Loading...
HomeMy WebLinkAbout1986-408 , , q , 1 RESOLUTION NO. 86-408 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AMONG THE CITY OF SAN BERNARDINO, COUNTY 3 OF SAN BERNARDINO, CAROLYN RICHARDS, THE SAN MANUEL BAND OF MISSION INDIANS AND WESTERN ENTERTAINMENT CORPORATION RELATING TO 4 THE SETTLEMENT OF LITIGATION. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF 6 SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The Mayor of the City of San Bernardino and City 8 Council Negotiating Committee Members Steve Marks, Chairman, 9 Esther Estrada, Member, and Ralph Hernandez, Member, are hereby 10 authorized and directed to execute on behalf of said City an 11 agreement among the City of San Bernardino, County of San 12 Bernardino, Carolyn Richards, the San Manuel Band of Mission 13 Indians and Western Entertainment Corporation relating to the 14 settlement of litigation, a copy of which is attached hereto, 15 marked Exhibit "A" and incorporated herein by reference as fully 16 as though set forth at length. 17 I HEREBY CERTIFY that the foregoing resolution was duly 18 adopted by the Mayor and Common Counc il of the City of San 19 Bernardino at a reaular meeting thereof, held on 20 the 6th day of October , 1986, by the following vote, 21 to wit: 22 23 24 25 26 27 AYES: Council Members Estrada. Reillv. Hernandez. Marks NAYS: None ABSENT: Conn~i 1 Mp-mhp.r~ OuiA' Frrl7.;pr ~+rir.klAr k~W1dA1l/ / CIty Clerk 28 . . . . . . . . \ ". .. , 1 The foregoing resolution .is 2 of Orroh&:lr , 1986. 3 4 5 Approved as to form: 6 ~~:cV 7 City A torney 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1tL day -2- f , , , ' , , " '1 r 6 c ';/j(, AGREEMENT OF SETTLEMENT AND COMPROMISE This agreement is entered into by and between the City of San Bernardino, a Charter city ("City"), the County of San Bernardino, a Charter County ("County"), and Carolyn RichardsO (the "Individua~'), collectively referred to hereinafter as "Plaintiffs", on the one hand, and the San Manuel Band of Mission Indians, a federally recognized Indian Tribe ("Tribe"), and Western Entertainment Corporation, an Ohio corporation ("Western Entertainment"), collectively referred to hereinafter as "Defen- dants," on the other hand. RECITALS A. Plaintiffs city and County are local government agencies within the State of California. B. Plaintiff Individua~ i.. .. persono who reside.!, and own.!., property in the City or County near a federally recognized Indian reservation which is occupied by the Tribe (the "Reservation") andO is a representative_ of others similarly situated. The Reservation is contiguous to the borders of the City and County. C. Defendant Tribe is a federally recognized Indian tribe, the members of which primarily reside on the Reservation. Defendant Western Entertainment is a corporation which has 1 09.SANMAN\SETTLE.AGR.IO (~EO L.''''') EXHIBIT A . 'f I .'" " contracted with the Tribe to furnish it manaqement, construction and financial expertise and assistance in connection with the Tribe's proposal to conduct binqo qames on the Reservation. D. The parties are presently enqaqed in litiqation entitled Citv of San Bernardino. et a1. v. San Manuel Band of Mission Indian. et al., United states District Court (C.D. Calif.) No.J 85-6899 WJR (Bx) (the "Action"), the subject of which is Plain- tiffs' contention that Defendants, in constructinq and proposinq to operate a facility on the Reservation for playinq the qame of binqo in which the qames~are ~laved for ~rizes in excess of those which may be awarded under California laws requlatinq the qame of Binqo (the "Binqo Project"), are in violation of various Califor- nia and federal laws, includinq the National Environmental Policy Act (NEPA) and other environmental, land use and other statutes, and have interfered with certain of Plaintiffs' riqhts in connection therewith. Defendants have denied the alleqations of the complaint. E. On December 6, 1985, after a hearinq, United States District Court Judqe William Rea denied Plaintiffs' request for a preliminary injunction in the Action, which, if qranted, would have prohibited Defendants' proposal to proceed with the Binqo Project. A request for a stay of that order pendinq appeal was also denied. The orders of Judqe Rea are now on appeal before the Ninth Circuit Court of Appeals. On February 10, 1986, Judqe 2 09.SANMAN\SETTLE.AGR.IO 1 .~ t r ; ., ,. Rea granted the Tribe's motion to be dismissed from the action on the ground of the Tribe's sovereign immunity. Plaintiffs have filed a First Amended Complaint. F. There is presently an administrative proceeding pending before the Department of the Interior, Interior Board of Indian Appeals, between the City and the Tribe styled Citv of San Bernardino v. The San Manuel Tribe of Mission Indians, Docket No. IBIA 86-22-A (the Administrative Appeal) with respect to the Bingo Project and the acquisition of land by the Tribe on Victoria Avenue and north of Lynwood Avenue, which land has been made a part of the Reservation. G. There are presently five (5) real estate parcels on the West and South borders of the Reservation which are among those allegedly affected by the Bingo Project. The street addresses and names of record owners are: 1. Randy L. and Sheila T. Kohrell 3214 N. Victoria Avenue San Bernardino, CA 92346 2. Ben Gorbea 3230 North Victoria Avenue Mailing Address: 2663 La praix Highland, California 92346 3. Woodrow W. and Audie Ford 3238 N. Victoria Avenue San Bernardino, CA 92346 4. Edward L. and Dorothy J. Ballinger 3246 N. victoria Avenue Highland, CA 92346 3 09.SANMAN\SETTLE.AGR.10 , . .. " 'j .. 5. William T. and Elizabeth C. Richards 2804 Piedmont Avenue San Bernardino, CA 92404 -2:;.(.:," The foregoing are collectively called the "Properties". H. In addition to the Properties, there is also a parcel owned by Lt. Col. James D. Barlow, U.S.A.F., which is the subject of certain provisions in this agreement ("Barlow Property"). The address of the Barlow Property is : 3164 Yuma Drive Highland, CA 92346 I. This agreement will also make reference to certain homeowners who live near the Reservation (the "Homeowners") and who may claim that the Bingo proj ect is having or will have an adverse effect on their property values. J. The parties have determined that it would be in the best interest of all concerned if the Action and all disputes between Plaintiffs and Defendants in connection with the foregoing matters could be resolved amicably and in a manner which address- es the various concerns which have been raised by both sides to the Action in various pleadings and other documents which are before the court and in documents filed in the Administrative Appeal. Accordingly, the parties now desire to compromise, adjust and settle between themselves, at once and forever, all claims, demands and causes of action that either Plaintiffs or any of them may have against Defendants or any of them or 4 09.SANMAN\SETTLE.AGR.10 . , ' Defendants or any of them may have aqainst Plaintiffs or any of them, includinq those that are at issue or miqht be placed in issue in the Action or the Administrative Appeal. 1(. By enterinq into this aqreement neither Plaintiffs or any of them nor Defendants or any of them admits or concedes the validity of any alleqation, claim or defense asserted aqainst them in the Action or the Administrative Appeal or by anyone whatsoever in connection with the subject matter thereof and/or in these recitals, and all parties acknowledqe that nothinq contained in this aqreement or the fact of the aqreement itself is or is intended to be construed as such as an admission, concession or any other form of evidence for or aqainst any party, includinq but not limited to any acknowledqment of wronqdoinq. ~. The monetary consideration paid by Defendants to Plaintiffs hereunder is for the purpose of mitiqatinq the alleqed impact, if any, caused by the Binqo Project to the City, County and its residents. M. The mechanism for effectuatinq the settlement herein is by means of a stipulated class action and judqment in the Action, all as set forth below. 5 09.SANMAN\SETTLE.AGR.10 . I I. .. .' NOW, THEREFORE, FOR VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HEREBY AGREE AS FOLLOWS: 1. RECITALS INCORPORATED. The foregoing recitals, includ- ing all representations express or implied therein, are hereby incorporated by reference into this agreement and made a material part hereof. 2 . PAYMENTS BY DEFENDANTS. Defendants shall pay to the city and County, jointly, the maximum sum of One Million One Hundred Fifty Thousand Dollars ($1,150,000), payable on the following terms and conditions: a. Upon the effective date of this agreement by Plaintiffs and each of them, Defendants shall cause to be paid to the City and County, jointly, the sum of Fifty Thousand Dollars ($50,000). Thereafter, for so long as Defendants are engaged in the Bingo Project, Defendants shall pay to the City and County, jointly, the following maximum sums on the dates indicated: (1) Four payments in the sum of Sixty-two Thousand Five Hundred Dollars ($62,500) each payable on or before the end of the third (3rd), sixth (6th), ninth (9th) and twelfth (12th) month after the date this agreement becomes effective; 6 09.SANMAN\SETTLE.AGR.10 , .' 1 I " " (2) Two payments in the SUIII of Seventy-five Thousand Dollars ($75,000) each payable on or before the end of the sixth (6th) month and the twelfth (12th) month of the second (2nd) year after the date this aqreement becomes effective; (3) Two payments in the SUIII of Seventy-five Thousand Dollars ($75,000) each payable on or before the end of the sixth (6th) month and the twelfth (12th) month the third (3rd) year after the date of this aqreement becomes effective; (4) Three payments in the amount of One Hundred and Fifty Thousand Dollars ($150,000) each payable on or before the end of the fourth (4th), fifth (5th) and sixth (6th) years, respectively, after the date this aqreement becomes effective; and (5) One payment in the SUIII of One Hundred Thousand Dollars ($100,000) on or before the end of the seventh (7th) year after the date this aqreement becomes effective. b. Except for the initial $50,000 payment, all monies are due from Binqo Project receipts only. If in any year five percent (5%) of the qross receipts is less 7 09.SANMAN\SETTLE.AGR.10 . . ',. than the total amount due for that year, as set forth in subparaqraphs 1 throuqh 5 above, then the payments due for that year under said subparaqraphs above shall be reduced to a total amount for such year which does not exceed five percent (5%) of the qross receipts for such year. For example, in the second year, if five percent (5%) of the qross receipts are equal t2 One Hundred Thirty Thousand Dollars ($130,000), then One Hundred Thirty Thousand Dollars ($130,000) (rather than One Hundred Fifty Thousand Dollars ($150,000)) shall be the total amount due for that year. In the event there are no receipts from the Binqo Project in any applica- ble year, no payments will be due. So lonq as the Defendants continue to enqaqe in the Binqo Project, the difference, if any, between the payments based on five percent of the qross revenue and the maximum amount due shall be carried forward and accumulated for payment at a rate of no more than $100,000 per year or 5% of the qross per year (when combined with all other monies which may be due under this aqreement), whichever 1s less, until a total of One Million One Hundred Fifty Thousand Dollars ($1,150,000) has been received by Plaintiffs. As used in this aqreement, a year means a 12-month period, with the first year beqinninq on the effective date of the aqreement and each followinq year beinq the next succeedinq 12 month period. Notwith- 8 09.SANMAN\SETTLE.AGR.10 . , ." standing anything in the foregoing to the contrary, the first two payments set forth in paragraph 2 (a) (1) above shall not be subject to the limitation that they amount to five percent (5\) of the gross receipts for said period, and in no event shall the total payments due during the first year after the date this agreement becomes effective, as set forth in said paragraph 2 (a) (1) ,Obe less than One Hundred Twenty Five Thousand Dollars ($125,000), not including the Fifty Thousand Dollars ($50,000) paid upon the effective date of this agreement. c. As used in this agreement, the terms "receipts" and "gross receipts" shall mean the total monies received from customers of the Bingo Project before deduction of expenses attributable to the Bingo Project.. Concession income shall be included if said income is received in connection with the operation of the Bingo Project. d. In the event Defendants contend that the gross receipts are or will be less than would require payment of the applicable maximum amount for the year in question as set forth above, they shall be required to so notify city and County within thirty (30) days of the date any installment is due and shall pay an estimated amount made in good faith after consultation 9 09.SANMAN\SETTLE.AGR.10 ." with a "Big Eight" accounting firm. Final settlement of the total amount due for such year shall be made no later than ninety (90) days after the end of such year and shall be supported by a letter from a Big Eight accounting firm certifying the amount of gross receipts received for that period and computing the amount of payment due, which letter shall be deemed conclusive as to the amount of such receipts, unless Plaintiffs exercise, within thirty (30) days after receipt of such letter, their right to audit, as follows: Plaintiffs, at their own expense, shall retain any "Big Eight" firm to audit the books and records of Defendants for the year in question in the event such year's total payment falls below the amounts set forth above. If such audit shows that the gross receipts have been understated by ten percent (lOt), or more, then the expense of the audi t shall be paid by the Defendants, provided that any disagreement with respect to such audit shall be submitted to the court retaining jurisdiction for such matters as set forth herein for resolution after notice and hearing. In the event Defendants make the full amount of the maximum payment due in any year as set forth above, no such statement shall be required for such year and Plaintiffs shall be deemed to have no interest in such information and shall have no right to audit. 10 09.SANMAN\SETTLE.AGR.10 . - -' e. Except for the first three (3) payments set forth in paraqraph 2a above (includinq subparaqraphs (1) and (2)), which three payments shall be delinquent after the payment dates indicated, all payments shall become delinquent thirty (30) days after they are due. All payments shall bear interest after-delinquency at the prime rate charqed to favored customers of the San Bernardino branch of First Interstate Bank or its successor plus 1 percentaqe point per annum, determined as of the first day of such delinquency. If payment is not made within one hundred twenty (120) days after such payments become delinquent,then interest at the prime rate charqed to favored customers of the San Bernardino branch of the First Interstate Bank (or its successors) plus two percent (2\) per annum shall be added beqinninq retroactively with the first day after payment is due. f. Under no circumstances shall any property, either real or personal, tanqible or intanqible, of the Tribe and located on the Reservation, or any such property of any member of the Tribe (includinq any spouse, parent, qrandparent, niece, nephew, aunt, uncle, child, qrandchild or member of any such persons' household) located anywhere, whether on or off the Reservation, be subject to any lien, attachment, claim, execution, 11 09.SANMAN\SETTLE.AGR.10 . . encumbrance or other form of satisfaction or security for the claims of Plaintiffs and each of them under this agreement. The parties intend by this paragraph to subject Tribal property located off the Reservation to such satisfaction but to immunize all Tribal property on (but not off) the Reservation and Tribal members' (and their family's) property wherever located from any consequence arising out of any default in connection with any obligation of Defendants or any of them under this agreement. with respect to any such immunized property, all of the Tribe's and its members' rights with respect to sovereign immunity are hereby reserved in addition thereto and shall not be deemed waived. All daily receipts from the Bingo Project (except cash retained in the ordinary course) shall be deposited in a bank account located in the city or County of San Bernardino within 10 miles of the reservation, and any money in such account shall be subject to any lien, attachment, or execution, with respect to any monetary claims under this agreement on the same basis under law as liens, attachments or executions are generally permitted under law for similar claims. Said account shall not be in the name of any individual member of the Tribe. Nothing herein shall be deemed to limit Defendants' right and ability to use said account as they shall determine in their, 12 09. SANMAN\SETTLE.AGR. 10 . or either of their, sole discretion, includinq the unrestricted riqht to deposit into, and withdraw from, said account, or to create in said account or in any other property held, owned claimed or used by the Tribe or any other Defendant any security interest, encum- brance, restriction, lien or other interest, vested or continqent, tanqible or intanqible, in favor of Plaintiffs or any of them or any other person or entity whatsoever. Notwithstandinq anythinq in the foreqoinq to the contrary, Defendants aqree that they shall not create any lien or encumbrance with respect to said account for the primary purpose of defeatinq any claims of the City or County herein. Defendants further aqree to keep the city and County, throuqh the City Attorney and County Counsel, respectively, informed of the name and branch where said account is located and of the account number. City and County aqree that such information is, and shall remain, confidential and shall not be released to anyone except to officials, employees, or representatives (includinq attorneys) of City or County in connection with the enforcement of this aqreement. 3 . PURCHASE OF PROPERTIES BY DEFENDANTS. In addition to the foreqoinq, Defendants aqree to do the followinq: 13 09.SANMAN\SETTLE.AGR.10 a. On or before ninety (90) days after the effective date of this agreement, Defendants shall offer to purchase the Properties at fair market value. As used in this agreement, "fair market value" shall mean any price and terms negotiated between the owners of said Property and Defendants but, if no agreement can be reached within the time periods set forth below, or such other time periods as the parties may agree upon in writing in lieu thereof, the estimated market price of the Properties on January 1, 1986, as determined by an independent MIA appraiser based on the value of said property as of said date, without taking into consider- ation any loss or increase in value, if any, that may be attributable to the proposed or actual existence of the Bingo Project. Said appraisal may be demanded by the owner of any Property in question upon the owner's rejection of or failure to receive, within said 90-day period, an acceptable written offer by Defendants to purchase the property or to negotiate further, provided the owner, within thirty (30) days of such rejection or expiration of the 90-day (or longer if extended) period without receiving any such offer, notifies Defendants, in writing at the address set forth herein of Owners' bona fide offer to sell at an appraised value to be determined as set forth herein. Within twenty (20) days after receipt of such an offer, Defendants and 14 09. SANMAN\SETTLE.AGR. 10 '" said owner shall mutually agree upon an appraiser or, if none be agreed upon, an MIA appraiser shall be appointed by the court in the action from names of appraisers submitted by the owner and Defendants, but if no such names be submitted, by any MIA appraiser selected by the court. The cost of the appraisal shall be divided between buyer and seller, payable from the proceeds of sale if possible. The appraisal shall be issued in writing to all affected parties and shall constitute a binding offer by the owner to sell, and by Defendants to buy, the Property in question for the lowest price indicated in said appraisal and subject to the terms set forth below. Immediately after issuance of said appraisal an escrow shall be opened at the San Bernardino branch of Safeco Insurance Co. for the purpose of closing the sale, on the following terms: (1) The Defendants shall cause the sales price to be deposited before the close of escrow; (2) Escrow shall close within 60 days of opening; (3) owner shall furnish an ALTA form policy of title insurance at owners expense showing that title is being conveyed free and clear of all liens, encumbrances and other clouds on Defen- 15 09.SANMAN\SETTLE.AGR.10 . . dants' ability to own the Property in fee simple absolute free from all easements, liens, encum- brances, rights of way and the like, which would interfere with the use of the Property for the purpose of residential or parking lot usef (4) Owner shall furnish a termite report showing all structures on the Property to be free from termites, dry rot and completion of such correct- ive work as may be required to achieve such conditionf (5) Owner shall certify that, to owner's know- ledge, all construction and/or improvements or renovations have been in accordance with all applicable building codes and safety laws or, if such is not the case, to set forth the exceptions theretof (6) Owner shall certify that, to owner's know- ledge, said Property is free from defects which, if disclosed, would materially affect an arm 's length buyer's decision to buy said Property or, if such material defects exist, to set forth owner's knowledge with respect theretof 16 09.SANMAN\SETTLE.AGR.10 ~ . (7) Owner shall waive and release any and all claims against Tribe, Western Entertainment, the United states of America, the City and the County, and their past and present officers, officials, directors, shareholders, principals, members, employees, attorneys, agents, representatives, heirs, successors and assigns, and each of them, with respect to any matter alleged in or which could be alleged in, or arising out of, the Action. (.!.l Defendants I obligation to purchase said Property shall be subj ect to and contingent upon (1) appropriate legal and binding assurances, permits, ordinances and the like from the city and County permitting any Properties being purchased to be used for parking lots as set forth in paragraph 5(f) below, and (2) owner's fulfillment of the above requirements and Defendants' review and approval (which shall not be unreasonably withheld) of such compliance. To the extent disclosures are made under subparagraphs (3), (4), (5) or (6) above, Defendants may, if reasonable to do so given the materiality of such disclosures, refuse to purchase the Property in question. 17 09.SANMAN\SETTLE.AGR.10 . , . . (8) Notwithstandinq anythinq in this aqreement to the contrary, Defendants' obliqation to purchase any Property on the west side of the Reservation (Properties numbered 1, 2, 3 or 4 listed in recital G above) shall be continqent upon any three (3) contiquous parcels of such Properties beinq available and acceptable to Defendants under the terms of this aqreement, and no escrow shall close (except at Defendants' behest) as to any Property until such continqencies are removed by definitive action with respect to each such Property or these continqencies are waived by Defendants. (9) Defendants aqree that real property taxes on any Property purchased hereunder shall continue to be paid and in no case shall such Property be exempt from taxation while owned by defendants or their successors in interest. Said Property shall be treated for tax assessment purposes as similar- ly used and improved Property is assessed in other parts of the county. In the event Tribe desires to seek reservation or other protected status in connection with any Property or Properties, Tribe shall qive no less than ninety (90) days express written notices to city's Mayor and Common Council 18 09.SANMAN\SETTLE.AGR.10 and to the County Board of Supervisors of such intention prior to applying for reservation status or any other status which would remove said Property or Properties from the city or County tax rolls. Notwithstanding anything to the contrary herein, no reservation or other protected status shall be sought as to the Richards' Property (identified in Recital paragraph G.5. above) at any time, which Property shall remain single family residential in use so long as the adjoining properties are so used, or as to the other Properties within five (5) years of the effective date of this agreement. 4. FURTHER AGREEMENTS BY DEFENDANTS. In addition to the foregoing, Defendants agree to do the following so long as the Bingo Project exists: a. Provide and maintain a landscape buffer between the Reservation and the Barlow Property sufficient to minimize lights from the Reservation parking lot east of Victoria from shining into the Barlow Property residence and to attenuate noise and provide a sight barrier from the Bingo parlor premises. The cost of such buffer shall not exceed Ten Thousand Dollars ($10,000). At Col. Barlow's discretion, in lieu of 19 09.SANMAN\SETTLE.AGR.10 . . providing such a buffer, a one-time payment at the lowest bona fide bid amount for such buffer, to be obtained by competitive bidding and not to exceed $10,000, shall be paid directly to Col. Barlow. The installation of the buffer or payment in lieu thereof shall be completed within 60 days of the effective date of this agreement. As a condition precedent to any obligation arising under this paragraph, Col. Barlow (and any other record owner of the Barlow Property) shall agree in writing that fulfillment of such obligations shall be deemed a complete release by Col. Barlow and such other record owner(s), and their heirs, successors and assigns, of all claims against the Tribe, Western Entertainment, the United states of America, the city and the County, and their past and present officers, officials, directors, shareholders, principals, members, employees, attorneys, agents, representatives, heirs, successors and assigns, and each of them, with respect to any matter alleged or which could be alleged in, or arising out of, the Action, except that claims, if any, Col. Barlow (and such other record owner(s)) would have as a member of the class referred to in paragraph 10 (provided he does not elect to be excluded from such class) are hereby preserved, but the effect of any landscaping provided or monetary payment made under this paragraph may be 20 09.SANMAN\SETTLE.AGR.lO .. considered in any such claim arbitration. - b. Provide and maintain landscaping along the south and east perimeter of the parking lot on the west side of Victoria Avenue and along the south and east perimeter of the east side of the Reservation, in accordance with the plans attached hereto as Exhibit "A." c. Install and maintain curbs and qutters for the parking lot and Bingo facility on Victoria and Lynwood avenues, per the plans attached hereto as Exhibit "B." d. Adjust and maintain the parking lot lights so that reflection into neighboring residences is kept to a reasonable minimum, keeping parking lot security needs in mind. The lighting plan in use at the time this agreement is siqned shall be deemed to meet the intent of this paragraph as set forth in a lighting plan which is attached hereto as Exhibit "C". e. Maintain a first aid station manned with properly trained personnel in first aid and CPR on the premises of the Bingo Project at all times while open. 21 09.SANMAN\SETTLE.AGR.10 f. Negotiate in good faith with the City for litter and trash removal contracts with respect to the Bingo Project. g. Cooperate in the maintenance of the drainage channel on the eastern edge of the Reservation by keeping it free from debris and other matter from the Reservation, which materially impair its flow. h. Engage a licensed security guard service for the Bingo Project and encourage that service to utilize off-duty, retired or reserved police and sheriff's officers whenever possible, although not exclusively. i. Secure the parking lots of the Bingo Project so that they are not accessible to the public except in connection with Tribe authorized activities. Although the Tribe retains its sovereign immunity with respect to all Tribal land, including the parking lots of the Bingo Project, the Tribe agrees that said lots will not be utilized for the purpose of a swap meet. j. The roof of the Bingo Project facility shall remain free from signs and a screen will be erected around all air conditioning and heating units thereon. No promotional flags, banners, blimps, balloons or bunting 22 09.SANMAN\SETTLE.AGR.10 . . shall be used as decoration or for advertisement. k. Provided the Properties are acquired and available for parkinq pursuant to paraqraph 3 above, such Properties shall be used in a manner which is consis- tent with existinq and future city zoninq, and no parkinq structures shall be constructed on any parkinq areas on the reservation which now serve the Bingo Project. 1. Certify to city in the form attached hereto as Exhibit "0", that the existing design and construction of the binqo parlor complied with the Uniform Fire Code and Uniform Building Code in effect when the building was erected. Certification to City in the form attached hereto as Exhibit "E", of such continued compliance by Defendants to city with such codes shall be made every two years thereafter so long as the Bingo Project continues, but Plaintiffs shall have no right of inspection with respect thereto. m. The drainage from the paved areas and roof of the bingo parlor shall be directed to the drainage ditch to the east or to Victoria Avenue, and drainage from the parking lot shall be collected on-site and transported to the Flood Control Channel rather than onto Lynwood 23 09.SANMAN\SETTLE.AGR.IO .. Avenue, all as set forth in the plans and specifica- tions attached hereto as Exhibit "F". Plaintiffs acknow1edqe that the conditions at the site conform to this paraqraph as of the date this aqreement is siqned. n. The binqo parlor is now finished in an earthtone color to neqate the visual impact of a structural bulk in a residential area. Plaintiffs aqree that the color of the bui1dinq as it exists at the time this aqreement is signed shall be maintained and continued. o. A problem resolution committee comprised of residents from the impacted area and members of the Tribal Council shall be formed and shall meet periodi- cally and requ1ar1y as a forum for exchanqinq ideas concerninq the impact of the Binqo Project, if any, on the community and vice versa. Said committee's recom- mendations shall be communicated on an advisory basis to all interested parties. p. Defendants shall participate with city in qood faith neqotiations to consider the feasibility of relocating the binqo operations to an alternate site. 5. AGREEMENTS BY PLAINTIFFS. all, to the fo11owinq: Plaintiffs aqree, each and 24 09.SANMAN\SETTLE.AGR.10 ", a. city and County agree to respond without delay for special escorts or any other extraordinary means to requests of the Tribe for law enforcement, fire and paramedic services in a similar manner to requests received from San Bernardino City and County residents. The Defendants recoqnize that the County will be responding to any calls originating at the Bingo Parlor and that the City shall be responding to calls origin- ating from the parking lot, but Defendants shall receive instruction from Plaintiff in using only one telephone number for all such services, regardless of whether emanating from City or County. b. city recognizes the right of Defendants to use Victoria Avenue for bus travel. c. City shall maintain Victoria Avenue in a condition which is satisfactory for the purposes for which it is to be used. d. City shall diligently pursue the upgrading of the traffic siqnal at Highland Avenue and Victoria Avenue to provide a left-turn capability for vehicles travel- ing north and south on Victoria Avenue and proceeding left on Highland Avenue, so as to meet any concerns of City or County as to increased usage due to the Bingo 25 09.SANMAN\SETTLE.AGR.10 " '. Project. e. city shall erect a permanent barrier for the passaqe of fire and emerqency vehicles and pedestrians prevent- inq eqress from Piedmont Avenue onto Victoria Avenue, and improve the eastern extension of Piedmont Avenue so residents of the area served thereby can exit on to and enter from Hiqhland Avenue. f. Plaintiffs aqree that upon acquisition of the Properties on the west side of Victoria Avenue such Properties may be used for parkinq, provided said Properties are improved with curbs, qutters and landscapinq similar to that of the other Binqo Project parkinq lots now in existence and in compliance with applicable city zoninq requlations pertaininq to parkinq lots, with access only from Victoria Avenue or contiquous parkinq areas. The City shall initiate, process and preserve necessary zone chanqes and requlations as may be necessary to effectuate this paraqraph. q. Plaintiffs city and County aqree to qrant defendant Tribe an exclusive license for the use of Marshall Avenue between Victoria Avenue and the flood control channel for eqress, inqress, landscapinq purposes or 26 09.SANMAN\SETTLE.AGR.10 .. parking lot use. No taxes, license fees or other charges shall be imposed in connection with such use. h. Upon the effective date of this agreement Plaintiffs shall dismiss the Administrative Appeal and Action (including all claims against all additionally named Defendants such as United states of America, Bureau of Indian Affairs, etc.) with prejudice, save and except for those claims in the action against Defendants herein necessary to effectuate this settlement, as set forth more fully in Paragraph 10 hereinbelow. Louis E. Yeager and D. L. Asmus will not thereafter be named plaintiffs in the action. 6. EFFECT ON SUCCESSORS. This agreement and each of its provisions and amendments shall be binding upon and inure to the benefit of any assignee, transferee, successor in interest, estate and heirs or beneficiaries of each party hereto or any person, firm or corporation having or acquiring an interest in the operation, management or profits of the Bingo Project. 7. ASSIGNMENT. This agreement or any interest therein shall not be assigned by any party without the written consent of all parties. Such written consent shall not be unreasonably withheld. 27 09.SANMAN\SETTLE.AGR.10 , 8. AMENDMENTS AND MODIFICATIONS. This aqreement may be amended or modified only by written aqreement siqned by City and County on the one hand and Tribe on the other. Failure of any party to enforce any provision of this aqreement shall not be construed as a waiver of the riqht to compel enforcement of such provision or provisions, nor act to release any party from its obliqations under this aqreement. 9. USE OF SETTLEMENT PROCEEDS BY CITY AND COUNTY. The City and County shall fund the followinq from the initial Two Hundred Thousand Dollar ($200,000) payment received from Defen- dants: 1. Upqradinq of traffic siqnal at Hiqhland and Victoria Avenues to provide a left turn from Victoria Avenue onto Hiqhland Avenue at a cost currently estimated at Fifty Thousand Dollars ($50,000). 2. Provide a barrier on Piedmont Avenue to close off vehicular traffic from Piedmont Avenue onto Victoria Avenue. A portion of said barrier will be desiqned to break away and permit passaqe of emerqency vehicles between Victoria and Piedmont Avenues, at a cost currently estimated at Forty-One Thousand Dollars ($41,000). 28 09.SANMAN\SETTLE.AGR.lO " '. 3. Extend Piedmont Avenue east at a cost currently estimated of One Hundred Thirteen Thousand Dollars ($113,000). 10. AMENDMENTS TO PENDING ACTION; CLASS ACTION. The parties shall stipulate to amend the pleadings, dismiss all of the amended complaint with prejudice (except the portions amended pursuant to stipulation) and to a judgment effecting the within settlement and to certification of a class in which the Indivi- dual will be the class representatives of the class composed of all persons with an ownership interest in parcels of real property allegedly adversely impacted by the Bingo Project, all as set forth in the stipulation and Proposed Order attached as Exhibit "G" hereto. The distribution and application of funds under the class action shall be as determined in accordance with such Stipulation by the Plaintiffs, subject only to the specific obligations of Plaintiffs to make the public improvements set forth above, and shall be matters in which Defendants shall have no interest, liability or obligation. Plaintiffs City, County and Individual, and Defendants, shall seek approval by the Court of the terms of this stipulation. In the event the class action settlement or any other portion of said stipulation is not approved by the Court, said stipulation and this Agreement of Settlement and Compromise shall be deemed void ~ initio and of no force and effect and all consideration transferred hereunder shall be returned to the proper parties. 29 09.SANMAN\SETTLE.AGR.10 " , .. ... 11. INDEPENDENT COUNSEL. In the neqotiations leadinq up to the execution of this Aqreement, each party was represented by counsel of his and its own selection, and in enterinq into and executinq this Aqreement, each party relies only upon his and its own judqment and the advise of his and its own counsel, and not upon any statement, assertion, representation, promise, opinion, or other expression or communication of whatever manner, form or content, made or asserted made by or on behalf of the other party. 12. COMPLETE AGREEMENT OF SETTLEMENT AND COMPROMISE. This instrument is and represents the compromise and settlement of a dispute between the parties. Each party understands that the conclusion of this compromise is not an admission that anythinq is, or is not, otherwise due, or that any claim or defense is, or is not, well founded, but that all such questions and issues are forever foreclosed by the effect of this Aqreement. This instrument is complete within itself, constitutes the full and complete aqreement of the parties on the subject of the compro- mise and settlement of their dispute and any and every other subject and matter herein treated or mentioned. No collateral aqreements of any kind or character have been made or entered into, nothinq of value has been offered, held out or promised or is expected, and no conditions precedent to the effectiveness of this Aqreement exist, exceptinq only such as are set forth within this instrument expressly and in writinq. Paraqraph headinqs 30 09.SANMAN\SETTLE.AGR.10 : ',' ~ , . .~ within this Agreement are provided for convenience of reference only; they are not a part of the Agreement as such and they shall not, and their sequence shall not, affect the meaning or inter- pretation of any provision or provisions in this Agreement. 13. RELEASE. Upon the effective date of this agreement all parties shall, and are hereby deemed to, release all other parties from any and all claims, demands or causes of action relating to or arising out of the Action and the Administrative Appeal. 14. EFFECT OF AGREEMENT. Except as specifically provided herein and in or as a result of any stipulation, amendment, dismissal, judgment or release entered into pursuant hereto or in connection herewith, this agreement shall not supersede, modify or be interpreted to waive any state or federal legislation, law, requlation or ruling, or any judicial or administrative judgment, order or requlation to the extent they are legally applicable to Plaintiffs and Defendants, including but not limited to federally recognized Indian Tribes such as Defendant Tribe. 15. CONSENT TO BE SUED; SOVEREIGN IMMUNITY NOT WAIVED. Tribe hereby consents to be sued for the limited purpose of effecting this settlement or to enforce or interpret the provi- sions of this agreement, subject to the limitations set forth above. Although the Tribe has consented to the jurisdiction of 31 09.SANMAN\SETTLE.AGR.I0 , , , , , , , " .~ the court for certain enumerated purpo.e. herein, such consent is expressly limited as set forth and no waiver of sovereign immunity shall be implied therefrom. All sovereign immunity rights of the Tribe, including its right to refuse to be sued, are hereby reserved, except as provided herein. 16. AGREEMENT TO EXECUTE DOCUMENTS. The parties shall cooperate and exercise their best efforts in effectuating this agreement and shall execute any and all other and further documents necessary in that connection. 17. EFFECTIVE DATE OF AGREEMENT. This agreement shall become effective upon its duly authorized execution by all parties, the "effective date" thereof being the last date of such execution. IN WITNESS WHEREOF, the parties have executed this Agreement() at San Bernardino, California, on the dates indicated below. PLAINTIFFS: Dated:j~/ik., f FlIt City of San Bernardino, a California Charter City ("l~ By , ~ J/u.~ Mayor ,. 32 09.SANMAN\SETTLE.AGR.10 .. .1' .. ., . , Dated: /()-9-1'~ Dated:' / 0- '7~ Dated: 10 - 9/{ . " , , . \ ~".... By ~ Jl;.,t. Chalrman, Council Negotiating Committee ~1'~-~ Member, Councll Negotlating Committee 33 .... .. . . " . .. fI, ,',~, . ., . County of San Bernardino, a California Charter County ("County" ) Dated: /~~~ Dated: /~~ rp DEFENDANTS: San Manuel Band of Mission Indians, A Federally Recognized Indian Tribe ("Tribe") Dated: /()Itj/(, BY-=tJ,C.-.e- ,l.L...D~... \.\\ .1 ~- Western Entertainment Corporation, an Ohio Corporation ("Western Entertainment") Dated: Ip By 09.SANMAN\SETTLE.AGR.lO ~4