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DRAFT AGREEMENT - JUNE 11, 2007
THIS AGREEMENT (“Agreement”) is made and entered into as of this ____ day of June 2007, by and between the Mashpee Wampanoag Indian Tribe, a federally recognized Indian Tribe, whose address is 483 Great Neck Road South, PO Box 1048, Mashpee, Massachusetts 02649 (the “Tribe”) and the Town of Middleborough, a municipal corporation of the Commonwealth of Massachusetts, whose address is 10 Nickerson Avenue, Middleborough, Massachusetts 02346 (the “Town”), on behalf of and for the benefit of the Town and all other affected local entities described in this Agreement.
RECITALS
WHEREAS: The Tribe has obtained rights to lands in the Town as more fully described below in Section 2 (the “Project Site”); and
WHEREAS:
The Tribe plans to have the land
acquired by the United States to be held in trust for the Tribe to enable the
Tribe to develop a casino
including hotel and ancillary facilities,
on the Lands
and the Town agrees to submit a letter to the United States Department of
Interior in support of the Tribe’s petition to place the Lands in trust in
form and content substantially similar to that certain letter attached hereto
as Exhibit 1 or otherwise mutually acceptable to the Tribe and the Town<
WHEREAS:
The Tribe desires to pay for the municipal and related services
that the Project ( as defined below) will require, and the Town desires to
provide the services needed by the Project, including but not limited to
roads, water and sewer and other Town services set forth in this Agreement;
and
WHEREAS:
The Tribe and Town agree that the Project will substantially impact the Town,
and the Tribe desires to mitigate said impacts of the Project through the
means described herein, and with the anticipation that the Commonwealth of
Massachusetts will similarly contribute to the costs of mitigation through
payments to be made by the Tribe to the Commonwealth; and
WHEREAS:
The Tribe desires to have the support and cooperation of the
Town in the development of the Project; and
WHEREAS: Consistent with federal law, the
Tribe has adopted a Tribal Ordinance that discloses the right of the Tribe to
assert sovereign immunity as a defense in an action brought against the Tribe;
and
WHEREAS: Consistent with federal law, the
Tribe has agreed to execute this Agreement which includes, among other
provisions, an express waiver of the right of the Tribe to assert sovereign
immunity as a defense in an action brought against the Tribe for the purposes
of this Agreement and
WHEREAS:
The Town believes that the Project will bring economic development to the
Town, creating new jobs for residents and new sources of income for local
governments; and
WHEREAS:
The Town desires to support the Tribe in the development of the Project for
these reasons
and
WHEREAS:
The Tribe desires and requests
the support of the Town in jointly requesting the Governor of the Commonwealth
to execute a Compact between the Tribe and the Commonwealth consistent with
federal law (and adequately addressing the financial aspects of certain
mitigation desired by the Town) and the Town agrees to submit a letter to the
Governor of the Commonwealth of Massachusetts in form and content
substantially similar to that certain letter attached hereto as Exhibit 2 or
otherwise mutually acceptable to the Tribe and the Town:
NOW, THEREFORE BE IT RESOLVED
that the parties, for good and valuable consideration, receipt of which is
hereby acknowledged, enter into this Agreement to effectuate the purposes set
forth above
and
to be bound by the provisions set forth below. 1.
The content of the
“Whereas” clauses above are incorporated herein. 2.
Project Description. hotel and ancillary
facilities in multiple phases (the “Project”).
The Tribe owns or
has options to acquire approximately 347 acres. The Tribe is in the process
of acquiring additional contiguous acreage. All of such land
will be included within the Project site. The Project Site is
generally situated on
the
north side of
State Route 44
between the
Plymouth and
Plympton
Street intersection, and abuts Precinct Street to the North.
The area where the Tribe either owns land or is working to acquire land is
depicted on the map attached hereto as Exhibit 3. Phase I of the
Project will consist of the gaming facility, parking facilities, supporting
operational facilities,
and infrastructure improvements, such as roadway improvements and utilities,
to support both Phases I and II. Phase II will consist of
hotel, additional parking facilities, expansion of the gaming facility and other supporting operational facilities.
3. Mitigation
Measures. It is agreed that the Payments to be made (as defined in
Section 4 below) are made in lieu of all taxes and other assessments
otherwise due
to the Town of Middleborough and/or the Town’s departments, boards or
commissions. In conjunction with the measures set forth herein, the Payments
constitute the Tribe’s mitigation efforts and are in full and complete
satisfaction of all local government impacts whether or not identified in this
Agreement.
The degree of such Payments have been negotiated with the expectation that the
Commonwealth will similarly seek payments from the Tribe, and that the
Commonwealth will provide the Town additional mitigation in the form of a
percentage of the payments received by the Tribe from the Commonwealth.
4. Local Impact
Payments.
(a)
Subject to possible
increase as set forth in Paragraph 4 (b) and 13, hereof , the
Tribe agrees to pay the Town the annual sum of
Seven
Million ($ 7,000,000)
US dollars
(“Annual Sum”), payable quarterly in equal quarterly amounts of
One Million Seven
Hundred and
Fifty
Thousand ($1,075
US dollars within fifteen (15) days following the end of each calendar quarter
(the “Payments”) commencing upon the opening of the Project’s Class
II or Class
III gaming facility,
whichever is earlier in time.
For the purposes of this Agreement, the
word “opening” shall mean the first calendar day during which a Class II or
Class III gaming facility is open to the public.
(b) The Town may receive monies directly from the Commonwealth pursuant to the terms of a Tribal-Commonwealth Compact to be entered into between the Tribe and the Commonwealth pursuant to the Indian Gaming Regulatory Act (“IGRA”) (“Compact”), or other Agreement with the Commonwealth, or legislation, (said monies, heretofore and hereinafter referred to as “Commonwealth Payments”). The Tribe shall support the Town’s receipt of a reasonable portion of any payments which the Tribe agrees to pay to the Commonwealth and further agrees that whatever sums paid to the Town by the Commonwealth will not be deducted from payments made by the Tribe to the Town as agreed to herein; provided however, that the Tribe makes no representation or warranty of what can be achieved in negotiations with the Commonwealth. Excepting the Re-Opener provisions of Section 13, below, in the event that the Compact provides for Commonwealth Payments based on a percentage of the Tribe’s gaming revenues (including a percentage of the Tribe’s slot machine revenues) and the Compact does not allocate one (1%) or more of such revenues to the Town, then and in that event and that event only, the Annual Sum will be increased on the fifth (5th) anniversary of the opening of a Class II or Class III gaming facility by the Tribe by an amount equal to the compounded, cumulative increase over the preceding five (5) years in the Consumer Price Index (CPI) published by the United States Department of Labor for the Boston, Massachusetts metropolitan area, provided however, that there will be no such increase if the Tribe’s revenues from the Project have not increased by at least a like amount during said five (5) year period. The Annual Sum as increased shall then be paid for the next five (5) years. On the fifth (5th) anniversary of the first adjustment and each succeeding fifth anniversary during the term hereof, the Town will be entitled to an adjustment subject to the methodology and conditions set forth above. In the event that the United States Department of Labor shall cease to promulgate the CPI, the Tribe and the Town agree to meet and discuss in good faith the adoption of commonly accepted alternative to the CPI for the purposes hereof.
(c) Within thirty (30) days of the Project site or portion thereof being declared or otherwise identified as Trust Land by the United States Government, the Tribe shall pay the Town annual impact fee payments on the land taken into Trust equal to the Land’s assessed value multiplied by a rate of $15.00 per $1,000 of assessed valuation. This sum shall be paid to the Town in equal quarterly amounts. The payments agreed to by this sub-paragraph shall cease if and when payments required by Section 4(a), above, commence.
5. Road Improvements. The Tribe will pay for all required road improvements to State, County and local roads immediately serving the Project Site and as required by the United States Government and the Commonwealth of Massachusetts necessary for development and operation of the Project, as identified in the Tribe’s Environmental Assessment or Environmental Impact Statement, as approved in final form by the Bureau of Indian Affairs. This obligation shall not include normal and customary maintenance. The Town agrees to cooperate and support the Tribe’s undertaking of the road improvements required by federal and state governments. The Tribe and Town agree to work cooperatively to seek federal funds available to recognized Indian Tribes for road improvements and ongoing maintenance.
6. Electricity, Natural Gas, Sewer and Water Infrastructure and Services. The Tribe will pay for all extensions and improvements to sewer and water infrastructure necessary for development and operation of the Project as same may be developed shall provide reasonable usage capacity to the Tribe’s Project and shall cooperate and support the Tribe’s plans for water and sewer operation and maintenance for the sewer and water infrastructure necessary for the development and operation of the Project. The Tribe shall obtain electricity and natural gas from the Middleborough Gas and Electric Department of the Town. All operation, user and maintenance charges for electricity, natural gas, sewer and water use by the Project shall be borne by the Tribe at rates consistent with those charged to non-Tribal users. The Tribe and Town agree to work cooperatively to seek federal funds available to recognized Indian Tribes for infrastructure improvements and ongoing maintenance.
7. Police Protection. It is anticipated that provision of police protection to the Project will be addressed in the Compact between the Tribe and the Commonwealth authorizing gaming at the Project site. In the event that costs of police protection are not addressed in the “Tribal-Commonwealth Gaming Compact”, the Town shall not be obligated to provide police protection on Trust Land or within the Project sitewithout a supplemental agreement, but will cooperate with the Tribal law enforcement authorities and Commonwealth law enforcement authorities with respect to police protection matters involving the Tribe’s Project and operation. In connection therewith, the Town and the Tribe to meet and negotiate in good faith for a cross-deputization and mutual aid agreement. Whenever the Tribe schedules a special event on Trust Lands or within the Project site, which is reasonably anticipated to require law enforcement personnel above the level of staffing employed by the Tribe, the Tribe agrees to compensate the Town for the costs incurred by the Town as a result of the special event. The Tribe and Town agree to work cooperatively to seek federal funds available to recognized Indian Tribes for public safety (police, fire, emergency) services.
8. Fire Protection. It is anticipated that provision of fire protection to the Project site will provided for by the Tribe. In the event that costs of fire protection are not provided for directly by the Tribe, the Town and its political subdivisions shall not be obligated to provide fire protection without a supplemental agreement, but will cooperate with Tribal fire officials with respect to fire protection matters involving the Tribe’s Project and operation. In connection therewith, the Town and the Tribe agree to meet and negotiate in good faith for a mutual aid agreement. 9. Emergency Services. It is anticipated that provision of emergency services to the Project will be provided for directly by the Tribe. In the event that costs of emergency services are not provided for directly by the Tribe, the Town shall not be obligated to provide emergency services without a supplemental agreement.
10. Solid Waste Disposal. The Tribe shall contract with a private waste hauler for disposal of solid waste and recycled materials generated by the Project and pay all fees associated therewith.
11. Building and Fire Protection Code. The Tribe shall adopt codes applicable to the Project relating to building construction and fire protection (“Tribal Building code”) that are not less rigorous than the Massachusetts Uniform Building and Fire Prevention Code as the same shall be amended from time to time. Enforcement of the Tribal Building Code shall be by a Tribal Code enforcement Officer appointed by the Tribal Council. Additionally, independent consultants shall be engaged by the Tribe to periodically review construction activity on the Project Site and its compliance with the Tribal Building Code.
12.- Employment of Middleborough Residents. Subject to Tribal employment preferences relating to Tribal members or members of other federally recognized Tribes, the Tribe shall work in good faith with the Town to employ Middleborough residents or children of Middleborough residents at the Project to the extent permitted by state or federal law.
13.Re-Opener. Notwithstanding the payment schedule found in Section 4(a), above, on the tenth (10th) anniversary of this Agreement and every ten (10) years thereafter, the Tribe and the Town shall meet to discuss an increase in the Annual Sum agreed to in Section 4(a) above due to impacts to municipal resources resulting from the Project and not adequately covered by the Annual Sum, as same may be increased in accordance with Section 4(c), above. The Tribe and the Town agree to negotiate in good faith regarding an increase in said annual payments.
14 Undertakings of the Town. In consideration for the mitigation measures to be undertaken by the Tribe in this Agreement, and in further recognition of the many benefits the Project will bring to the Town, the Town shall:
provide such services as contemplated in this Agreement or by separate agreement. Except as otherwise provided for herein, the Town will provide normal and customary general government services to the Project as are afforded to residents and other commercial entities situated in the Town;(a)
(b)
support the Project, and to actively work with and assist the Tribe and its
contractors and agents to obtain any and all approvals, legislation
or enactments required for the Project from governmental entities and
officials of the United States of America, the Commonwealth of Massachusetts,
the Town, and all Locally Impacted Entities. The Town shall prepare and
forward a letter of support to the United States Department of Interior,
Bureau of Indian Affairs, the Governor, key members of the State Legislature,
the Massachusetts Congressional delegation, and other key Congressional
leaders when requested by the Tribe
in support of the Tribe request to place the Project land in Trust
status (Exhibit 1) and in support of the Tribe's request of
the Governor to execute a Compact between the Tribe and the Commonwealth
(Exhibit 2)
(c)
reasonably
assist the Tribe in responding to negative comments about the
Project, reiterating the Town’s support and the basis therefore; and
(d)
defend,
intervene in or participate as amicus curiae in any law suit
challenging any
Town,
Federal or Commonwealth approvals necessary for gaming to occur on the
Project
site,
including but not limited to, an appeal of or legal challenge to, this
Agreement, provided however, that the Tribe shall be solely responsible for the
payment of all costs of defending, intervening or participation as amicus
curiae (including, but not limited to all costs, disbursements and legal fees)
incurred in the defense of the Tribe’s efforts to obtain approvals necessary
for gaming to occur on the Project site.
