in this case would be March 28, 2016, in the interest of
greater public awareness, I request that hearing take place on April 11, 2016.
This Agreement represents a big win for the City, and I look forward to the opportunity for Council
discussion.
Cordially,
Pete Btrf5gieg r
Filed in Clerk's Office
[:MAAR2:3:2016
KAREEMAH FOWLER
CITY CLERK, SOUTH BEND, IN
RESOLUTION NO.
A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,
INDIANA, APPROVING AN AGREEMENT WITH THE POKAGON BAND OF
POTAWATOMI INDIANS
WHEREAS, under 25 U.S.C. §§ 1300j et seq. (the Restoration Act), the Pokagon Band of
Potawatomi Indians (the Band) is a federally recognized Indian tribe eligible for special programs
and services provided by the United States to Indians because of their status as Indians, as recognized
by the United States Secretary of the Interior; and
WHEREAS, the Restoration Act sets out a ten (10) county service area in southwestern
Michigan and northern Indiana in recognition of the Band's ancestral homelands, and the Band and
the U.S. Secretary of the Interior (the Secretary) entered into a Memorandum of Understanding on
January 11, 1999 (the MOU) establishing general principles for the geographic areas within which
the Band will acquire land to submit to the Secretary to be taken into trust. The Band is directed
under the MOU to concentrate its land acquisition within four "consolidation sites" within four
geographic areas, three of which are in the State of Michigan and one of which is in the vicinity of
South Bend, Indiana; and
WHEREAS, the Band acquired approximately 166 contiguous acres of land located within
the City of South Bend (the City), bounded by Prairie Avenue (State Road 23), U.S. Highway 31,
and Locust Road (the Site); and
WHEREAS, pursuant to the Restoration Act and the MOU, the Band on or about May 14,
2012, filed an application with the U.S. Department of the Interior, Bureau of Indian Affairs (Trust
Land Application) to have the Secretary take title to the Site in trust for the Pokagon Band of
Potawatomi Indians; and
WHEREAS, the Band plans to develop the Site into a tribal village with 44 housing units
and a multi - purpose facility with health service and other tribal government facilities; and
WHEREAS, the Tribe's development plan for the Site also includes a casino gaming resort
facility, in accordance with Pokagon Band law and the Indiana Gaming Regulatory Act of 1988, P.L.
100 -497, 25 U.S. C. § 2701 et seq. (IGRA), which shall bear the Band's naming brand "Four
Winds" (the Resort); and
WHEREAS, a "Local Agreement" has been negotiated among the Band, the City, through
its Mayor and its Corporation Counsel, and the Pokagon Gaming Authority, an unincorporated
instrumentality of the Band (PGA), which establishes and memorializes the various and beneficial
mutual commitments made out of recognition and respect for the sovereignty and best interests of
each party, a full, complete copy of which is attached hereto as Exhibit 1; and
WHEREAS, among the beneficial provisions of the Local Agreement, the City is assured
that design, construction, and health and safety standards for the Tribal Village and the Resort are at
least as rigorous as state and local laws; that in hiring and purchasing for the Resort, preference will
be given to residents of St. Joseph County, Indiana, including a good faith effort to use minority and
women owned businesses; and that for as long as the Site includes an operating hotel, a contribution
from Tribal Resort Taxes under the Tribal Tax Code will be made annually to the St. Joseph County
Convention and Exhibition Center Fund for promotion of travel, business and tourism in St. Joseph
County, Indiana; and
WHEREAS, the Site, upon being taken into trust by the Secretary and pursuant to federal
law, will be removed from the State and local property tax rolls; however, the Band and the PGA
have agreed to make payments in lieu of taxes for utility, infrastructure, and other services provided
by the City under a formula based on the Resort Gaming revenue which guarantees the City a
minimum, annual fixed amount (between one to two million dollars), and in addition, the Band and
the PGA shall contribute fixed sums over a period of years to South Bend Community Development
initiatives and to several important South Bend non - profit organizations. These are Howard Park
Improvements, the Bowman Creek Project, Prairie Avenue Landscaping and Resurfacing, South
Bend Community School Corporation, Memorial Children's Hospital, YMCA Women's Shelter,
Jobs for Americas Graduates - Indiana, Food Bank of Northern Indiana, and Boys and Girls Clubs of
St. Joseph County; and
WHEREAS, the Common Council finds that the Local Agreement provides significant
benefit to the City and its residents, and that it should be approved.
NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND AS FOLLOWS:
Section I. The Common Council of the City of South Bend, Indiana has considered and
hereby approves the Local Agreement, attached hereto as Exhibit 1 between and among the City of
South Bend, the Pokagon Band of Potawatomi Indians, and the Pokagon Gaming Authority.
Section II. The Mayor is authorized to execute the Local Agreement in form and substance
the same as or similar to that of the Agreement attached hereto as Exhibit 1.
Section III. This Resolution shall be in full force and effect from and after its adoption by the
Common Council and approval by the Mayor.
City Clerk
PRESENTED
NQT APPROVED
Member, Common Council
Filed in Clerk's Office
MAR 23 7016
MR WLER
CITY CLE' SEND, IN
EXHIBIT 1
Execution Copy of Local Agreement
(This space intentionally left blank)
EXECUTION COPY
LOCAL AGREEMENT
This "Agreement" is made on the day of March, 2016 by and between the
POKAGON BAND OF POT AWATOMI INDIANS (the ",Band "), the POKAGON
GAMING AUTHORITY, an unincorporated instrumentality ofthe Band ("PGA!), and
the CITY OF SOUTH BEND, a municipal corporation existing under the laws of Indiana
((he "City').
RECITALS
A. The Band, pursuant to 25 U.S.C. ,§§ 1300j et sea. (the "Restoration Act "),
A. a federally recognized Indian tribe :recognized as eligible by the Secretary of the
Interior for the special programs and services provided by the United States to Indians
because, of their status as Indians, and is recognized as possessing powers of self -
government.,
B. The Restoration Act sets forth a 10 county service area in southwestern
Michigan and northern Indiana in recognition of the Band's ancestral homelands, and the
anticipated acquisition by the Band of lands within its service area to be taken into trust
by the federal government. The Band and the Secretary of the Interior have entered into
a Memorandum of Understanding, executed by the Secretary on January 11, 1999 (the
"MOU ") , that establishes general principles setting forth the geographic areas within
which the Band will acquire land to submit to the Secretary to be taken into trust. The
Band is directed pursuant to "the MOU to concentrate such acquisitions within four
geographic areas, known as "consolidation sites ", in the vicinity of: New Buffalo,
:Michigan, Hartford, Michigan; Dowag ac, Michigan; and South Bend, Indiana.
C. The Band acquired approximately 166 contiguous acres of land located
within the City and bounded by Prairie Avenue (State Road 23), U.S. Highway 31, and
Locust Road, as identified in the attached Exhibit A (the "Site ").
D. On or about May 14, 2012, as provided in the Restoration Act and the
MOU, the Band filed an application with the U.S. Department of the Interior, Bureau of
Indian Affairs ( "Trust Land Application "), to have the Secretary of the Interior take
title to the Site in trust for the Pokagon Band of Potawatomi Indians, Michigan and
Indiana.
E. The Band's plans and foreseeable development for the Site include a tribal
village with 44 housing units and a multi- purpose facility with health service and other
tribal government facilities ( "Tribal Village "). In accordance with Pokagon Band law
and the Indian Gaming Regulatory Act of 1988, P.L. 100 -497, 2 ���
(IGRA "), planned and foreseeable development of the Site alsf incFjhW ktG"i
MAR 2.3 2016
KAREEMAH FOWLER
CITY CLERK, SOUTH REND, IN
EXECUTION COPY
gaining resort facility which shall bear the Band's gaining brand, "Four Winds" (the
"Resort").
F. Thep purpose of 'this Agreement is to establish and the various
Urp arious
and beneficial commitments that the Band and PGA ('13a d Parties ") and the Cit have.
made to each other out of recognition and respect for the sovereignty and mutual best
interests of each party.
G. The City recognizes that representations and agreements made by the Band
Parties -under this Agreement are voluntary on the part of the Band Parties and are not
required by any Indiana law or any federal law, including without limitation
IGRA-
H. The City recognizes and agrees that the Tribal Village and Reso rt; and the
Band Parties' undertakings, under this Agreement are intended and expected to.
substantially itially benefit the South Bend community, and the City wishes I to formally
aclwoWleOge its sup e
support Trust Land Application and the Tribal Village' and
Resort..
I. The City represents that it was authorized to enter into this Agreement by
duly adopted resolution of the City Common Council, a true copy of which is attached as
Exhibit B -1.
J. The Band represents that it was authorized to enter into this Agreement by
duly adopted resolution of the Band. Tribal Council, a true copy of which is attached as
Exhibit B -2.
K. PGA represents that it was authorized to enter into this Agreement by duly
adopted resolution of the Polcagon Gaming Authority Board of Directors, a true copy of
which is attached as Exhibit B-3.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises herein contained, the receipt and sufficiency of which are expressly
acknowledged, the Band, PGA, and the City agree as follows:
1. Recitals true. The above recitals are true.
2. Tribal Laws Concerning Health, Environment and Building Construction. The
Band, in the exercise of its sovereign powers, has enacted and shall sustain as
enacted Band law a Health and Safety Act ("Tribal Health and Safety Act")
which establishes standards that are at least as rigorous as state and local laws
concerning but, not limited to, health, environment, fire protection, and building
construction. The Band shall ensure through implementation and enforcement of
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the Tribal Health and Safety Act that the design and construction of the Resort
meets ;standards that are at least as rigorous as state and local laws.
3. Tribal Tax Code. The Band, in the exercise of its sovereign powers, has enacted
and shall sustain as enacted Band law a Tribal Tax Revenue and Administration
Code ( "Tribal Tax Code "), which includes Tribal taxes on retail sales, food and
beverage service, and hotel occupancy ("Tribal Resort Taxes "). The Band shall
take all necessary steps to ensure that the Tribal Resort Taxes are equal, to or
greater than any state and local taxes which would be applicable to the Resort- if it
were not located on land held by the federal government in trust Tor the Band
( "Trust Land "):
4 Local Preference Polic ::PGA agrees that it shall in hiring and purchasing for the
Resort give preference to residents of St. Joseph County, Indiana. and businesses
I ocated. in St. Joseph County, Indiana, provided that: (a) any such preference shall.
be subordinate to preferences PGA gives to citizens of the Band, their spouses and
children, and to businesses owned by or affiliated with citizens of, the Band (b)
as to hiring, the resident is qualified, holds any licenses that maybe required by
the Band or PGA, and complies with. employment policies established by PGA;
and (c) as to purchasing, the vendor is qualified and holds any licenses that may be
required by the Band or PGA, the vendor's price and other terms are reasonably
competitive, and the proposed vendor can meet bonding and other requirements
established by the Band or FGA. For purposes of this Section 4, qualifications,
licensing, competitiveness and compliance with requirements shall be reasonably
determined by the Band Parties.
5. Minority and Women's Business Participation. PGA agrees that in the operation of
the Resort it shall make a good faith effort to utilize minority and women owned
businesses in an amount that is consistent with the most recent disparity study
conducted by the Indiana Gaming Commission ( "IGC ") under 1C 4- 33- 14 -5(b)
and IC 4- 35- 11 -6(b). To the extent that there maybe a conflict between the
Pokagon Band Employment and Contracting Preferences Code or any successor
law and related policies and procedures ( "Pokagon Preference Requirements ")
and this Section 5, the Pokagon Preferences Requirements shall take precedence.
No later than the first business day of February of each calendar year, PGA shall
file a written report with the City demonstrating its good faith efforts consistent
with this Section 5 relating to the most recent calendar year.
6. Joint Marketing Contribution. PGA agrees that it will contribute to the St. Joseph
County Convention and Exhibition Center Fund ( "Fund ") a portion of the Tribal
Resort Taxes it assesses under the Tribal Tax Code in association with its
operation of any hotel located on the Site ("Tribal Hotel Taxes "). Such
contribution to the Fund shall be for the promotion of travel, business, and tourism.
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in St. Joseph County, which the Fund's Board of Managers shall ,pool with funds it
receives from other hotels in the local assessment area pursuant to Indiana Code §
6 -9 -1 et sect. (the '"Innkeeper's Tax "),: The 'Tribal Hotel Taxes collected by the:
PGA for this purpose shall be equal to the amount that would have been payable to
local government by PGA, as owner of a, hotel, pursuant to the Innkeeper's Tax. In
computing the amount of Tribal Hotel Tax owed under this Section 6, PGA, shall
exclude amounts based on the use and occupancy of any hotel room or rooms it
furnishes to its guests ,on a, complimentary basis. No amount shall be payable
under this Section b unless and until PGA owns and operates a hotel located on the
Site. PGA's agreement to make payments as provided in this Section 6 shall be
enforceable under this Agreement, but the Band expressly does not subject itself
to, or waive its sovereign immunity—as to, the Innkeeper's Tax or any other Indiana
statute. PGA's obligations under this Section 6 are subject to the condition that
PGA enjoys all the same rights tinder the Innkeepers Tax as all other parties that
are subject to and pay the Innkeepers Tax„ including without limitation the
eligibility of persons affiliated with PGA to be appointed and serve on the Fund's
Board of Managers..
7, Tort Claims Act. The Band, in the exercise of its sovereign powers, has enacted
and shall sustain as enacted Band law a "Tort Claims Act" to provide tort
remedies to guests and business invitees of the Band Parties for injuries and illness
sustained within the.teiritorial jurisdiction of the Band. PGA shall take reasonable
steps to inform invitees of the applicability of the Tort Claims Act and other Band
law by posting in a prominent location within Resort facilities a Notice to patrons
at least two (2) feet by three (3) feet in dimension with the following language;
NOTICE
THIS FACILITY IS REGULATED BY ONE OR MORE OF THE
FOLLOWING:
THE NATIONAL INDIAN GAMING COMMISSION, BUREAU OF INDIAN
AFFAIRS OF THE U.S. DEPARTMENT OF THE INTERIOR, AND THE
GOVERNMENT OF THE POKAGON BAND OF POTAWATOMI INDIANS.
THIS FACILITY IS NOT REGULATED BY THE STATE OF INDIANA.
S. Tribal Court. The Band, in the exercise of its sovereign powers, has established
under its Constitution and shall maintain during the Term an independent judicial
forum for the enforcement of rights under the Tort Claims Act.
9. Support of the City. The City agrees, upon request from the Band and at all times
subject to the City's determination that the relevant support activity would not be
contrary to state or local law, to support in good faith the Band's efforts to:
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(a). Have the United States take the Site into trust, by=
(1). 'Submitting a letter and other pertinent documents to the Secretary of the
Interior expressing support for the Trust land Application;
(2). Reasonably supporting, the Band's efforts in legal or administrative
proceedings relating to any decision by the Secretary of the Interior to.
take the Site into trust, including the filing of amicus briefs to assist in
bringing about benefits ;associated with taking the Site into trust, provided
this provision shall not be deemed to diminish the City's autonomy, in
determining the particular legal arguments or positions to be made by the
City in any such amicus <brief to the extent that they are not inconsistent
with the legal arguments or positions of the Band Parties and the U.S.
,government in such proceedings;
(3). Reasonably communicating with and, when needed, traveling to meet
with officials of the Department of the Interior and other federal officials,
whether at Minneapolis, Minnesota, Washington, D.C., or elsewhere.
(b). Negotiate a class III gaming compact ( "Compact ") with the state of Indiana;
that is not inconsistent with the express terms of this Agreement, including
ratification of the .Compact by the Indianageneral assembly and approval of
the Compact by the Secretary of U.S. Department of the Interior.
(c). Obtain: (i) a wetland permit from the U.S. Army Corps of Engineers under
Section 404 of the Clean Water Act (33 U.S.C. § 1251 et seq.); (ii) a water
quality certification from the Indiana' Department of Environmental
Management and/or the Indiana Department of Natural Resources under
Section 401 of the Clean Water Act and applicable Indiana law; and (iii) all
other environmental permits, certifications, and approvals for the development
of the Site that may be required from federal or state agencies under
applicable law.
(d). In general, facilitate the earliest possible opening of the Resort or any phases
thereof, which shall be in compliance with the requirements of Section 2 of
this Agreement.
The Band Parties shall reimburse in a timely manner the City's costs in fulfilling
its obligations under this Section 9, including but not limited to reasonable
professional fees and travel expenses.
10. City Services to the Site. The City shall use reasonable efforts, subject to the
limitations of applicable law, to cause the Department of Public Works to enter:
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into, without unnecessary delay, an agreement with the Band Parties to provide
any and all services to the Site requested by the Band Parties that the Department
of Public Works usually and customarily provides to other residential and
commercial customers,. which -shall include without limitation the extension of
water service and sewer service, and may, as needed, include residential refuse,.
collection and recycling service. To the extent needed to secure services, the City
shall also use reasonable efforts, subject to the limitations of applicable.law, to
cause any other appropriate department or agency of the City to enter into, without
unnecessary delay, one or more agreements with the Band Parties to provide any
other services reasonably requested by the Band or PGA that the City usually and
customarily provides to other residential and commercial customers. Subject to
applicable. law, the City shall provide allsuch service's to the Site upon terms and
'conditions and at costs that are consistent with the City's usual and customary
practices regarding its other commercial and residential customers.
Notwithstanding the foregoing, the parties understand and agree that the ILT
Payments required under Section 14 fulfill all obligations the Band Parties might
have to pay an equitable share of the operational costs and the costs for services
that the City would recover through taxation or other form of assessment if the
Site were subject to taxation by the state and its political subdivisions. Any
agreements entered into under this Section 10 shall be included as separate.
exhibits and incorporated into this Agreement.
H. No Other Gaming, The City agrees to not solicit, encourage, induce, endorse or
support the establishment, operation, or conduct of riverboat gambling and inland
casino gambling under IC 4-33, et seq, and any other types of gaming in the City,
'except for the Indiana state lottery authorized under IC 4-30 et seq., charity
gaming activities authorized under IC 4-32.2 et seq., and type 11 gaming
authorized under IC 4-36 et seq., all to the extent permitted under Indiana law as
of the date of this Agreement written above. Upon the written request of the Band
Parties, the City agrees to actively oppose any proposed expansion of the
foregoing gaming activities in the City beyond the gaming activities that are
already permitted in the City under Indiana law as of the date of this Agreement
written above. Nothing in this Section I I shall be construed as requiring the City
to oppose, avoid or otherwise act or fail to act in a manner that hinders or prevents
the conduct of gaming activity in the City, provided such gaming activity is being
lawfully conducted in the City on the date of this Agreement written above under
applicable state and federal laws.
12. Upfront Costs of Development. The Band Patties will pay for all upfront costs to
develop the Site, including related professional fees, whether associated with the
initial and/or future development of the Site. Such development costs shall
include, but not be limited to: (i) all costs of road improvements and traffic and
safety control devices reasonably related to ensuring safe and efficient means of
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ground transportation to, from and around the Site, as required by the Record of
Decision to be issued by the Bureau of Indian Affairs, U.S. Department of the
Interior CTIA") in Compliance with the National Environmental Policy Act of
1970 (42 U.S.C. § 4321 et seq.) upon its approval of-the Trust Land Application;
and (ii) all costs of bringing water, wastewater treatment, and other City - supplied
utility services and infrastructure to the Site and, subsectoo the limitations of
Section 10, the reasonable and necessary operational expenses of such services;
15. Public Nuisances. The Band Parties shall be responsible for ensuring that the
Resort operates in compliance with the following provisions of the City's
Municipal, Code: Sections 13- 57(a)- (b),13 -82, and 17 -8, as such sections exist at
the time of the execution of this Agreement as well as any amendments and /or
successor provisions to each. The Band Parties' agreement to comply with these
provisions shall be enforceable solely under the terms of this Agreement, but the
Band expressly does not subject itself to, or waive its sovereign immunity as to
any enforcement action undertaken pursuant to the foregoing provisions or other
provisions of the City's Municipal Code.
14. Payments in Lieu of Taxes to the City..
(a). The City, the Band, and PGA recognize that:
(1). When the Site is taken into trust, it will be removed from the property tax
rolls and thereafter neither the Band nor PGA shall be under any legal
obligation to make property tax payments for the Site;
(2) The City will experience increases in some operating costs as a direct
result of the operation of the Resort
(3). IGRA subsection 2710(b)(2)(B) strictly limits the use of net revenues
from tribal gaming, but expressly permits payments to, among other
things, help fund operations of local government agencies; and
(4). Establishing financial incentives to the City will encourage, promote and
contribute to the success of the Resort and will benefit both parties and the
region.
Based on those considerations, the City and the Band Parties have determined .
that it is in their mutual best interests to establish the requirements in this
Section 14 for the Band Parties to make payments in lieu of taxes ( "ILT
Payments ") to the City from revenue generated by the operation of Class II
Games at the Resort.
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(b). Definitions.
(1). As used in this Section 14, "Net Win" means the total amount wagered on
each Class 11 Game, minus the total amount of prizes paid to players for
winning wagers at such Class H Games. For purposes of calculating Net
Win, the total amount wagered shall not include the value of "Promotional
Wagers." The term "Promotional Wagers" shall include wagers made
using non- cashable vouchers, coupons, electronic credits or electronic
promotions provided by the Band or the PGA. The total amount of prizes
paid to players for winning wagers .at Class 11 Games shall include all
prizes, consisting of electronic credits to the Game, cash, check, or
merchandise from all wagers, including Promotional Wagers, The
formula prescribed here for calculating Not Win applies only to the
calculation of the payments due under this Agreement and is not intended
to preclude the Band from otherwise following accepted GAAP and
AICPA Guidelines in its—general accounting practices.
(2). As used in this Section 14, "Class 11 Games" means server based
electronic bingo system games that are within the JURA definition of
"class II gaming" (25 U.S.C. § 2703(7)(a) and 25 C.F.R. § 502.3) and
"Class 1H Games" means "slot machines" and "electronic or
electromechanical facsimiles of any game of chance" as those terms are
defined at 25 C.F.R. § 502.4(b). For avoidance of doubt, Class III Games
shall include slot machines and electronic or electromechanical facsimiles
of any game of chance located inside the Resort that are electronically
linked through one or more progressive jackpot systems, to other
electronic gaming devices or systems located anywhere inside or outside
the Resort for the purpose of generating larger jackpots. The terms Class
11 Games and Class III Games do not include any gaming activity that is
conducted through the world wide web or any other internet connection
wherein both the player and. the gaming or network hardware are not
present within the Resort.
(c). If requested by the City, the Band Parties shall permit a certified public
accounting firm ("CPA Firm") reasonably selected by the City to verify for
the ILT Payment period in question the Net Win at the Resort, provided that if
an Indiana Compact includes provisions for verifying the Net Win, then such
procedures shall be the exclusive method for verifying Net Win and this
subsection (c) shall not apply. The Band Parties shall fully cooperate with all
generally-accepted accounting procedures employed by the CPA Firm and
shall be responsible for paying one half (1/2) of the CPA Firm's fees and costs
associated with this Subsection 14(c).
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(d). Revenue'Sh aringfroin Class H Gaming. This Section exclusively addresses
ILT Payments and any other form of gaming revenue sharing by PGA with the
City from a Resort that cannot lawfully include` "Class III Gaming,?, as that
term is defined in subsection 270(8) of IGRA, due to the absence of: (i) a
Class III Gaming compact entered into between the Band and the :State of
Indiana that is approved by the Secretary of the Interior pursuant to the
requirements of subsection 2710(4)(8) of IGRA or (U) administrative
procedures for the conduct of Class III Gaming by the Band on.Indan lands
located in the State of Indiana that are prescribed by the Secretary of the
Interior pursuant to subsection (d)(7)(B)(vii) of IGItA (either such approved
compactor administrative procedures are referred to hereunder as "Indiana
compact").
(1). In furtherance of the determinations described above in subsection (a) to
help fund operations oflocal government agencies, and as consideration
for valuable concessions contained in this Agreement, the Band Parties
agree that PGA shall male an annual ILT Payment to the City comprised
of the following; (i) one percent (1 %) of the Net Win from Class II Games
at the Resort shall be paid directly to the City; and (ii) one percent (1 %) of
the Net Win from Class II Games at the Resort shall be paid directly to the
South Bend Redevelopment Commission ( "Redevelopment
Commission ") (each such ILT Payment made annually under this Section
14(d) or any payment of Net Win from Class III Gaming under Section
14(e) of this Agreement, an "Annual ILT Payment "). It is the parties'
mutual intent that the Redevelopment Commission use and direct the
Annual ILT Payment proceeds it receives from PGA pursuant to this
Section 14 to fund initiatives broadly aimed at contributing to the
improvement of educational opportunities in the City and to address
poverty and unemployment in the City.
(2). The Annual ILT Payments shall be based on a twelve -month fiscal period
beginning on August I and ending on July 31 of each year, provided that
the first Annual ILT Payment under this provision may be for a period of
less than twelve full months of operations beginning on the day the Resort
opens to the public through July 31 immediately subsequent thereto.
Annual ILT Payments shall be made within sixty (60) days of the end of
each fiscal period. Interest on any Annual ILT Payment made more than
sixty (60) days from the end of the fiscal period shall accrue at the annual
rate of three percent (3 %) on the unpaid balance due until paid in
frill. Any partial payments of the unpaid balance due shall first be applied
to accrued interest with the remainder, if any, next applied to the unpaid
balance.
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(3). Provided that the Resort was the only casino conducting gaming that is
substantially equivalent to "Class II Gaming % as that term is defined in
subsection 2703(7) of IGRA, or Class III Gaming within a twenty - five
(25) mile radius of the Resort, excluding any other casino that may be
operated by or on behalf of the Band or PGA, PGA guarantees that each
Amimil ILT Payment made to the City pursuant to this subsection (d) will
not be less than;
(A) ONE MILLION. DOLLARS '($1,000,000.00) if throughout the
Annual ILT Payment period., excluding events or circumstances
within PGA's control, .PGA had the physical infrastructure and
legal right to conduct gaming at the Resort at a minimum capacity
of not less than 850 Class II Games and not more than 1,699 Class,
II Games; or
(B) TWO .MILLION DOLLARS ($2,000,000:00) if throughout the
Annual ILT Payment period, excluding events or circumstances
within PGA's control, PGA had the physical infrastructure and
legal right to conduct gaming at the Resort at a minimum capacity
of not less than 1,700 Class II Games.
(e). Revenue Sharingftom Classlll Gaming, This Section exclusively addresses
revenue sharing by PGA with the City from a Resort that can lawfully conduct
Class III Gaming under an Indiana Compact;
(1). If the Band,, or any person or entity on its behalf, operates Class III
Gaming pursuant to an Indiana Compact and IGRA and the Indiana
Compact contains provisions for the use of net revenues from Class III
Gaming to help fund operations of City agencies (regardless of the
amount of such payments or method of control or distribution), then the
provisions .in the Indiana Compact that govern payments of such net
revenue to the City shall: (i) be applicable and control and shall supersede
the ILT Payment requirements for Class II Games in subsection (d) of this
Section 14; and (ii) except as expressed in Section 14(e)(2) of this
Agreement, PGA's obligations regarding payments of such net revenue to
the City shall be solely limited to those provided in the Indiana Compact.
(2). If the Band, or any person or, entity on its behalf, operates Class III
Gaming pursuant to an Indiana Compact and IGRA and the Indiana
Compact contains no provisions for the use of net revenues fiom Class III
Gaming to help fund operations of City agencies, or if such payments are
less than two percent (2 %) of the Net Win from Class III Games, then in
such case PGA shall, upon the City's request and subject to any
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prohibitions or limitations under IGRA or other applicable federal law,
make payments of net revenue from Class III Games under this
Agreement such that the total of the. payments made under this Agreement
and those made under the Indiana Compact equal two percent (20/fl) of the
Net Win from. Class III Games operated at the Resort. Except to the extent
that the Indiana Compact provides otherwise, such payments shall be
made in accordance with the standards and procedures in Section 14(4)
applicable to IL'I' Payments from Class Il Games.
(3). Provided that the Resort was the only casino conducting gaming that is
substantially equivalent to Class II Gaming or Class III Gaming within a
twenty -five (25) mile radius of the Resort, excluding any other casino that
may be operated by or on behalf of the Band or PGA, PGA guarantees
that each Annual ILT Payment made to the City pursuant to this
subsection (e) will not be less than.
(A) ONE MILLION DOLLARS ($1,000,000.00) if throughout the
Annual ILT Payment period, excluding events or circumstances
within PGA's control, PGA had the physical infrastructure and
legal right to conduct gaming at the Resort at a minimum capacity
of not less than 850 Class III Games and not more than 1,699
Class III Games; or
(B) TWO MILLION DOLLARS ($2,000,000.00) if throughout the
Annual ILT Payment period, excluding events or circumstances
within PGA's control, PGA had the physical infrastructure and
legal right to conduct gaming at the Resort at a minimum capacity
of not less than 1;700 Class III Games.
15. Community Development Initiatives. IGRA subsection 2710(b)(2)(B) strictly
limits the use of net revenues from tribal gaming, but expressly permits donations
to, among other things, charitable organizations. In consideration of the Band
Parties' and the City's mutual commitment to the health and welfare of the
residents of the South Bend area and as an additional incentive for the City to
fulfill its obligations under this Agreement, the Band Parties agree to: (i) fund the
initiatives described below in this Section in accordance with the terms stated
therein, and (ii) with respect to subsections (b) through 0) of this Section provide
the City with an annual report demonstrating the Band Parties' full compliance
with its obligations under each such subsection.
(a). Howard Park Improvements. The Band Parties shall contribute $2,225,000.00
to the City for the purpose of renovating, modernizing and malting other
improvements to Howard Park, located at 219 S. St. Louis Blvd. in South
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Bend,, which contribution shall be, paid over a period of five (5) years at
$445,000.00 per year, with the ,first payment duo twelve (12) months after the
Resort commences gaming operations,. The City shall use, the entirety of the
contributions made bythe Band Parties under this subsection (a) exclusively
for the express purposes stated herein. The City shall provide the Band parties
with an annual report demonstrating the City's full compliance with its
obligations under this subsection,
(b). Memorial Children',Y Hospital. The Band Parties shall contribute $500,000.00
to Memorial Children"s Hospital of South Bend for the renovation and
modernization of the Newborn Intensive Care Unit, (NICU), which
contribution shall be paid over a period iod of five (5)
years at $100,000.00 per
year with the first payment due twelve, (12) months after the Resort
commences gaming operations.
(c). Bowman Creek-Project, The Band Parties shall contribute $500,000.00 to the
Bowman Creel-, Project for initiatives intended to restore and protect the Creek
and educate the public regarding its importance to the region, which
contribution shall he paid over a period of five (5) years at $100,000.00 per
year with the first payment due twelve (12) months after the Resort
commences gaming operations. The use and purpose of each annual donation
shall be determined by the Band Parties in -consultation with the Bowman
Creek Project representatives designated by the City.
(d). South Bend Community Schools. The Band Parties shall donate $500,000.00
to the South Bend Community School Corporation, which donation shall be
paid over a period of five (5) years at $100,000.00 per year with the first
payment due twelve (12) months after the Resort commences gaming
operations. The use and purpose of each annual donation shall be determined
by the Band Patties in consultation with the Superintendent of the South Bend
Community -School Corporation.
(e). Prairie Avenue. Resurfacing. The Band Parties shall cover all costs to
resurface Prairie Avenue from US-31 to Locust Road, which costs, shall not
exceed $500,000.00 and shall be payable in accordance with the payment
requirements of a contract between INDOT and the contractor engaged to
perform the work.
(f). Prairie Avenue Landscaping. The Band Parties shall cover all costs to
enhance the landscape of Prairie Avenue within the public right-of-way from
US-31 to Locust Road, which costs shall not exceed $200,000.00 and shall be
payable in accordance with the payment requirements of a contract between
INDOT and the contractor engaged to perform the work.
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(g). YMCA Women's Shelter of South Bend. The Band Parties shall donate
$125,000.00 to the YMCA Woman's Shelter of South Bend, which donation
shall be paid over a period of five (5) years at $25,000.00 per year with the
first payment due twelve (12) months after the Resort commences gaming
operations.
(h). Jobs for Americas Graduateslndiana. The Band Parties shall donate
$250,000.00 to Jobs for America's Graduates — Indiana „which donation shall be
paid over a period of five (5) years at $50,000.000 per year with the first
payment due twelve (1.2) months after the Resort commences gaming
operations. The use and purpose of each annual donation shall be determined
by the Band Parties in consultation with JAG- Indiana.
(i). Food Bank ofNorthern Indiana. The Band. Parties shall donate $100,000.00
to the Food Bank of Northern Indiana, which donation shall be paid over a
period of five (5) years at $20,000.00 per year with the first payment due
twelve (12) months after the Resort commences gaming operations. The use
and purpose of each annual donation shall be determined by the Band Parties
in consultation with the Food Bank of Nor thorn Indiana.
Boys and Girls Clubs of St. Joseph County. The Band Parties shall donate
$100,000.00 to the Boys and Girls Clubs of St. Joseph County, which
donation shall be paid over a period of five (5) years at $20,000.00 per year
with the first payment due twelve (12) months after the Resort commences
gaming operations. The use and purpose . of each annual donation shall be
determined by the Band Parties in consultation with the Boys and Girls Clubs
of St. Joseph County.
lb. Term. The term of this Agreement ( "Term ") shall commence upon its full
execution, and shall continue in effect so long as the Band Parties, or any person
or entity on their behalf, develop the Resort and, after the Resort opens, so long as
the Band Parties, or any person or entity on their behalf, operate Class II Games or
Class III Games at the Resort; provided that the term shall not exceed 99 years.
17. Dispute Resolution. The Band, PGA, and the City agree that the dispute
resolution process set forth in this Section shall be the exclusive process available
to the parties to resolve Disputes. The parties agree that through this Dispute
resolution process, the parties shall be entitled to all forms of relief allowed by
Governing Law for breach of contract, as defined below, not otherwise prohibited
by this Agreement including, but not limited to, injunctive relief, specific
performance, and actual damages.
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(a). Negotiation. In. the event of a dispute between either or both, of the Band
Parties and the City that arises out of or is related to this Agreement, including
but not limited to, the validity, interpretation and/or enforcement of this
Agreement ( "Dispute "), the aggrievedparty shall, prior to pursuing mediation
or Arbitration, make a written request of the other party to engage in good
faith negotiations aimed at resolving the Dispute ( "Negotiations'). Upon
submission of such request, each party will promptly appoint one or more
representatives) to participate in direct discussions regarding the Dispute The
written request shall set forth, with specificity, the 'issues to be resolved. The
location, format, and frequency of these discussions shall be left to the
discretion of the representatives. Except to the extent "expressly provided
otherwise by applicable law, all discussions and. correspondence among the
representatives for purposes of the Negotiation shall be treated as confidential
and shall be inadmissible in any judicial proceeding or othear'dispute resolution
forum, including mediation or arbitration,, without the agreement of the
parties. If the parties are unable to fully resolve the Dispute within thirty (3 0)
days from the date either party submits a written request for Negotiation to the
other party, or either party terminates the Negotiation before all of the
elements of the Dispute are resolved, or the parties agree in. writing to forego
Negotiation, the Dispute, or any unresolved portion thereof, shall be submitted
to Mediation..
(b). Mediation. If a Dispute is not resolved through Negotiation, the Band Parties
and the City shall submit the Dispute to nonbinding mediation ( "Mediation ")
before a single mediator ( "Mediator ") prior to initiating Arbitration. The
Mediation shall be administered by the American Arbitration Association
( "AW) under its Commercial Arbitration Rules and Mediation Procedures
or any successor rules adopted by the AAA ('Rules' ), current as of the date
the request for Mediation is filed with the AAA. The Mediation shall be
commenced by either party filing a request for mediation with the AAA in
accordance with the Rules. The Mediator shall be selected pursuant to the
Rules. The Mediation shall take place in South Bend, Indiana, unless the
patties agree in writing to a different location. The responsibility for the fees
and expenses of the Mediation and the Mediator shall be allocated equally
between the City and the Band Parties. The Mediation may be terminated at
any time by either party. If the Band Parties and the City are unable to fully
resolve the Dispute within sixty (60) days from the date the request for
Mediation is filed with the AAA, unless the parties agree to extend the time
for Mediation, either party may initiate Arbitration to resolve the Dispute, or
any unresolved portion thereof.
(c). Arbitration. If the Dispute is not resolved through Negotiation or Mediation,
the Band Parties and the City shall submit the Dispute to arbitration
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('Arbitration"), pursuant to this Agreement, which shall be commenced by
either her party filing a demand for Arbitration with the AAA in accordance with
the Rules. The Band Pat-ties and the City agree to avoid all unnecessary
delays and expenses in Arbitration and to pursue in good faith a prompt and
just resolution of their Dispute. The Arbitration shall occur within thirty (30)
miles of I South Bend, Indiana unless the parties, agree in writing to a different
location, Each party shall bear its own Arbitration costs and an equal share of
the,administrittive cost of the Arbitration proceeding pendinga final resolution,
of the Dispute. The following requirements shall apply to the Arbitration
process:
(1). Selection of Neutral Arbitrators., Arbitration shall occur before a panel of
three (3) neutral arbitrators ("Arbitrators"), unless the parties agree in
writing, prior to commencing the arbitrator selection process to use a.
single neutral. arbitrator. Each Arbitrator shall be a licensed attorney or a
retired judge who has been actively engaged for at least ten years in the
practice of law, the judicial process, or in alternative dispute resolution:
Unless the patties agree otherwise in writing, an Arbitrator shall not have
also served as a Mediator in any Mediation under this Section. No
Arbitrator shall have or Previously have had any significant relationship
with either party. If the Arbitration will be held before a single neutral
Arbitrator, the Arbitrator shall be selected by agreement of the parties
within thirty (3 0) calendar days from the date a demand for arbitration is
filed with the AAA. If the parties are unable to agree on the selection of
an Arbitrator within thirty (30) calendar days, the Arbitrator shall be
selected -according to the process set forth in the Rules. If the Arbitration
is held before a panel of three neutral Arbitrators, each party shall select a
single Arbitrator within fifteen (15) calendar days from the date the
demand for Arbitration is filed with the AAA. The two Arbitrators
selected by the parties shall select the third Arbitrator with due
consideration to any recommendations made jointly by the patties. The
third, Arbitrator shall be the chairperson of the panel. If all three
Arbitrators have not been selected within thirty (30) calendar days from
the date the demand for Arbitration is filed with the AAA, the panel of
three Arbitrators shall be selected according to the process set forth in the
Rules.
(2). Arbitration Rules, Governing Law, and the Authority of the Arbitrators.
The Arbitration shall be administered by the AAA under the requirements
of this Section and the Rules, current as of the date the demand for
Arbitration is filed with the AAA. The parties and the arbitrator(s) shall
maintain strict confidentiality with respect to the arbitration. The
requirements of this Section shall supersede any conflicting provisions in
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the Rules. The law to be applied in the Arbitration shall be the, Governing
Law, as stated in subsection 18(a) of this Agreement. The authority of the
Arbitrators is derived solely from this Section and is limited to the
enforcement of the rights of the Band Parties and the City under the
express terms of this Agreement..
(3). Discovery and Arbitration Procedure. Each party shall, upon the request
of the other party, promptly provide the other with copies of all
documents relevant to the issues raised as claims or defenses in the
Arbitration. Notwithstanding any provision of Governing Law or Rule to
the contrary, any party may avail itself of discovery procedures, including
depositions, interrogatories, requests for production and inspection of
documents and reports as provided in the Federal Rules of Civil Procedure
then applicable in United States district courts. Discovery shall be
completed within sixty (60) days from the date the Arbitrators are
appointed, provided that at either party's request, the Arbitrators may
order reasonable extensions of the time for discovery, but only to the
extent that the Arbitrators determine that such discovery will be relevant,
will not unduly burden the party against whom discovery is sought, and
will further the goal of resolving the Dispute in an economic and
expeditious manner. The parties shall have a continuing obligation to
provide each other with all additional relevant documents and information
within the scope of the discovery request that may thereafter become
available. The Arbitrators may, at the request of a party or on their own
initiative, impose upon any party who fails to comply with this subsection
sanctions, penalties, or both, including an order that prohibits the non -
complying party from introducing certain testimony or evidence or
eliminates one or more claims or defenses of the non - complying party.
(4). Statement of Claims. At least sixty (60) calendar days prior to the date of
the first hearing on the merits, each party shall provide to the other party a
detailed written statement of all claims, defenses, and counterclaims such
party will present at the hearing and the witnesses, documents, and other
evidence such party intends to offer in support each claim, defense, and
counterclaim. Each party shall have seven (7) calendar days to serve on
the other party a request for explanation of claims, defenses and
counterclaims made and further identification of supporting evidence
intended to be offered. Responses to requests for explanation of claims,
defenses and counterclaims shall be served on the requesting party within
ten (10) calendar days from the date such request is received.
(5). Arbitration Award. The Arbitrators shall issue a well - reasoned written
decision with findings of fact, conclusions of law, and a calculation of
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how damages, if any, were determined. The Arbitrators shall have no
authority to award consequential, punitive, or other damages not measured
by the prevailing party's actual damages. The Arbitrators may assess 'the
costs of the Arbitration, excluding attorneys' fees, against a party or
among the parties in such amount or amounts as the Arbitrators deems
just', provided that such assessment, bears a reasonable relationship to the
relative fault of the parties stated in the final decision. The Arbitration
award shall be final and binding upon the parties and shall be subject to
judicial enforcement in accordance with the terms of this Agreement and
Governing-Law.
(d). Judicial Action. Judicial actions under this Agreement shall be limited to
actions to enforce (1) the agreement to arbitrate contained in this Agreement,
(2) any interim order issued by the Arbitrators, including any grant of
injunctive relief or order for specific performance, and (3) any Arbitration
award or decision, (collectively, "Judicial Actions"). A Judicial Action may
onl y be brought in: (1) the United States District Court for the Northern
District of Indiana, the United States Court of Appeals for the Seventh Circuit,
and the United States Supreme Court, and (2) if the United States District
Court lacks jurisdiction, a Judicial Action may be brought in the Indiana State
Court system (collectively, "Courts of Competent Jurisdiction").The Bland
appoints the Chairman of the Pokagon Band Tribal Council and General
Counsel for the Band as its agents for service of all process under or relating
to this Agreement. PGA appoints the President and CEO of PGA and General
Counsel for PGA as its agents for service of all process under or relating to
this Agreement. The Band Parties agree that service in hand or by certified
mail, return receipt requested, shall be effective for all purposes under or
relating to this Agreement if served on such agents.
(e). Limited Waiver of Sovereign Immunity. The Band Parties expressly waive
their sovereign immunity fi-orn suit and consent to be sued for any Judicial
Action in any of the Courts of Competent Jurisdiction. The Band Parties
waive any requirement of exhaustion of tribal remedies.
(f). Limited Recourse. The liability of the Band Parties under this Agreement
shall always be payable solely from undistributed or future Revenues of PGA
as governed by the Pokagon Band Revenue Allocation Plan ( "RAP ",) enacted
on January 21, 2012 and approved by the U.S. Secretary of the Interior
( "Secretary ") on June 8, 2012, or any subsequent version of the RAP that is
from time to time lawfully approved by the Secretary. Without in any way
limiting the foregoing, the Band Parties expressly authorize any governmental
authorities who have the right and duty under Governing Law to take actions
authorized or ordered by any such court to give effect, subject to such limited
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recourse, to any judgment entered; provided, however, that liability of the
Band Parties under any judgment shall always be payable solely from
undistributed or future Revenues of PGA as described in this subsection, and
in no instance shall any enforcement of any kind whatsoever be allowed
against any assets of the Band. For purposes of this Section, "Revenues" shall
mean: (a) the gross gaming revenue (win) of PGA from Class II Gaming or
Class III Gaming, plus the gross revenues of PGA from all other sources in
support of Class II Gaming or Class III Gaming, including but not limited to
food and beverage, entertainment and retail, and any hotel; less (b) all
amounts paid out as, or paid for, prizes, all operating expenses, amortization
and depreciation, in each case determined in accordance with generally
accepted accounting principles.
(g). Limitations Period to :Commence Dispute Resolution. No claim included
within the definition of Dispute or the definition of Judicial Action under this
Agreement maybe commenced by any party more than four (4) years from
the date the aggrieved party has knowledge, or reasonably should have
knowledge, of the facts or circumstances giving rise to the Dispute, provided
that the applicable statute(s) of limitation under Governing Law shall be tolled
and any requirement under such statute(s) regarding a notice of claim with
respect to the Dispute shall be suspended for the duration of any, Negotiation,
Mediation, and Arbitration.
18. Miscellaneous.
(a). Governing Law. This Agreement shall be deemed entered into in Indiana and
shall be subject to the laws of the State of Indiana and. any applicable federal
laws ( "Governing Law ").
(b). Notice. Any notice required to be given pursuant to this Agreement shall be
delivered to the appropriate party by Certified Mail Return Receipt Requested,
or by overnight mail or courier service, to the following addresses:
If to the Band:
Pokagon Band of Potawatomi Indians
58620 Sink Road
Dowagiac, MI 49047
Attn: Chairman, Tribal Council
with a copy to:
Pokagon Band of Potawatomi Indians
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58620 Sink Road:
Dowagiac, MI 49.047
Attn: Office of General Counsel
and. o
Robert Gips
Drummond, Woodsum, MacVlahon
84 Marginal Way, Suite 600
Portland, ME 04101- 2480
If to the City:
Mayor of South Bend
227 W. Jefferson Blvd., Ste. 1400 N
South Bend, Indiana 46601
with a copy to
Corporation Counsel
City of South Bend
227 W. Jefferson Blvd., Ste. 1200
South Bend, Indiana 46601
And to
Joe Champion
Bingham Greenbaum Doll LLP
2700 Market Tower
10 West Market Street
Indianapolis, Indiana 46204
A party may designate a different address for notification under this
subsection by notifying the other parties of such change in writing.
(c). Further Actions. Each party agrees to execute all documents and to take all
actions reasonably necessary to comply with the provisions of this Agreement
and its intent.
(d). Waivers. No failure or delay by a party to insist upon the strict performance
of any covenant, agreement, term or condition of this Agreement, or to
exercise any right or remedy upon the breach thereof, shall constitute a waiver
of any such breach or any subsequent breach of such covenant, agreement,
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term or condition. No covenant, agreement, term, or condition of this
Agreement and'no breach thereof shall be waived, altered or modified except
by written instrument.
(e) Captions. The captions for each section and subsection are intended for
convenlence only.
(f) Seyerability. if any provision, Oran portion of any provision, of this
Agreement is found to be invalid or unenforceable, such unenforceable
provision, or unenforceable portion of such provision,, shall be deemed
severed from the remainder of this Agreement and shall not cause the
remainder of this Agreement, to be 'invalid or unenforceable. If anyprovision,,
or any portion. of any provision, of this Agreement is deemed invalid due to its
scope or Breadth, such provision shall be deemed valid to the extent of the
scope or Breadth permitted by law♦
(g) Third Pai-iy Beneficiary. This Agreement is exclusively for the benefit of the
parties hereto. It may not be enforced by any party other than the parties to
this Agreement; and shall not give vise to liability to any third. party.
(h) Successors and Assigns. The benefits and obligations of this Agreement shall
inure to and be Minding upon the parties hereto and their respective successors
and assigns. The parties cannot assign their rights or obligations under this
Agreement except with the written consent of the other parties, except that the
PGA may, without, the consent of the City, assign this Agreement to an
instrumentality of the Band organized to conduct the business of the Resort for
the Band if that'
nstrumentality assumes all obligations of the PGA. No such
assignment shall relieve the Band of any obligation under this Agreement,
unless otherwise agreed by the City.
(i) Modification. Any change to or modification of this Agreement must be in
writing signed by the parties to this Agreement.
(j) Entire Agreement. This Agreement contains the entire understanding and
agreement of the parties hereto and supersedes all other prior agreements and
understandings, written or oral between the parties. There are no oral
agreements.
(k) Preparation of Agreement. This Agreement was drafted and entered into after
careful review and upon the advice of competent counsel; it shall not be
construed more strongly for or against any party.
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(1) Execution. This Agreement may be executed in counterparts, all of which
taken together shall constitute one document.
(m) Authorization. Each person signing on behalf of the Band, the PGA and the
City represents and warrants that he or she is duly authorized to do so and that
the consent to enforcement and jurisdiction by Courts of Competent
Jurisdiction referenced in Section 17 of this Agreement has been authorized in
accordance with all legal requirements applicable to each such party to this
Agreement.
THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT `BLANK
Page 21 of 22
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Pokagon Band of Potawatomi Indians
By:
A lien, Tribal Council Chairman
By
MarVX61sh, Tribal Council Secretary
Authority'
`s
By:
Mar rash, Board Secretary
City of South Bend
Pete Buttigieg, Mayor
By:
Tim Scott, Common Council President
I
City Clerk
Page 22 of
F1e+d in Cle k' ce
MAR 2 3 2016
KAREEAMAH FOWLER
CITY CLERK, SOUTH SEND, IN
I-D M
Description of the Site
Exhibit A is comprised of the recorded, deeds for each of the eighteen (18) parcels of land that
comprise the Site.
Exhibit B -2
!1
Resolution of the Pokagom Gaming Authority Board of Directors
WHEREAS: The Pokagon Gaming Authority is a wholly-owned
unincorporated instrumentality of the Pokagon Band of
Potawatoml Indians of Michigan "and Indiana (a sovereign,
federally- recognized Indian tribe organized under a constitution
adopted on November 1, 2005); and
WHEREAS: The Pokagon Gaming Authority (the "Authority") was
chartered by the Pokagon Band Tribal Co'uncil through
enactment of the Pokagon Gaming Authority Ordinance on May
25,2006;and
WHEREAS: : In accordance with Article IX, Section 2, of the Pokagon Band
Constitution and pursuant to Section VIII of the Pokagon
Gaming Authority Ordinance (the "Charter"), the Pokagon
Gaming Authority Board of Directors is the duly recognized
governing body of the Authority; and
WHEREAS: The Authority Board of Directors is authorized pursuant to
subsection VI (C)(v) of the Charter to "make and enter into
contracts in furtherance of the Gaming Business" and, pursuant
to subsection VIII (C) of the Charter, is "delegated the power to
manage and control the business, property and affairs of the
Authority"; and
WHEREAS: The Pokagon Band acquired approximately 166 contiguous
acres of land located within the City of South Bend (the "City")
and bounded by Prairie Avenue (State Road 23), U.S. Highway
31, and Locust Road (the "Site") and on or about May 14, 2012,
as provided in Section 6 of the Pokagon Restoration Act, 25
U.S.C. § 1300j-5, the Band filed an application with the U.S.
Department of the Interior, Bureau of Indian Affairs, to have the
A proud, compassionate people committed to strengthening our sovereign nation.
A progressive community focused on culture and the most innovative opportunities, for all of our citizens,
Secretary of the Interior take title to the Site in trust for the
PokagQn Band of Potawatomi Indians, Michigan and Indiana;
and
WHEREAS: The Pokagon Band's and the Authority's plans and
foreseeable development for the Site include a tribal village with
44 housing units and a multi-purpose facility with health service.
and other tribal government facilities and, in accordance with
Pokagon Band, law and the Indian Gaming Regulatory Act of
1988,P.L. 100-497, 25 U.S.C. § 2701 et seq., planned and
foreseeable development of the Site also includes a casino
gaming facility; and
WHEREAS: Pokagon Band and Authority representatives have been
negotiating with City representatives concerning the terms of a
local agreement (the "Local Agreement") to address matters of
mutual concern regarding the Site and planned and foreseeable
development for the Site; and
WHEREAS: The purpose of the Local Agreement is to establish and
memorialize the various and beneficial commitments that the
Pokagon Band, the Authority, and the City have made to each
other out of recognition and respect for the sovereignty and
mutual best interests of each party; and
WHEREAS: The Authority Board of Directors ("Board") has reviewed ed the
Local Agreement and has concluded that the Local Agreement
is in the best interests of the Authority and will further the
Authority's long term interests and objectives.
NOW, THEREFORE, BE IT RESOLVED that the Board approves the Local
Agreement attached hereto and made a part of the record of this Board
session and authorizes the President/CEO and the Board Secretary to
execute the Local Agreement, substantially identical to the attached Local
Agreement, on behalf of the Authority; and
BE IT FURTHER RESOLVED that, as provided in Section 17 of the Local
Agreement and subject to all conditions and limitations stated therein, the
Board agrees to participate in any Mediation process and any Arbitration
procedure commenced under the Local Agreement; and
BE IT FURTHER RESOLVED that, as provided in Section 17 of the Local
Agreement and subject to all conditions and limitations stated therein and
in this resolution, the Board (i) approves, authorizes and confirms in
accordance With the Poklagon Band Constitution and ehacted.Pokagon
Band law the limited waiver of the Authority's tribal sovereign immunity
from suit, (ii) consents to be sued for any Judicial Action in any of the
Courts of Competent Jurisdiction, and (iii) waives any requirement of
exhaustion of tribal remedies; and
BE IT FURTHER RESOLVED that, as provided in Section 16 of the Local
Agreement and subject to all conditions and limitations stated therein and
in this resolution, the Local Agreement and the limited waiver of the
Authority's . tribal sovereign immunity shall become effective upon the
commencement of the Term of the Local Agreement and shall continue in
effect during the Term so long as the Local Agreement remains
enforceable against the City.
CERTIFICATION
We do hereby certify that the foregoing Resolution was
presented and voted upon with a quorum present at a duly
convened meeting of the Board of Directors held on the 10th
day of March, 2016 by a vote of 11 in favor, 0 opposed, 0
absent, and 0 abstaining.
Warren
President and CEO
I i1
Mark Parrish
Secretary
Filed in Clerk's Office
MAR 2 3 2016
KAREEMAH FOWLER
CITY CLERK, SOUTH BEND, IN
j
This Agreement is made on the �` day of March, 2016 by and between the
POKAGON BAND OF POTA.WATOMI INDIANS (the `Band "), the POKAGON
GAMING AUTHORITY, an unincorporated instrumentality of the Band ( "PGA "), and
the CITY OF SOUTH BEND, a municipal corporation existing under the laws of Indiana
(the "City ").
A. Concurrently with their approval of this Agreement, the Band Parties and
the City are entering into a separate "Local Agreement" concerning the intended
development by the Band of a Tribal Village and the development by PGA of a Resort on
an approximately 166 -acre site located within the City, which planned development as
well as foreseeable but as yet unplanned development will require water service and
sewer service.
B. On or about May 14, 2012, as provided in 25 U.S.C. §§ 1300j et seq. (the
"Restoration Act "), the Band filed an application with the U.S. Department of the
Interior; Bureau of Indian Affairs to have the Secretary of the Interior take title to the Site
in trust for the Pokagon Band of Potawatomi Indians, Michigan and Indiana.
C. The City owns; operates and maintains a water supply system, including a
filtration plant, storage and transmission facilities, and pumping stations, and furnishes
filtered and treated water to customers. The City also owns, operates and maintains a
complete sanitary sewer system, including a treatment plant, pump stations, lift stations,
and sewer mains, and collects and treats wastewater from customers.
D. While the parties recognize that the Band Parties have the right and the
ability to create a private water system and a private sewer system on the Site, the Band
Parties and the City desire to extend City water services and sewer services to the Site for
the Initial Phase and Full Build -Out Phase of development and to establish terms and
conditions for upgrading and improving the systems that supply those services when the
need arises, as determined by the City's standards and the obligations set forth in this
Agreement. An engineer's drawing showing the layouts for the Initial Phase and Full
Build -Out Phase of the water system and sewer system that will serve the Site is attached
hereto as Exhibit A.
E. The City desires that the water system extension and the sewer system
extension described in this Agreement be designed and constructed in a manner that will
serve the City's plans for expanding services to future customers and the Band Parties
share the City's desire and wish to assist the City in fulfilling its goal under the terms and
conditions of this Agreement.
F. The City recognizes that representations -and obligations made by the Band
Parties under this Agreement are voluntary and are not required by any federal or state
law.
G. The City represents that it is authorized to enter into this Agreement by a
duly adopted resolution of the Board of Public Works', a true copy of which is attached as
Exhibit B -1. -
H. The Band represents that it is authorized to enter into this Agreement by a
duly adopted resolution of the Band Tribal Council, a true copy of which is attached as
Exhibit B-2.
I., PGA represents that it is authorized to enter into this Agreement by a duly
adopted resolution of the Pokagon Gaining Authority Board of Directors, a true copy of
which is attached as Exhibit B -3.
OW, THEREFORE, in consideration of the obligations, terms and conditions
contained herein, the adequacy of which the parties expressly acknowledge, the Band,
PGA, and the City agree as follows:
1: Recitals true. The above recitals are true.
2. Definitions. The following terms, whenever used or referred to in this Agreement,
shall have the respective meanings stated below:
(a). "Agreement" means this Water and Sewer Service Agreement.
(b). "Band" means the Pokagon Band of Potawatomi Indians, a sovereign
federally- recognized Indian tribe, as reaffirmed in the Pokagon Restoration
Act of 1994, 25 U.S.C. §§ 1300j et seq.
(c). "Band Parties" means the Band and PGA and "Band Party" means either the
Band or PGA.
(d). "Calvert Street Lift Station" means the sewer system lift station located at or
near the intersection of W. Calvert Street and Renewable Road.
(e). "City" means the City of South Bend, a municipal corporation existing under
the laws of Indiana.
(f). "]Extension" means the water system extension and /or the sewer system
extension as described in Section 4, Section 5, and Exhibit A of this
Agreement.
Page 2 of 16
(g). "Full Build-Out Phase" means the phase of on -site and off -site development
of the water system and sewer system with a scope and design described more
fully in Section 4 and Exhibit A of this Agreement, which will serve the needs
of the Site after the Full -Build -Out Threshold is met.
(h). "Full Build -(hut Threshold" means that, due 'to projected increases in the
demands on the system from planned development of the Site, the total use of
the sewer system by all customers on the Site will exceed a threshold of 190
gallons per minute ( "gpm ") discharged to the Locust Road gravity sewer.
Under normal conditions, the lift station located on the Site will operate one
pump at a time with a maximum individual pump capacity of '180 gpm. The
Full Build -Out Threshold shall be considered exceeded when the flow meter
installed at the lift station located on the Site measures a flow rate in excess of
190 gpm more than three times in any month.
(i). "Initial Phase" means the phase of on -site and off -site development of the
water system and sewer system with a scope and design described more fully
in Section 4 and Exhibit A of this Agreement, which will serve the needs of
the Site until the Full Build -Out Threshold is reached.
"Local Agreement" means the agreement titled "Local Agreement ", which is
being entered into between the Band Parties and the City concurrently with
their approval of this Agreement and that concerns the Band Parties' intended
development on the Site of a "Tribal Village" and a "Resort ", as those terms
are defined in the Local Agreement.
W. "PGA" means the Pokagon Gaming Authority, an unincorporated
governmental instrumentality of the Band.
(1). "Residential Site Customer" means a Site Customer who is not a Band Party
and receives water and sewer services to a residential location on the Site.
(m). "Resort" means a casino gaming resort facility proposed to be developed on
the Site, as show on Exhibit A.
(n). "Site" means the approximately 166 acre site of land described in Exhibit A to
the Local Agreement. The term Site also includes any other real property that
is owned by the Band, including its agencies, instrumentalities, and
enterprises, at the time this Agreement is entered into or in the future, will be
served by the portion of the Extension located on the Site, and is located
contiguous to:
(1). the Site boundaries, notwithstanding any easements or right- of-way
running between such real property and the Site, or
(2). other real property owned by the Band that is contiguous to the Site
boundaries.
(o) "Site Customer" means a customer, including an individual residential
customer, that receives from the City water services and/or sewer services
from a connection or discharge point located on the Site.
3. Water System and Sewer System Service Requirements.
(a). All Site Customers shall become customers of the City water system and
sewer systern and each Site Customer shall be individually and solely
responsible for the payment of charges for the 'water services and sewer
services such Site Customer receives from the City.
(b). Except as expressly provided otherwise in this Agreement, the City shall
provide water service and sewer service to Site Customers under the same
terms and conditions, as amended from time to time, as the City provides such
services to its other customers located within the City.
(c). All charges and fees for water and sewer service provided by the City to Site
Customers shall be in accordance with the City's water tariff, as approved by
the Indiana Utility Regulatory Commission ( "IURC ") from time to time; the
City's sewer tariff as adopted by the Common Council; and the City's
ordinances as applicable to water and sewer service; provided that under the
City's 'water tariff and sewer tariff the Site shall be considered to be within the
City and the Site Customers shall not be part of any special rate category that
imposes rates that are higher than rates paid by other City customers for
substantially similar uses.
(d). 'Provided there are no cross connections with City water, the Band Parties
reserve the right to use one or more onsite wells for irrigation purposes and,
regardless of the water source for such irrigation purposes, the City shall not
include charges for sewer services when billing for water service for irrigation
uses by Site Customers who are Band Parties.
4. Description of Water System and Sewer System Improvements.
(a). Initial Phase.
(1). Water Extension.
(A) Extend a 12", water main and services, including valves, hydrants,
and fittings, from the existing main on Locust Road through the
residential development on the Site to the hydrants and utility
building located on the Site with tees and valves to extend and loop
the water main offsite under US -31 and to Prairie Avenue to
accommodate future off -site need;
(B) Design and construct the system to City, State, and any other
applicable regulatory standards, including hydrants, and valves; and
(C) Include individual meters for all potable uses on the Site, including
each residential unit, and for all irrigation uses, whether such potable
and irrigation uses currently exist on the Site or will be developed in
the future.
(2). Sewer Extension.
(A) Install gravity sewers from existing and proposed development on
the Site to a central lift station to be located on the Site near the
detention basin, which lift station will discharge wastewater through
a forcemain to the existing sewer on Locust Road and shall have a
back -up power supply;
(B) Install a section of 24" trunkline sewer from the truck dock area of
the proposed casino development to the lift station on the Site, which
will serve as a future trunkline; and
(C) Construct the system in accordance with City, IDEM, and any other
applicable regulatory standards, including a backup power supply
and bypass pump connections.
(b). Full Build -Out Phase.
(1). Water Extension. In the interest of increasing the reliability of the water
system and depending on the needs for water in the area of the Site when
the Full Build -Out Threshold is met or at another earlier time if mutually
agreeable to the Band Parties and the City, the parties, pursuant to the
terms herein agree as follows:
(A) To loop the watermain located on the Site around the Resort to
connect to the low- pressure system at Prairie Avenue or, in the
Page 5 of 16
alternative at the Band Parties' sole discretion, complete the loop
that is located off the Site; and
(B) To bore and jack to install a 12" diameter waterline Extension from
the Site boundary south under US -31
(2). Sewer Extension. The Band Parties agree to abandon the existing lift
station and forcemain located on the Site and extend, at the Band Parties'
cost, the trunkline sewer from the lift station located on the Site north
under Prairie Avenue to the Calvert Street Lift Station.
S'. Band Parties Obligations. The Band Parties shall 'fulfill the following obligations
regarding water system and sewer system services and improvements:
(a). At the Band Parties' cost, design, apply for City and State permits required by
law, and construct the .Extension for the Initial Phase improvements to the
water system and sewer system located on the Site.
(b). Provide all design plans for the Initial Phase improvements and the Full
Build -Out Phase improvements to the City. The design plans will be prepared
at the Band Parties' expense by an engineering firm that meets all Indiana
professional registration and licensing requirements. The design plans will be
performed in accordance with the City's standards and specifications and
must be submitted and approved by the City, the applicable regulatory
agencies, and other governmental bodies prior to construction.
(c). In order to allow the system improvements located on Site to serve adjacent
property owners in the future, the Band Parties shall, upon completion of the
Initial Phase, convey an easement, not less than thirty (30) feet, and dedicate
to the City within such easement all water system and sewer system
improvements located on the Site, including the gravity sewer, forcemain, and
lift station. Upon completion of the Full Build -Out Phase, the Band Parties
shall also convey an easement and dedicate to the City within such easement
all water system and sewer system improvements related to the Full Build -out
Phase located on the Site provided, however, that at the Band Parties'
discretion and to the extent feasible the Band Parties may, upon the written
consent of the City, convey such easement to the City prior to the date of
completion of the Full Build -Out Phase improvements. Prior to dedicating the
Initial Phase and Full Build -Out Phase improvements to the City, the Band
Parties shall be responsible for all maintenance and repairs to the
improvements and shall be responsible for all costs related to such
maintenance and repairs. Accordingly, the Band Parties must present the City
Page 6 of 16
with a three (3) year maintenance bond from the contractor that installed the
improvements effective the date of dedication to the City.
(d). Ilse their best efforts to acquire at market value an easement or easements in
the City's name from one or more property owners located adjacent to the Site
on the north side of Prairie Avenue in order to permit the installation of a 36"
sewer trunkline Extension from the Site to the Calvert Street Lift Station.
(e). Contribute $400,000 to the City to assist with the cost of replacement and
upgrading the Calvert Street Lift Station, which contribution shall be made by
the Band within fifteen (15) days from the date the City issues a notice to
proceed to a contractor engaged by the City to perform the , work.
(f). Within eighteen (18) ,months, or twenty -four (24) months in the event of
delays not within the Band Parties' control, from the date that the Full Build
Out Threshold is reached, at the Band Parties' cost, design, obtain all City,
State or other regulatory permits required by law, and construct the Full Build -
Out Phase improvements to the water system and sewer system located off the
Site. Such improvements are limited to the following:
(1). Loop the watermain located on the Site around the Resort to connect to
the low- pressure water supply system at Prairie Avenue or, in the
alternative at the Band Parties' sole discretion, complete the loop that is
located off the Site;
(2). Bore and jack to install a 24" diameter sewer trunkline Extension from the
Site Boundary north under Prairie Avenue;
(3). Install a 36" diameter sewer trunkline Extension from Prairie Avenue
along an easement to be acquired and continuing through an existing
easement to the Calvert Street Lift Station;
(4). During the 18 -month build out, the discharge from the lift station cannot
exceed 225 gpm due to the existing capacity of the Locust Road sewer
main; and
(g). Pay charges for water services and sewer services provided by the City to Site
Customers who are Band Parties in accordance with the charges in effect at
that time as specified by the City's IURC- approved water tariff, the City's
sewer tariff and the City's ordinances, subject to the qualifications stated in
paragraph 3(c) of this Agreement.
Page 7 of 16
(h). During construction of the public portions of the water and sewer Extension
located on the Site and until dedication to the City in accordance with the
terms of this Agreement, carry and maintain comprehensive general 'liability
and casualty insurance with regard to bodily injury, sickness, disease or death,
and damage to or destruction of tangible property, including the loss of use
resulting therefrom, for which the Band Parties may be liable, including, but
not limited to damages, costs, claims, and expenses arising from or directly
related to the public portions of the water and sewer Extension located on the
Site. Such insurance shall, at a minimum, be in amounts equal to cover the
repair and fall replacement of the public portion of either the Initial Phase or
the Full Build -Out Phase of the water and sewer Extension located on the Site
depending on which phase is being constructed.
6. City Obligations. The City shall fulfill the following obligations regarding water
system services and sewer system services and improvements:
(a). Review and approve in a timely and expeditious manner pursuant to
applicable law and regulation and in accordance with the City's standards and
specifications all design plans submitted by a Band Party to the City regarding
upgrades and extensions of the water system and sewer system, and any
approvals and permits required from the City shall not be unreasonably
withheld.
(b). Conduct inspections and testing during construction of the Initial Phase and
Full Build -Out Phase improvements. The inspections and testing will be done
as necessary in order to ensure compliance with the design, plans and the
City's standards and specifications. The Band Parties and the City shall
endeavor in good faith to reach agreement regarding the selection of a
qualified firm to conduct the inspections and testing, which will be done at the
Band Parties' expense.
(c). Within six (6) months prior to dedication of the Initial Phase and Full Build -
Out Phase improvements from the Band Parties to the City, a final inspection
will be conducted by the City at the City's expense. The City shall provide a
copy of the results of such inspection along with a list of defects, if any, the
Band Parties must rectify prior to dedicating the improvements to the City._
Any defects reported shall be repaired by the Band Parties at their sole
expense prior to dedication.
(d). Provide water services and sewer services to the Site and all current and future
Site Customers in the full capacities of the systems.
Page 8 of 16
(e). Upon assurances that all good faith efforts were exhausted and receipt of
written notice from the Band Parties that they were unable to acquire the
easements described in subsection 5(c) of this Agreement, the City shall
acquire, by purchase or condemnation, all such easements as may be
necessary for the construction of the sewer trunkline Extension provided,
however; that the Band Parties shall reimburse the City for their reasonable
costs, including legal costs, in acquiring such easements; at either the cost of
any easement voluntarily obtained after notice and approval to the Band
Parties, which approval shall not be unreasonably withheld, or the cost of any
easement obtained through condemnation or eminent domain.
(f). Within eighteen (18) months from the date that the Full Build -Out Threshold
is reached, design and complete construction of the replacement and upgrade
to the Calvert Street Lift Station, and all costs for such improvements over and
above the $400,000 contribution due from the. Band Parties under paragraph
5(d) of this Agreement shall be paid by the City.
(g). Accept the dedication of, and operate the public portions of the water system
and sewer system located on the Site, including the lift station, in accordance
with all applicable laws and regulations in the same manner as the City
operates the parts of such systems that are located off the Site, which
obligation includes at the City's sole expense the provision of electrical, gas,
telephone, diesel fuel, and other energy and support services needed for the
operation of such systems.
(h). Rebate to the Band Parties all amounts the City receives from —
(1). Subsequent connector charges and assessment fees paid by customers for
non- mainline connections that connect to a trunkline sewer Extension or a
water supply Extension directly extending from the Site but located off
the Site if such Extension was paid for entirely by the Band Parties.
(i). Maintain, repair, and replace the public portion of the water system and sewer
system improvements located on the Site as needed in order to ensure the full
and reliable function of such systems and their components, consistent with
the City's standards and practices for the parts of such systems that are located
off the Site. The public portion of the water and sewer Extension is described
in Exhibit C -1, Exhibit C -2, and Exhibit C -3 attached and incorporated hereto.
Read the meters and directly bill each Site Customer for water services and
sewer services and the due date for payment of such bills shall be consistent
with the due dates that apply to the City's customers located off the Site;
Page 9 of 16
(k }. Assist and cooperate with the Band Parties in their effort to obtain any
necessary approvals and permits from the Indiana Department of
Environmental Management and any other state or local agencies needed to
construct the upgrades and extensions of the water system and the sewer
system;
(1). Allow the Band and PGA to expand water services and sewer services on the
Site with timely and expeditious review, approval, and permitting procedures
up to 190 gpm .flow for sewer services at the Band Parties' cost;
(m,). The City is a municipal corporation organized under the laws of the State of
Indiana, and is self-insured under provisions of Indiana. statutes and local
ordinance and as such, maintains blanket insurance coverage over real and
personal property, and is covered by a non - reverting insurance premium and
liability reserve fund created by the City, pursuant to Indiana Code 34- 13 -3 -4,
as amended from time to time. Under said statute, the City's liability is
limited to:
(1). Three Hundred Thousand Dollars ($300,000) for a cause of action that
accrues before January 1, 2006;
(2). Five Hundred Thousand Dollars ($500,000) for a cause of action that
accrues on or after January 1, 2006, and before January 1, 2008; or
(3). Seven Hundred Thousand Dollars ($700,000) for a cause of action that
accrues on or after January 1, 2008; and
(4). for injury to or death of all persons in that occurrence, Five Million
Dollars ($5,000,000); and
(5). A governmental entity or an employee of governmental entity acting
within the scope of employment is not liable for punitive damages.
(n). Maintain, in a workmanlike manner, any and all other improvements off the
Site that are not identified in this Agreement, but are required now or will be
required in the future to provide the required water service and sewer service
to the Site.
7. Residential Site Customers.
(a). The Band Parties and the City acknowledge that upon the transfer of the Site
by the Band to the United States Secretary of the Interior in trust for the Band,
limitations under applicable law will prevent the City from placing a lien
Page 10 of 16
against any portion of the Site in order to secure the payment of delinquent
charges owed for water services and sewer services provided by the City to a
Residential Site Customer. Therefore, the Band Parties and the City agree that
the procedures set forth in this Section 7 shall be the exclusive process for
addressing delinquencies by Residential Site Customers for water and sewer
service.
(b). In order to provide the Band an opportunity to address any delinquency
regarding charges owed by a 'Residential Site Customer prior to the
certification of such delinquent charges by the City, as provided below in
subsection 7(c), the City shall provide written notice each month to the Band's
Finance Director of delinquent charges owed by Residential Site Customers,
which notice shall, at a minimum, include the name and address of each Site
Customer that owes a delinquent charge and an itemized breakdown of the
delinquent charges showing the month when each delinquent charge was first
incurred and all interest and penalties added thereto.
(c). The City shall also provide the Finance Director with a written notice by the
first day of April of each year regarding every delinquent charge that has been
delinquent for at least sixty (60) days, which notice shall, at a minimum, meet
the :requirements of subsection 7(b) above and shall also include a statement
that certifies the accuracy of the information contained in the notice according
to the City's records:
(d). The Band shall pay in full to the City the amount of the certified delinquent
charges for each Residential Site Customer within thirty days of receipt of a
notice that conforms to the requirements of subsection 7(c).
(e). Upon its receipt of payment by the Band of any certified delinquent charges,
the City shall be deemed to have assigned to the Band all of the City's rights
in the certified delinquent charges and thereafter the City shall cease any and
all efforts to collect such certified delinquent charges from the Residential Site
Customer.
(f). The City may, in accordance with the standards and procedures of applicable
law, regulations, and any validly adopted policy, temporarily suspend water
service for any Residential Site Customer with delinquent charges owed to the
City until such charges are paid in full.
8. Scope of Agreement. This. agreement applies to the Site and all development
located on the Site.
9. Force Majeure. The Band Parties and the City shall not be excused from the
performance of any of their obligations under this Agreement except when such
performance is prevented by causes which are beyond the reasonable control and
without the fault of the party affected, such as acts of God, war, terrorism, civil
unrest, labor shortages and acts of a government ° in its sovereign capacity. The
party whose performance is delayed shall promptly notify the other party of any
such cause for non - performance anal, upon such notification,, such party's
performance shall be excused on a day -to -day basis only for the duration of the
cause of non. - performance and only to the extern that performance is actually
prevented provided, however, that such party diligently pursues all reasonable
efforts to eliminate the cause of non - performance. Where the performance of one
party is excused, the performance of the other parties shall likewise be excused
and all parties shall promptly resume performance upon the cessation of the cause
of non- performance.
10. Term and Breach. This Agreement shall remain in full force and effect for ninety -
nine (99) years and may only be terminated by the City due to a breach of material
terms of this Agreement by a Band Party after first providing both Band Parties
with a written notice of default and an opportunity to cure the default within thirty
(30) days from the date of such notice. The Band Parties' remedies for a breach of
material terms of this Agreement by the City include, without limitation, specific
performance. If the City breaches its duty to provide water to Site Customers, as
required by this Agreement, the Band Parties may obtain water from an alternative
source including, without limitation, another municipal water supply system or a
private water supply system located on the Site. In the event the Band Parties
obtain water from an alternative source, as permitted in this subsection, or upon
the expiration or termination of this Agreement, the City shall dedicate to the Band
the 'public portion of the water system and sewer system located within the
easements granted to the City on the Site, including the lift station and all other
improvements.
11. Limitation on Liability. The Band Parties and the City may recover monetary
damages incurred as a result of any material breach of this Agreement, including
the failure of the Band- Parties to complete their obligations related to the Full
Build -Out Phase; provided, however, that in no event shall any party be liable for
any special, incidental, consequential, or punitive damages.
12. Dispute Resolution. The Band Parties and the City shall resolve every
controversy, question, claim, or dispute between the Band Parties and the City that
arises out of this Agreement, 'including the validity of this Agreement ( "Dispute ")
in accordance with the requirements of Subsections 17(a) through 17(d) of the
Local Agreement, which provisions are incorporated herein and made a part of
this Agreement as if restated herein in their entirety.
Page 12 of 16
13.1 Governing L_aw. This Agreement shall be deemed entered into, in Indiana and
shall be subject to the laws of the State of Indiana and any applicable federal laws,
including the approval provisions of 25 U.S.C. § 81.
14. Miscellaneous Provisions.
(a). Notice. Except for notices to the Band's Finance Director for delinquent
charges as provided in Section 7, which may be delivered by U.S. Mail, first
class postage pre-paid, or by other method acceptable to the City and the
Finance Director, any notice required to be given pursuant to this Agreement
shall be delivered to the appropriate party by Certified Mail Return Receipt
Requested or by overnight mail or courier service, to the following addresses:
If to the Band or PGA:
Pokagon Band of Potawaton-li Indians
58620 Sink Road
Dowagiac, MI 49047
Attn: Chairman, Tribal Council
with a copy to:
Pokagon Band of Potawatomi Indians
58620 Sink Road
Dowagiac, MI 49047
Attn: Office of General Counsel
and to:
Robert Gips
Drummond, Woodsum, MacMahon
84 Marginal Way, Suite 600
Portland, ME 04101-2480
and if to the Finance Director regarding delinquent charges under
Section 7 to:
Pokagon Band of Potawatomi Indians
58620 Sink Road
Dowagiac, MI 49047
Attn: Finance Director
Page 13 of 16
If to the City:
The Mayor of South Bend
1400 County -City Building
227 West Jefferson Boulevard
South Bend,' Indiana 46601
With a copy to:
Corporation Counsel
1200 County -City Building
227 West Jefferson Boulevard
South Bend, Indiana 46601
With a copy to:
Bingham Greenebaum Doll, LLP
Attn: Joe Champion
2700 Market Tower
10 West Market Street
Indianapolis, Indiana 46204
A party may designate a different address for notification under this
subsection by notifying the other parties of such change in writing.
(b). Further Actions. Each party agrees to execute all documents and to take all
actions reasonably necessary to comply with the provisions of this Agreement
and its intent.
(c). Waivers. No failure or delay by a party to insist upon the strict performance
of any covenant, agreement, term or condition of this Agreement, or to
exercise any right or remedy upon the breach thereof, shall constitute a waiver
of any such breach or any subsequent breach of such covenant, agreement,
term or condition. No covenant, agreement, term, or condition of this
Agreement and no breach thereof shall be waived, altered or modified except
by written instrument.
(d). Captions. The captions for each section and subsection are intended for
convenience only.
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(e). Severability. If any provision, or any portion of any provision, of this
Agreement is found to be invalid or unenforceable; such unenforceable
provision, or unenforceable portion of such provision, shall be deemed
severed from the remainder of this Agreement and shall not cause the
remainder of this Agreement to be invalid or unenforceable. If any provision,
or any portion of any provision, of this Agreement is deemed invalid due to its
scope or breadth, such provision shall be deemed valid to the extent of the
scope or breadth permitted by law.
(f). Third Party Beneficiary. This Agreement is exclusively for the benefit of the
parties hereto. It may not be enforced by any party other than the parties to
this Agreement, and shall not give rise to liability to any third party.
(g). Successors and Assigns. The benefits and obligations of this Agreement shall
inure to and be binding upon the parties hereto and their respective successors
and assigns. The parties cannot assign their rights or obligations under this
Agreement except with the written consent of the other parties, except that the
PGA may, without the consent of the City, assign this Agreement to an
instrumentality of the Band organized to conduct the business of the Resort for
the Band if that instrumentality assumes all obligations of the PGA. No such
assignment shall relieve the Band of any obligation under this Agreement,
unless otherwise agreed to by the City.
(h). Modification. Any change to or modification of this Agreement must be in
writing signed by the parties to this Agreement.
(i). Entire Agreement. This Agreement contains the entire understanding and
agreement of the parties hereto and supersedes all other prior agreements and
understandings, written or oral between the parties. There are no oral
agreements.
Preparation of Agreement. This Agreement was drafted and entered into
after careful review and upon the advice of competent counsel; it shall not be
construed more strongly for or against any party.
(k). Execution. This Agreement may be executed in counterparts, all of which
taken together shall constitute one document.
(1). Authorization. Each person signing for an entity warrants that he or she is
duly authorized to do so.
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This Agreement was executed as of
1
Secretary
Jar7es A.Mueller
Elizabdh A. Maradik
David P. Relos
Therese J. Dorau
ATTEST:
`L da Martin, Clerk
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2016.
Flied in Clerk's Office
[7MAR2,3016
KAREEMAH FOWLER
CITYCLERK, SCA)TH REND, IN'