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HomeMy WebLinkAbout7/30/2003 - STAFF REPORTS FIRST AMENDED LICENSE AGREEMENT THIS FIRST AMENDED LICENSE AGREEMENT ("Agreement") is made and entered into as of August 1, 2003, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic ("Owner") and the AGUA CALIENTE BAND OF CAHUILLA INDIANS ("Tribe"), with reference to the following facts: A. Owner is the owner in fee simple of the real property commonly known as the Prairie Schooner Parcel ("Owner's Parcel") which is located in the City of Palm Springs, County of Riverside, bearing APN Numbers 508-055-008, 508-055-009, and 508-055-007, and is legally described in Exhibit "A" attached and made a part hereof. B. On or about November 1, 2002, Owner and the Tribe entered into a Constriction License Agreement ("Prior Agreement"), whereby the parties agreed to the Tribe's initial use of the Owner's Parcel for the purpose of facilitating the construction of the Tribe's adjacent parcel for a proposed casino development. A copy of the Prior Agreement is attached as Exhibit `B" and made a part hereof. C. The parties desire to amend the Prior Agreement to revise a number of the terns, including, but not limited to, the permissible uses of the Owner's Parcel, the consideration and the term of the Agreement, to expand the Tribe's use of the Owner's Parcel pursuant to the conditions set forth herein for the purpose of constructing and operating a parking lot which will be used, on a non-exclusive basis, by the Tribe in conjunction with the Tribe's adjacent casino. D. The parties also desire to negotiate diligently and in good faith to prepare an agreement ("DDA") whereby the Tribe would acquire a long-tern interest in the Owner Parcel and also acquire additional property for the City's benefit for construction staging purposes in comiection with the City's expansion of its Convention Center. However, for the Agency to lease the Owner Parcel, certain procedural requirements are necessary, including approval of the DDA. Nothing shall obligate Agency to approve the DDA pursuant to this Agreement. The DDA will be subject to all rules, regulations, standards and criteria set forth in the Owner's Redevelopment Plan, the City's General Plan, applicable specific plans and zoning regulations and this Agreement. The DDA will generally be in the form negotiated by the Owner with other development entities subject to the terms the Owner and the Tribe mutually agree upon. NOW, THEREFORE, in consideration of the foregoing, the parties agree as follows: 1. Modification of Prior Agreement Section 2: The entire Section 2, "Consideration for License," as contained in the Prior Agreement is hereby deleted and replaced with the following: o 1003/001/25284 v3 "2. Consideration for License. In consideration of the granting of this license, the Tribe shall, at its sole cost and expense, undertake the following tasks: 2.1 Design a "Parking Lot" which will provide approximately five hundred eighty (580) to six hundred (600) parking spaces in conformance with applicable City standards which incorporates landscaping of the Owner's Parcel. 2.2 Obtain all approvals and entitlements to constrict the Parking Lot, including approval of the plans for the Parking Lot by the City's Planning Commission. 2.3 Construct all improvements on the Owner's Parcel within ninety(90) days of the approval by the Planning Corn mission. 2.4 Make an annual contribution to the City in the amount of seven hundred thousand dollars ($700,000), in equal monthly installment payments which shall be due to the City on or before the tenth (10°i) day of each month, commencing July 10, 2003. This payment shall be allocated as provided in Section 4 below. 2.5 Perform all procedures necessary to address any Indian artifacts or other existing Indian historical resources located on the Owner's Parcel pursuant to applicable federal, state, and tribal requirements so that Tribe will agree that no additional mitigation measures are needed when the property is developed." 2. Modification of Prior Agreement Section 3: The entire Section 3, "Grant of License," as contained in the Prior Agreement is hereby deleted and replaced with the following: "3. Grant of License. 3.1 Grant of License by Owner. Owner hereby grants to Tribe a license to enter upon the Owner's Parcel to perform the consideration specified in Section 2 above and to utilize the property for constructing and operating a parking lot which will be used by the Tribe not only for constriction staging, but also in conjunction with the Tribe's adjacent casino and including a valet parking area of two hundred (200) parking spaces. Said license shall be nonexclusive except as provided in Section 5 below and Owner shall retain the right to enter the Owner's Parcel at any time. 3.2 Tenn of License. The license granted to the Tribe pursuant to Section 3.1 above shall commence as originally provided in the Prior Agreement, but shall terminate on July 31, 2005, provided that 1003/001/25284 v3 2 with an agreement in writing, the Agreement may be further extended. It is intended that the DDA can be prepared and approved by said date. 3.3 Early Termination. Owner may terminate this Agreement at its sole discretion at any time upon providing prior written notice to Tribe one (1) year in advance of the actual termination date. 3.4 Condition of Owner's Parcel. Tribe shall return the Owner's Parcel in good condition with all improvements specified herein to the satisfaction of the Owner upon the expiration or termination of this Agreement." 3. New Section 4: A new Section 4, "Repayment of Improvement Cost," shall read as follows: "4. Repayment of Improvement Cost 4.1 Allocation of Payment. The seven hundred thousand dollar ($700,000) annual payment shall be allocated 38% to the Agency as a payment of rent and 62% to the City to pay for tourism promotion, to include advertising, financing and operation of the Convention Center and visitor center, and for the provision of services needed for tourism. The payments shall be made with separate checks, each month. 4.2 Repayment of Parking Improvement Cost. The cost to the Tribe to construct the Parking Lot is agreed to be two million dollars ($2,000,000). It is agreed that the Agency shall repay this amount over ten (10) years, in annual payments of two hundred thousand dollars ($200,000). Each month that Tribe makes the payments specified above, the Tribe shall deduct $16,666.67 from the payment to the Agency as the Agency's repayment of said improvement cost. 4.3 Failure to Approve DDA. In the event the Agency does not approve the DDA and approve a long-tern lease of the Owner Parcel to the Tribe, then this License Amendment shall terminate at the conclusion of its tens. In such event, the Tribe may discontinue payment of the consideration stated in Section 2 and Agency may discontinue repayment of the parking improvement cost. Neither party shall have any liability to the other hereunder, so long as they are not in default." 4. New Section 5: A new Section 5, "Use of the Parking Lot," shall read as follows: "5. Use of Parking Lot. 5.1 Reserved Spaces. A portion of the Parking Lot consisting of approximately two hundred (200) spaces, as shown in 1003/001/25284 v3 3 Exhibit "C" attached and made a part hereof, is reserved for Tribe for valet parking purposes. 5.2 Use By the Convention Center. The Tribe agrees to meet with representatives of the Palm Springs Convention Center ("Convention Center")-on a quarterly basis to prepare a calendar setting forth those dates during which the Convention Center usage will be at a maximum so that the entire Parking Lot will be needed, other than the reserved spaces described in Section 5.1 and on Exhibit C. On the dates so designated, Tribe agrees that it will require its employees to find alternative parking, so that the Parking Lot can be fully used for Convention Center parking. 5.3 Public Use. At times when the Parking Lot is not being used by the Convention Center, except for the reserved spaces described in Section 5.1 and on Exhibit C, the approximately four hundred (400) remaining spaces in the Parking Lot shall be open for the use of the general public." 5. Modification of Prior Agreement Section 4: The entire Section 4, "Indemnity and Insurance," as contained in the Prior Agreement is hereby renumbered Section 6. 6. Modification of Prior Agreement Section 5: The entire Section 5, "Notices," as contained in the Prior Agreement is hereby renumbered Section 7. Moreover, the address for copies of all documents to Owner shall be deleted and replaced with the following: "With Copy to: Aleshire & Wynder, LLP 18881 Von Kannan Avenue, Suite 400 Irvine, California 92612 Attn: David J. Aleshire" 7. New Section 8: A new Section 8, "Sovereign Immunity Waiver" states as follows: 1003/001/25284 v3 4 118. . Sovereign Immunity Waiver. The Tribe expressly waives its sovereign immunity from lawsuit for the purpose of litigating any matters relating to this Agreement in any administrative or judicial forum, and service mailed to the address of the parties as set forth herein shall be adequate service for such litigation. The Tribe further waives its sovereign immunity from suit for the purpose of compelling compliance with this Agreement, to pursue any administrative proceeding before any administration body of appropriate jurisdiction, for obtaining injunctive relief or specific performance, to preserve the status quo during disputes, for compelling compliance with this Agreement, or enforcing any award or judgment arising out of this Agreement. Without in any way limiting the generality of the foregoing, the Tribe expressly agrees that: (1) all provisions of this Agreement shall be enforceable in accordance with their terms before any and all administrative and judicial forums of the state; (2) any action at law or in equity brought by the parties to enforce a right provided in this Agreement shall be tried in a court of competent jurisdiction in the County of Riverside, State of California, (3) this Agreement shall be interpreted as set forth in Section 8.1, and (4) all provisions concerning indemnity, duty to defend, waiver, integration and severability shall be as set forth herein." 8. Modification of Prior Agreement Section 6: The entire Section 6, "General Provisions," as contained in the Prior Agreement is hereby renumbered Section 9. 9. New Section 10: A new Section 10, "Full Force and Effect" states as follows: "10. Full Force and Effect. Except as set forth herein, the Agreement shall remain unmodified and in fill force and effect. [SIGNATURE PAGE FOLLOWS:] 1003/001/25284 v3 5 ill A16 YT New,Y( rk. Report WEDIVESDAY JULY 30,2003 ' ��JC�C�ltr�lYC1C 'f�.111TC�''' 1993 Deal for Indian Casino Is Called a Model to Avoid h >'' � PY IVER PETERSON VERONA,N.Y.,July 24-For all of the �` ': a t t i3 + s t•- { fawn and county governments hoping that + ry,,.=s new Indian casmo will solve their unemploy- """- fr, 7" F''i ,, ✓ iffg fFaw ate, meat and tax problems,the people around '-'a ' 1t r , here have a few words of advice:Don't do it p� the way we did. New Ymk State got its fast Indian gam- filing hall,the Turning Stone Castor,here in Oneida County lust 10 years ago this sum-, �- mar,and for all its wealth and success,the booming resort has cone to stand as a ilx , Js a 'L textbook example of how not to work with sovereign tribes when it comes to gambling, dap+,+ {tY ° fly '- --- - local officials say. + '+ - d The Oneida Indian Nation of New York ' agS" got state approval to open Turning Stone a °� withatit agreeing to share its revenue with state and local governments,or to pay for improvements on not-Indian lands affected by casino traffic, or to comply with local `s,,.. , environmental regulations of even to make Its hooks open to the public.Most important to local governments, the nation was not pushed to settle its 260,000-acre land claim as a price for going into the gambling busi- ness;the claim has been upheld in federal V` courts. d All of those concessions are now part of .1 the legal playback for any county lawyer or state regulator working with tribes across the country these days.The Pataki admmis- { Sy2Yatwae« `iw „r_n, r,�x, tratfon said this year that it would not grant s _ ,�,;. AA- _ ,a ty--- Is- permits for new casinos,or renegotiate old J scum nweu we me i+c.vmtrMo:IF ones,without first settling legal issues like The Turning Stone Casino in Verona,N.Y.,owned by the Oneida Indian Nation,made few concessions to government officials: x land claims. But a decade ago,state and local officials hall had no experience with Indian gambling. A gambling Hall thrives gsllver covenant" gifts ri cash m local ing decisions. .it Gov.Mario M.Cuomo was opposed to gam- oveeaments it considers friendly.But tale- In an interview this month, Mc Cdolno.,a filing,and Co milking casings for state dal- p bons between the tribes and the local gov- said he was reluctant to talk about the'land,i, lots.And the Onalke had a legal advantage with few concesS1011S ernments are so bad that only Verona,the claims because he was still named by tribes.n in operating from their own land,30 miles Ly casino's host town, and one or two other in several lawsuits,but added that he op-,,,a se.So the tribe got afree hand 'to neighbors, towns accept them posed fattenhgi state treasuries with game rl east of Syracu develop its casino with hardly any need to "Silver handcuffs,"David 0-Barker,the bling dollars."I wouldn't have tried to get,of 'to city manager in Sherrill,calls them.' cute about making deals because,even If L!i, sanely outside interests. The counties and towns around Turning Contrast that with the experience of Con- could cajole them into it,I didn't like what it Stone have certainly benefited from the The Oneidas said they needed the casino woodcut, where the two immense Indian represented as precedent,"said Mr.Cuomo,',i 3,000 jobs at die casino,with the promise of to overcome generations of poverty and casinos,Foexaads and Mohegan Sun,pour a who now practices law in Manhattan."What more as it expands.But they have also had neglect for the remnant of a native people total of$370 million a year into stale and I said was,'It's not good governance and We- to pay for the added traffic and services for whose vast upstate land holdings had local government accounts,under revenue- not a good way to run a good economy." the three million people who visit each year, shrunk to 32 acres here in central New York, sharing agreements reached before the ca- He pointed out that in exchange for state'{ they say,while increasing taxes to make up The Oneida Indians saw further into the since,opened.Or with the careful prepare- approval of Turning Stone,he required that" for revenue lost when businesses and land Future than others here,and over a decade, hall of Sullivan County,N.Y„Whose lawyer state gambling regulators and the state has negotiated agreements with two of the police oversee the casino, bought up with casino dollars are added to they poured their profits back into their the reservation and taken off the tax rolls, business. Turning Stone Casino Resort to. threes that hooking to develop the three Gov.George gambling Pataki has embraced the The costs are steep for a rural area that day is as laud and gorgeously gaudy as any casinos that afire me is includezed for the use ai Indian gambling milrevlions ore and has has already lost Griffis Air Force Base in casmo, with thousands of square feet of Catskills. the c agreements include casino bargained hard for millions c dollars in Rome and many manufacturing and farm- gambling space, several golf courses, he- payouts to the county of at(east..$16 million revenue-sharing and other concessions. ing jobs.And they feed a festering ill will g g g a year for each casino. The town of Verona has made its peace" against the Indians among people whose tels,shops and amusic hall.In 2001,accord- The bitterness felt here in Oneida County with Turning Stone, its biggest employer��b families have hued here for generations. ing to a bond prospectus circulated by the will probably only grow sharper now that and has accepted..$170,000 in silver coven;;,, "Mies somebody ere fving on one side of the nation,the complex took in$232 million for towns have started raising taxes to make up guts,along with$300,000 for new town of-�f road has to live by certain rules,and the the tribe's 1,000 members. far revenues lost on properties and bust- I bees and garages,$13 million for'd,badly�n family on the other side doesn't,that leads With some of that money, the Oneida notices bought by the Oneidas;town mahag--' needed water'system;and a pto iG6 of 513(„ Nation has bought 16,000 acres in numerous million more fm' a wastewater treatmor fu to i lot es ill feelings;'said OMilialleneida Bollard, g ors sayK. cite research analyst for Oneida County. Parcels, including 12 of Oneida convenience f r, in Heryon , around Oneidas'leader;nothd' plant.The deals were arranged by David accused policy talk tmeabotou around the coon- surviving 20 gasoline and eonvemeon, r at chat everyonearound here keearlyeery' of racism town supervisor,years back whenho he try all the time about our experience,"he stares, Mr. Hillard said. Owners of non- lawsuit aimed Oneidas have won nearly every' found racism some years back when he helped'` added. sThe wee is to avoid some of the busine shops say they have been put out d lawsuit aimed at enttng or around the them. found a movement opposing Indian saver, 'mistakes that were made here:' business by the low prices of Oneida-owned�- Other governments around the country eiguty, Upstate Citizens for Equality,,but., Ray Hagaitter,the Oneida Nation's lead- stores-The Indians undersell whneawned have learned the lessons of Oneida County who has since reconmled himself to the';, er,is unsympathetic."They say,'Why don't stores by pocketing the sales tax receipts. and its towns: that the time to extract Oneidas. "The fight is over,and all of the' the Indians pay their faze share?"'he said Tlie tribe has given away millions of concessions from tribes is before the casino victories have gone to tine nation,"Mr.Reed d s "Well,the Indians have paid a lot already in dollars'worth of gifts to educational,civic opens;when local concerns and objections sa1d.'7Ys time to stop the hatred antart the land they last" and charntable.organrzahone, and it offers can still influence state and federal heeds- working an a community."