TRIBAL-STATE COMPACT
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TRIBAL-STATE COMPACT
BETWEEN
THE STATE OF CALIFORNIA
AND THE
SYCUAN BAND
OF THE
KUMEYAAY NATION
TABLE OF CONTENTS
PREAMBLE
1
Sec. 1.0.
Purpose and Objectives.
2
Sec. 2.0.
Definitions.
3
Sec. 3.0.
Scope of Class III Gaming Authorized.
8
Sec. 3.1.
Authorized Class III Gaming.
8
Sec. 4.0.
Authorized Location of Gaming Facility, Number of Gaming
Devices, Cost Reimbursement, and Mitigation.
9
Sec. 4.1.
Authorized Number of Gaming Devices.
9
Sec. 4.2.
Authorized Gaming Facility.
9
Sec. 4.3.
Special Distribution Fund.
9
Sec. 4.3.1. Use of Special Distribution Funds.
11
Sec. 4.4.
Cost Reimbursement and Mitigation to Local Governments.
11
Sec. 4.5.
Quarterly Payments.
12
Sec. 4.6.
Exclusivity.
15
Sec. 5.0.
Revenue Sharing With Non-Gaming and Limited-Gaming
Tribes.
16
Sec. 5.1.
Definitions.
16
Sec. 5.2.
Payments to the Revenue Sharing Trust Fund or the Tribal
Nation Grant Fund.
18
Credits Related to Payments Due Under Section 5.2.
19
Sec. 5.3.
i
Sec. 6.0.
Licensing.
21
Sec. 6.1.
Gaming Ordinance and Regulations.
21
Sec. 6.2.
Tribal Ownership, Management, and Control of Gaming
Operation.
22
Sec. 6.3.
Prohibitions Regarding Minors.
22
Sec. 6.4.
Licensing Requirements and Procedures.
22
Sec. 6.4.1. Summary of Licensing Principles.
22
Sec. 6.4.2. Gaming Facility.
23
Sec. 6.4.3. Gaming Employees.
27
Sec. 6.4.4. Gaming Resource Suppliers.
29
Sec. 6.4.5. Financial Sources.
31
Sec. 6.4.6. Processing Tribal Gaming License Applications.
35
Sec. 6.4.7. Suitability Standard Regarding Gaming Licenses.
36
Sec. 6.4.8. Background Investigations of Applicants.
36
Sec. 6.4.9. Temporary Licensing of Gaming Employees.
39
Sec. 6.5.0. Tribal Gaming License Issuance.
39
Sec. 6.5.1. Denial, Suspension, or Revocation of Licenses.
40
Sec. 6.5.2. Renewal of Licenses; Extensions; Further Investigation.
41
Sec. 6.5.3. Identification Cards.
41
Sec. 6.5.4. Fees for Tribal Gaming License.
42
Sec. 6.5.5. Suspension of Tribal Gaming License.
42
ii
Sec. 6.5.6. State Determination of Suitability Process.
42
Sec. 6.6.
Submission of New Application.
45
Sec. 7.0.
Approval and Testing of Gaming Devices.
46
Sec. 7.1.
Gaming Device Approval.
46
Sec. 7.2.
Gaming Test Laboratory Selection.
47
Sec. 7.3.
Maintenance of Records of Testing Compliance.
48
Sec. 7.4.
State Gaming Agency Inspections.
48
Sec. 7.5.
Technical Standards.
49
Sec. 7.6.
Transportation of Gaming Devices.
49
Sec. 8.0.
Inspections.
50
Sec. 8.1.
Investigation and Sanctions.
50
Sec. 8.2.
Assistance by State Gaming Agency.
51
Sec. 8.3.
Access to Premises by State Gaming Agency; Notification;
Inspections.
51
Sec. 8.4.
Inspection, Copying and Confidentiality of Documents.
52
Sec. 8.5.
NIGC Audit Reports.
54
Sec. 8.6.
Cooperation with Tribal Gaming Agency.
54
Sec. 8.7.
Compact Compliance Review.
55
Sec. 9.0.
Rules and Regulations for the Operation and Management
of the Gaming Operation and Facility.
55
iii
Sec. 9.1.
Adoption of Regulations for Operation and Management;
Minimum Standards.
55
Sec. 9.1.1. Minimum Internal Control Standards (MICS).
58
Sec. 9.2.
Program to Mitigate Problem Gambling.
61
Sec. 9.3.
Enforcement of Regulations.
62
Sec. 9.4.
State Civil and Criminal Jurisdiction.
62
Sec. 9.5.
Tribal Gaming Agency Members.
62
Sec. 9.6.
Uniform Tribal Gaming Regulations.
65
Sec. 10.0.
Patron Disputes.
67
Sec. 11.0.
Off-Reservation Environmental and Economic Impacts.
69
Sec. 11. 1. Tribal Environmental Impact Report.
69
Sec. 11.2.
Notice of Preparation of Draft TEIR.
72
Sec. 11.3.
Notice of Completion of Draft TEIR.
72
Sec. 11.4.
Issuance of Final TEIR.
73
Sec. 11.5.
Cost Reimbursement to County.
74
Sec. 11.6.
Failure to Prepare Adequate TEIR.
74
Sec. 11.7.
Intergovernmental Agreement.
74
Sec 11.8.
Arbitration.
76
Sec. 12.0.
Public and Workplace Health, Safety, and Liability.
77
Sec. 12.1.
General Requirements.
77
Sec. 12.2.
Tobacco Smoke.
77
iv
Sec. 12.3.
Health and Safety Standards.
77
Sec. 12.4.
Tribal Gaming Facility Standards Ordinance.
85
Sec. 12.5.
Insurance Coverage and Claims.
85
Sec. 12.6.
Participation in State Statutory Programs Related to
Employment.
89
Sec. 12.7.
Emergency Services Accessibility.
91
Sec. 12.8.
Alcoholic Beverage Service.
91
Sec. 12.9.
Possession of Firearms.
92
Sec. 12.10. Labor Relations.
92
Sec. 13.0.
Dispute Resolution Provisions.
92
Sec. 13.1.
Voluntary Resolution; Court Resolution
92
Sec. 13.2.
Arbitration Rules.
93
Sec. 13.3.
No Waiver or Preclusion of Other Means of Dispute
Resolution.
94
Sec. 13.4.
Limited Waiver of Sovereign Immunity.
94
Sec. 14.0.
Effective Date and Term of Compact.
95
Sec. 14.1.
Effective Date.
95
Sec. 14.2.
Term of Compact; Termination.
96
Sec. 15.0.
Amendments; Renegotiations.
96
Sec. 15.1.
Amendment by Agreement.
96
Sec. 15.2.
Negotiations for a New Compact.
97
v
Sec. 15.3
Requests to Amend or to Negotiate a New Compact.
97
Sec. 16.0.
Notices.
97
Sec. 17.0.
Changes to IGRA.
98
Sec. 18.0.
Miscellaneous.
98
Sec. 18.1.
Third Party Beneficiaries.
98
Sec. 18.2.
Complete Agreement.
98
Sec. 18.3.
Construction.
98
Sec. 18.4.
Successor Provisions.
99
Sec. 18.5.
Ordinances and Regulations.
99
Sec. 18.6.
Calculation of Time.
99
Sec. 18.7.
Representations.
99
APPENDICES
A.
Parcels Description and Map of the Sycuan Band of the
Kumeyaay Nation Reservation
A-1
B.
Off-Reservation Environmental Impact Analysis Checklist
B-1
C.
Tribal Labor Relations Ordinance
C-1
D.
Minimum Internal Control Standards
D-1
vi
TRIBAL-STATE COMPACT
BETWEEN THE STATE OF CALIFORNIA AND THE
SYCUAN BAND OF THE KUMEYAAY NATION
The Sycuan Band of the Kumeyaay Nation (Tribe), a federally recognized Indian
tribe and the State of California (State) enter into this tribal-state class III gaming
compact pursuant to the Indian Gaming Regulatory Act of 1988 (IGRA).
PREAMBLE
WHEREAS, in 1999, the Tribe and the State entered into the Tribal-State Compact
Between the State of California and the Sycuan Band of the Kumeyaay Nation
(1999 Compact), which enabled the Tribe, through revenues generated by its
Gaming Operation, to improve the governance, environment, education, health,
safety, and general welfare of its citizens, and to promote a strong tribal
government, self-sufficiency, and provide essential government services to its
citizens; and
WHEREAS, the Tribe is committed to improving the environment, education
status, and the health, safety and general welfare of its members and the
surrounding community; and
WHEREAS, the State and the Tribe recognize that the exclusive rights that the
Tribe will enjoy under this Tribal-State Compact Between the State of California
and the Sycuan Band of the Kumeyaay Nation (Compact) create a unique
opportunity for the Tribe to operate a Gaming Facility in an economic environment
free of competition from the operation of slot machines and banked card games on
non-Indian lands in California and that this unique economic environment is of
great value to the Tribe; and
WHEREAS, in consideration of the exclusive rights enjoyed by the Tribe to
engage in the Gaming Activities and to operate the number of Gaming Devices
specified herein, and the other meaningful concessions offered by the State in good
faith negotiations, and pursuant to IGRA, the Tribe reaffirms its commitment to
provide to the State, on a sovereign-to-sovereign basis, and to local jurisdictions,
fair cost reimbursement and mitigation from revenues from the Gaming Devices
operated pursuant to this Compact on a payment schedule; and
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WHEREAS, the Tribe and the State share an interest in mitigating the offreservation impacts of the Gaming Facility, affording meaningful consumer and
employee protections in connection with the operations of the Gaming Facility,
fairly regulating the Gaming Activities conducted at the Gaming Facility, and
fostering a good-neighbor relationship; and
WHEREAS, the Tribe and the State share a joint sovereign interest in ensuring that
Gaming Activities are free from criminal and other undesirable elements; and
WHEREAS, this Compact will afford the Tribe primary responsibility over the
regulation of its Gaming Facility and will enhance the Tribe’s economic
development and self-sufficiency; and
WHEREAS, the State and the Tribe have therefore concluded that this Compact
protects the interests of the Tribe and its members, the surrounding community,
and the California public, and will promote and secure long-term stability, mutual
respect, and mutual benefits; and
WHEREAS, the State and the Tribe agree that all terms of this Compact are
intended to be binding and enforceable.
NOW, THEREFORE, the Tribe and the State agree as set forth herein:
SECTION 1.0. PURPOSES AND OBJECTIVES.
The terms of this Compact are designed and intended to:
(a)
Evidence the goodwill and cooperation of the Tribe and State in
fostering a mutually respectful government-to-government
relationship that will serve the mutual interests of the parties.
(b)
Enhance and implement a means of regulating Class III Gaming to
ensure its fair and honest operation in a way that protects the interests
of the Tribe, the State, its citizens, and local communities in
accordance with IGRA, and through that regulated Class III Gaming,
enable the Tribe to develop self-sufficiency, promote tribal economic
development, and generate jobs and revenues to support the Tribe’s
government and its governmental services and programs.
2
(c)
Promote ethical practices in conjunction with Class III Gaming,
through the licensing and control of persons and entities employed in,
or providing goods and services to, the Gaming Operation, protect
against the presence or participation of persons whose criminal
backgrounds, reputations, character, or associations make them
unsuitable for participation in gaming, thereby maintaining a high
level of integrity in tribal government gaming, and protect the patrons
and employees of the Gaming Operation and the local communities.
(d)
Achieve the objectives set forth in the preamble.
SECTION 2.0. DEFINITIONS.
Sec. 2.1. “Applicable Codes” means the California Building Code and the
California Public Safety Code applicable to the County, as set forth in titles 19 and
24 of the California Code of Regulations, as those regulations may be amended
during the term of this Compact, including, but not limited to, codes for building,
electrical, energy, mechanical, plumbing, fire and safety. After consultation with
the State, the Tribe may authorize deviations from Applicable Codes if the
deviations would not compromise public safety.
Sec. 2.2. “Applicant” means an individual or entity that applies for a tribal
gaming license or for a State Gaming Agency determination of suitability.
Sec. 2.3. “Association” means an association of California tribal and state
gaming regulators, the membership of which comprises up to two (2)
representatives from each tribal gaming agency of those tribes with whom the State
has a gaming compact under IGRA, and up to two (2) delegates each from the state
Department of Justice, Bureau of Gambling Control and the California Gambling
Control Commission.
Sec. 2.4. “Class III Gaming” means the forms of class III gaming defined in
25 U.S.C. § 2703(8) and by the regulations of the National Indian Gaming
Commission.
Sec. 2.5. “Commission” means the California Gambling Control
Commission, or any successor agency of the State.
Sec. 2.6. “Compact” means this Tribal-State Compact Between the State of
California and the Sycuan Band of the Kumeyaay Nation.
3
Sec. 2.7. “County” means the County of San Diego, California, a political
subdivision of the State.
Sec. 2.8. “Financial Source” means any person or entity who, directly or
indirectly, extends financing in connection with the Tribe’s Gaming Facility or
Gaming Operation.
Sec. 2.9. “Gaming Activity” or “Gaming Activities” means the Class III
Gaming activities authorized under this Compact.
Sec. 2.10. “Gaming Device” means any slot machine within the meaning of
article IV, section 19, subdivision (f) of the California Constitution. For purposes
of calculating the number of Gaming Devices, each player station or terminal on
which a game is played constitutes a separate Gaming Device, irrespective of
whether it is part of an interconnected system to such terminals or stations.
“Gaming Device” includes, but is not limited to, video poker, but does not include
electronic, computer, or other technological aids that qualify as class II gaming (as
defined under IGRA).
Sec. 2.11. “Gaming Employee” means any natural person who (a) conducts,
operates, maintains, repairs, accounts for, or assists in any Gaming Activities, or is
in any way responsible for supervising such Gaming Activities or persons who
conduct, operate, maintain, repair, account for, assist, or supervise any such
Gaming Activities, (b) is in a category under federal or tribal gaming law requiring
licensing, (c) is an employee of the Tribal Gaming Agency with access to
confidential information, or (d) is a person whose employment duties require or
authorize access to areas of the Gaming Facility in which Gaming Activities are
conducted that are not open to the public.
Sec. 2.12. “Gaming Facility” or “Facility” means any building in which
Class III Gaming Activities or Gaming Operations occur, or in which the business
records, receipts, or funds of the Gaming Operation are maintained (but excluding
offsite facilities primarily dedicated to storage of those records, and financial
institutions), and all rooms, buildings, and areas, including hotels, parking lots and
walkways, a principal purpose of which is to serve the activities of the Gaming
Operation rather than providing that operation with an incidental benefit, provided
that nothing herein prevents the conduct of class II gaming (as defined under
IGRA) therein. Nothing herein shall be construed to apply in a manner that does
not directly relate to the operation of Gaming Activities.
4
Sec. 2.13. “Gaming Operation” means the business enterprise that offers
and operates Gaming Activities, whether exclusively or otherwise.
Sec. 2.14. “Gaming Ordinance” means a tribal ordinance or resolution duly
authorizing the conduct of Gaming Activities on the Tribe’s Indian lands in
California and approved under IGRA.
Sec. 2.15. “Gaming Resources” means any goods or services provided or
used in connection with Gaming Activities, whether exclusively or otherwise,
including, but not limited to, equipment, furniture, Gaming Devices and ancillary
equipment, implements of Gaming Activities such as playing cards, furniture
designed primarily for Gaming Activities, maintenance or security equipment and
services, and Class III Gaming consulting services. “Gaming Resources” does not
include professional accounting and legal services.
Sec. 2.16. “Gaming Resource Supplier” means any person or entity who,
directly or indirectly, does, or is deemed likely to, manufacture, distribute, supply,
vend, lease, purvey, or otherwise provide, to the Gaming Operation or Gaming
Facility, at least twenty-five thousand dollars ($25,000) in Gaming Resources in
any twelve (12)-month period, or who, directly or indirectly, receives, or is deemed
likely to receive, in connection with the Gaming Operation or Gaming Facility, at
least twenty-five thousand dollars ($25,000) in any consecutive twelve (12)-month
period, provided that the Tribal Gaming Agency may exclude a purveyor of
equipment or furniture that is not specifically designed for, and is distributed
generally for use other than in connection with, Gaming Activities, if, but for the
purveyance, the purveyor is not otherwise a Gaming Resource Supplier as defined
herein, the compensation received by the purveyor is not grossly disproportionate
to the value of the goods or services provided, and the purveyor is not otherwise a
person who exercises a significant influence over the Gaming Operation.
Sec. 2.17. “Gross Gaming Revenue” means the win from gaming activities,
which is the difference between gaming wins and losses before deducting costs and
expenses or deducting incentives or adjusting for changes in progressive jackpot
liability accruals. Generally, the difference between patron wagers and the payouts
made on winning wagers.
Sec. 2.18. “IGRA” means the Indian Gaming Regulatory Act of 1988 (PL
100-497, 18 U.S.C. §§ 1166-1168 and 25 U.S.C. § 2701 et seq.), and any
amendments thereto, as interpreted by all regulations promulgated thereunder.
5
Sec. 2.19. “Interested Persons” means (a) all local, state, and federal
agencies, which, if a Project were not taking place on Indian lands, would have
responsibility for approving the Project or would exercise authority over the
natural resources that may be affected by the Project, (b) any incorporated city
within eight (8) miles of the Project, and (c) persons, groups, or agencies that
request in writing a notice of preparation of a draft tribal environmental impact
report described in section 11.0, or have commented on the Project in writing to
the Tribe or the County.
Sec. 2.20. “Management Contractor” means any Gaming Resource Supplier
with whom the Tribe has contracted for the management of any Gaming Activity
or Gaming Facility, including, but not limited to, any person who would be
regarded as a management contractor under IGRA.
Sec. 2.21. “NIGC” means the National Indian Gaming Commission.
Sec. 2.22. “Project” means (a) the construction of a proposed Gaming
Facility, or (b) any renovation, expansion or modification of an existing Gaming
Facility, a principal purpose of which is to serve the Gaming Facility rather than
provide that Facility with an incidental benefit, or (c) any other activity occurring
on the reservation, the principal purpose of which is to serve the Gaming Facility
rather than provide that Facility with an incidental benefit and which may cause a
Significant Effect on the Off-Reservation Environment. This definition shall be
understood to include the addition of Gaming Devices within an existing Gaming
Facility if such additional Gaming Devices may cause either a direct or reasonably
foreseeable indirect significant and adverse physical change in the off-reservation
environment, and the impacts of which have not previously been addressed in a
tribal environmental impact report described in section 11.0 or an environmental
evaluation/assessment under a previous compact. For purposes of this definition,
section 11.0, and Appendix B, “reservation” refers to the Tribe’s Indian lands
within the meaning of IGRA or lands otherwise held in trust for the Tribe by the
United States.
Sec. 2.23. “Significant Effect(s) on the Off-Reservation Environment” or
“Significant Effect(s) on the Environment” occur(s) if any of the following
conditions exist:
(a)
A proposed Project has the potential to degrade the quality of the offreservation environment, curtail the range of the environment, or
6
achieve short-term, to the disadvantage of long-term, environmental
goals.
(b)
The possible effects of a Project on the off-reservation environment
are individually limited but cumulatively considerable. As used
herein, “cumulatively considerable” means that the incremental
effects of an individual Project are considerable when viewed in
connection with the effects of past projects, the effects of other current
projects, and the effects of probable future projects.
(c)
The off-reservation environmental effects of a Project will cause
substantial adverse effects on human beings, either directly or
indirectly.
For purposes of this definition, “reservation” refers to the Tribe's Indian lands
within the meaning of IGRA or lands otherwise held in trust for the Tribe by the
United States.
Sec. 2.24. “State” means the State of California or an authorized official or
agency thereof designated by this Compact or by the Governor.
Sec. 2.25. “State Gaming Agency” means the entities authorized to
investigate, approve, regulate and license gaming pursuant to the Gambling
Control Act (chapter 5 (commencing with section 19800) of division 8 of the
California Business and Professions Code), or any successor statutory scheme, and
any entity or entities in which that authority may hereafter be vested.
Sec. 2.26. “State Designated Agency” means the entity or entities
designated or to be designated by the Governor to exercise rights and fulfill
responsibilities established by this Compact.
Sec. 2.27. “Tribe” means the Sycuan Band of the Kumeyaay Nation or an
authorized official or agency thereof.
Sec. 2.28. “Tribal Chair” means the person duly elected under the Tribe’s
constitution to perform the duties specified therein, including serving as the Tribe’s
official representative.
Sec. 2.29. “Tribal Gaming Agency” means the person, agency, board,
committee, commission, or council designated under tribal law, including, but not
7
limited to, an intertribal gaming regulatory agency approved to fulfill those
functions by the NIGC, primarily responsible for carrying out the Tribe’s
regulatory responsibilities under IGRA and the Tribe’s Gaming Ordinance. No
person employed in, or in connection with, the management, supervision, or
conduct of any Gaming Activity may be a member or employee of the Tribal
Gaming Agency.
SECTION 3.0. SCOPE OF CLASS III GAMING AUTHORIZED.
Sec. 3.1. Authorized Class III Gaming.
(a)
The Tribe is hereby authorized and permitted to operate only the
following Gaming Activities under the terms and conditions set forth
in the Compact:
(1)
Gaming Devices.
(2)
Any banking or percentage card games.
(3)
Any devices or games that are authorized under state law to the
California State Lottery, provided that the Tribe will not offer
such games through use of the Internet unless others in the state
not affiliated with or licensed by the California State Lottery are
permitted to do so under state and federal law.
(b)
Nothing herein shall be construed to preclude the Tribe from offering
class II gaming or preclude the negotiation of a separate compact
governing the conduct of off-track wagering at the Tribe’s Gaming
Facility.
(c)
Nothing herein shall be construed to authorize or permit the operation
of any Class III Gaming that the State lacks the power to authorize or
permit under article IV, section 19, subdivision (f), of the California
State Constitution.
(d)
The Tribe shall not engage in Class III Gaming that is not expressly
authorized in this Compact.
8
SECTION 4.0. AUTHORIZED LOCATION OF GAMING FACILITY,
NUMBER OF GAMING DEVICES, COST REIMBURSEMENT, AND
MITIGATION.
Sec. 4.1. Authorized Number of Gaming Devices.
The Tribe is entitled to operate up to a total of two thousand five hundred
(2500) Gaming Devices pursuant to the conditions set forth in section 3.1 and
sections 4.2 through and including section 5.2.
Sec. 4.2. Authorized Gaming Facility.
The Tribe may establish and operate not more than two Gaming Facilities
and engage in Class III Gaming only on eligible Indian lands held in trust for the
Tribe, located within the boundaries of the Tribe’s reservation and trust lands as
those boundaries exist as of the execution date of this Compact, as described in,
and represented on the map at Appendix A hereto, and on which Class III Gaming
may lawfully be conducted under IGRA. If the Tribe chooses to operate more (1)
than one Gaming Facility, then one (1) of the two (2) Gaming Facilities shall have
no more than five hundred (500) Gaming Devices and shall have a primary
purpose other than gaming authorized under IGRA.
Sec. 4.3. Special Distribution Fund.
The Tribe shall pay to the State on a pro rata basis the actual and reasonable
25 U.S.C. § 2710(d)(3)(C) costs the State incurs for the performance of all its
duties under this Compact as determined by the monies appropriated in the annual
Budget Act for the performance of their duties under Class III Gaming compacts
each fiscal year for the Commission, the California Department of Justice, the
Office of the Governor, the California Department of Public Health Programs,
Office of Problem Gambling, the State Controller, the Department of Human
Resources, and the Financial Information System for California, or any agency or
agencies the State designates as a successor to them (Appropriation). The
Appropriation and the maximum number of Gaming Devices operated by all
federally recognized tribes in California pursuant to tribal-state Class III Gaming
compacts determined to be in operation during the previous State fiscal year shall
be reported annually by the State Gaming Agency to the Tribe on December 15.
The term “operated” or “operation” as used in this Compact in relation to Gaming
Devices describes each and every Gaming Device available to patrons (including
slot contestants) for play at any given time. The Tribe’s pro rata share of the
9
State’s 25 U.S.C. § 2710(d)(3)(C) regulatory costs in any given year this Compact
is in effect shall be calculated by the following equation:
The maximum number of Gaming Devices operated in the Tribe’s
Gaming Facility during the previous State fiscal year as determined by
the State Gaming Agency, divided by the maximum number of
Gaming Devices operated by all federally recognized tribes in
California pursuant to tribal-state Class III Gaming compacts during
the previous State fiscal year, multiplied by the Appropriation, equals
the Tribe’s pro rata share.
(a)
Beginning the first full quarter after Class III Gaming commences
under this Compact, the Tribe shall pay its pro rata share to the State
Gaming Agency for deposit into the Indian Gaming Special
Distribution Fund established by the Legislature (Special Distribution
Fund). The payment shall be made in four (4) equal quarterly
installments due on the thirtieth (30th) day following the end of each
calendar quarter, (i.e., by April 30 for the first quarter, July 30 for the
second quarter, October 30 for the third quarter, and January 30 for
the fourth quarter); provided, however, that in the event this Compact
becomes effective during a calendar quarter, payment shall be
prorated for the number of days remaining in that initial quarter, in
addition to any remaining full quarters in the first calendar year of
operation to obtain a full year of full quarterly payments of the Tribe’s
pro rata share specified above. A payment year will run from January
through December. If any portion of the Tribe’s quarterly pro rata
share payment is overdue, the Tribe shall pay to the State for purposes
of deposit into the appropriate fund, the amount overdue plus interest
accrued thereon at the rate of one percent (1%) per month or the
maximum rate permitted by state law for delinquent payments owed
to the State, whichever is less. All quarterly payments shall be
accompanied by the Quarterly Contribution Report specified in
section 4.5, subdivision (b).
(b)
If the Tribe objects to the State’s determination of the Tribe’s pro rata
share, or to the amount of the Appropriation as including matters not
consistent with IGRA, the matter shall be resolved in accordance with
the dispute resolution provisions of section 13.0. Any State
determination of the Tribe’s pro rata share challenged by the Tribe
shall govern and must be paid by the Tribe to the State when due, and
10
the Tribe’s payment is a condition precedent to invoking the section
13.0 dispute resolution provisions.
(c)
The foregoing payments have been negotiated between the parties as a
fair and reasonable contribution, based upon the State’s costs of
regulating and mitigating certain impacts of tribal Class III Gaming
Activities, as well as the Tribe’s market conditions, its circumstances,
and the rights afforded and consideration provided by this Compact.
Sec. 4.3.1. Use of Special Distribution Funds.
Revenue placed in the Special Distribution Fund shall be available for
appropriation by the Legislature for the following purposes:
(a)
Grants, including any administrative costs, for programs designed to
address and treat gambling addiction;
(b)
Grants, including any administrative costs and environmental review
costs, for the support of State and local government agencies impacted
by tribal government gaming;
(c)
Compensation for regulatory costs incurred by the State including, but
not limited to, the Commission, the California Department of Justice,
the Office of the Governor, the California Department of Public
Health Programs, Office of Problem Gambling, the State Controller,
the Department of Human Resources, the Financial Information
System for California, and State Designated Agencies in connection
with the implementation and administration of Class III Gaming
compacts in California; and
(d)
Any other purposes specified by the Legislature that are consistent
with IGRA.
Sec. 4.4. Cost Reimbursement and Mitigation to Local Governments.
The Tribe shall enter into agreements with local jurisdictions or state
agencies, as appropriate, for such undertakings and services that mitigate the
impacts of the Gaming Facility, further the purposes of section 5.3, and thereby
benefit the Gaming Facility, the Tribe, or other affected jurisdictions. Copies of all
such agreements shall be provided to the State. The agreements with local
11
jurisdictions or state agencies, as appropriate, required by this section are distinct
from those agreements associated with a specific Project and required by section
11.0.
Sec. 4.5. Quarterly Payments.
(a)
(b)
(1)
The Tribe shall remit quarterly to the State Gaming Agency (i)
the payments described in section 4.3, for deposit into the
Special Distribution Fund and (ii) the payments described in
section 5.2, for deposit into the Revenue Sharing Trust Fund or
the Tribal Nation Grant Fund.
(2)
If the Gaming Activities authorized by this Compact commence
during a calendar quarter, the first payment shall be due on the
thirtieth (30th) day following the end of the first full quarter of
the Gaming Activities and shall cover the period from the
commencement of the Gaming Activities to the end of the first
full calendar quarter.
(3)
All quarterly payments shall be accompanied by the
certification specified in subdivision (b).
At the time each quarterly payment is due, regardless of whether any
monies are owed, the Tribe shall submit to the State Gaming Agency
a certification (the “Quarterly Contribution Report”) that specifies the
following:
(1)
calculation of the maximum number of Gaming Devices
operated in the Gaming Facility for each day during the given
quarter;
(2)
the Gross Gaming Revenue calculation reflecting the quarterly
Gross Gaming Revenue from the operation of all Gaming
Devices in the Facility;
(3)
the amount due pursuant to section 4.3;
(4)
calculation of the amount due pursuant to section 5.2; and
(5)
the total amount of the quarterly payment paid to the State.
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The Quarterly Contribution Report shall be prepared by the chief
financial officer of the Gaming Operation.
(c)
(d)
(l)
At any time after the fourth quarter, but in no event later than
April 30 of the following calendar year, the Tribe shall provide
to the State Gaming Agency an audited annual certification of
its Gross Gaming Revenue calculation from the operation of
Gaming Devices. The audit shall be conducted in accordance
with generally accepted auditing standards, as applied to audits
for the gaming industry, by an independent certified public
accountant who is not employed by the Tribe, the Tribal
Gaming Agency, the Management Contractor, or the Gaming
Operation, is only otherwise retained by any of these entities to
conduct regulatory audits or independent audits of the Gaming
Operation, and has no financial interest in any of these entities.
The auditor used by the Tribe for this purpose shall be approved
by the State Gaming Agency, or other State Designated
Agency, but the State shall not unreasonably withhold its
consent.
(2)
If the audit shows that the Tribe made an overpayment from its
Gross Gaming Revenue to the State during the year covered by
the audit, the Tribe’s next quarterly payment may be reduced by
the amount of the overage. If the audit shows that the Tribe
made an underpayment to the State during the year covered by
the audit, the Tribe’s next quarterly payment shall be increased
by the amount of the underpayment.
(3)
The State Gaming Agency shall be authorized to confer with
the auditor at the conclusion of the audit process and to review
all of the independent certified public accountant’s final work
papers and documentation relating to the audit. The Tribal
Gaming Agency shall be notified of and provided the
opportunity to participate in and attend any such conference or
document review.
The State Gaming Agency may audit the calculations in subdivision
(b) and Gross Gaming Revenue calculations specified in the audit
provided pursuant to subdivision (c). The State Gaming Agency shall
have access to all records deemed necessary by the State Gaming
13
Agency to verify the calculations in subdivision (b) and Gross
Gaming Revenue calculations, including access to the Gaming Device
accounting systems and server-based systems and software, and to the
data contained therein on a read only basis. If the State Gaming
Agency determines that the Gross Gaming Revenue is understated or
the deductions overstated, it will promptly notify the Tribe and
provide a copy of the audit. The Tribe within twenty (20) days will
either accept the difference or provide reconciliation satisfactory to
the State Gaming Agency. If the Tribe accepts the difference or does
not provide a reconciliation satisfactory to the State Gaming Agency,
the Tribe must immediately pay the amount of the resulting
deficiency, plus accrued interest thereon at the rate of one percent
(1%) per month or the maximum rate permitted by state law for
delinquent payments owed to the State, whichever is less. If the Tribe
does not accept the difference but does not provide a reconciliation
satisfactory to the State Gaming Agency, the Tribe, once payment is
made, may commence dispute resolution under section 13.0. The
parties expressly acknowledge that the certifications provided for in
subdivision (b) are subject to section 8.4, subdivision (h).
(e)
Notwithstanding anything to the contrary in section 13.0, any failure
of the Tribe to remit the payments referenced in subdivision (a), will
entitle the State to immediately seek injunctive relief in federal or
state court, at the State’s election, to compel the payments, plus
accrued interest thereon at the rate of one percent (1%) per month, or
the maximum rate permitted by State law for delinquent payments
owed to the State, whichever is less; and further, the Tribe expressly
consents to be sued in either court and waives its right to assert
sovereign immunity against the State in any such proceeding. Failure
to make timely payment shall be deemed a material breach of this
Compact.
(f)
If any portion of the payments under subdivision (a) of this section is
overdue after the State Gaming Agency has provided written notice to
the Tribe of the overdue amount with an opportunity to cure of at least
fifteen (15) business days, and if more than sixty (60) calendar days
have passed from the due date, then the Tribe shall cease operating all
of its Gaming Devices until full payment is made.
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Sec. 4.6. Exclusivity.
In recognition of the Tribe’s agreement to make the payments specified in
sections 4.3 and 5.2, the Tribe shall have the following rights:
(a)
(b)
In the event the exclusive right of Indian tribes to operate Gaming
Devices in California is abrogated by the enactment, amendment, or
repeal of a State statute or constitutional provision, or the conclusive
and dispositive judicial construction of a statute or the State
Constitution by a California appellate court after the effective date of
this Compact that Gaming Devices may lawfully be operated by
another person, organization, or entity (other than an Indian tribe)
within California, the Tribe shall have the right to exercise one of the
following options:
(1)
Terminate this Compact, in which case the Tribe will lose the
right to operate Gaming Devices and other Class III Gaming
authorized by this Compact; or
(2)
Continue under this Compact with an entitlement to a reduction
of the rates specified in section 5.2 following the conclusion of
negotiations, to provide for: (A) compensation to the State for
the costs of regulation, as set forth in section 4.3; (B)
reasonable payments to local governments impacted by tribal
government gaming, the amount to be determined based upon
any intergovernmental agreement entered into pursuant to
sections 4.4 or 11.7; (C) grants for programs designed to
address and treat gambling addiction; and (D) such assessments
as authorized at such time under federal law. Such negotiations
shall commence within thirty (30) days after receipt of a written
request by a party to enter into negotiations, unless both parties
agree in writing to an extension of time. If the Tribe and the
State fail to reach agreement on the amount of reduction of such
payments within sixty (60) days following commencement of
the negotiations specified in this section, the amount shall be
determined by arbitration pursuant to section 13.2.
Nothing in this section is intended to preclude the California State
Lottery from offering any lottery games or devices that are currently
or may hereafter be authorized by state law.
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SECTION 5.0. REVENUE SHARING WITH NON-GAMING AND
LIMITED-GAMING TRIBES.
Sec. 5.1. Definitions.
For purposes of this section 5.0, the following definitions apply:
(a)
The “Revenue Sharing Trust Fund” is a fund created by the
Legislature and administered by the State Gaming Agency that, as
limited trustee, is not a trustee subject to the duties and liabilities
contained in the California Probate Code, similar state or federal
statutes, rules or regulations, or under state or federal common law or
equitable principles, and has no duties, responsibilities, or obligations
hereunder except for the receipt, deposit, and distribution of monies
paid by gaming tribes for the benefit of Non-Gaming Tribes and
Limited-Gaming Tribes. The State Gaming Agency shall allocate and
disburse the Revenue Sharing Trust Fund monies on a quarterly basis
as specified by the Legislature. Each eligible Non-Gaming Tribe and
Limited-Gaming Tribe in the State shall receive the sum of one
million one hundred thousand dollars ($1,100,000) per year from the
Revenue Sharing Trust Fund. In the event there are insufficient
monies in the Revenue Sharing Trust Fund to pay one million one
hundred thousand dollars ($1,100,000) per year to each eligible NonGaming Tribe and Limited-Gaming Tribe, any available monies in
that fund shall be distributed to eligible Non-Gaming Tribes and
Limited-Gaming Tribes in equal shares. Monies deposited into the
Revenue Sharing Trust Fund in excess of the amount necessary to
distribute one million one hundred thousand dollars ($1,100,000) to
each eligible Non-Gaming Tribe and Limited-Gaming Tribe shall
remain in the Revenue Sharing Trust Fund available for disbursement
in future years and shall not be diverted to any non-Revenue Sharing
Trust Fund or any non-Tribal Nation Grant Fund use or purpose. In
no event shall the State’s general fund be obligated to make up any
shortfall in the Revenue Sharing Trust Fund or to pay any unpaid
claims connected therewith, and, notwithstanding any provision of
law, including any existing provision of law implementing the State
Gaming Agency’s obligations related to the Revenue Sharing Trust
Fund under any Class III Gaming compact, Non-Gaming Tribes and
Limited-Gaming Tribes are not third-party beneficiaries of this
16
Compact and shall have no right to seek any judicial order compelling
disbursement of any Revenue Sharing Trust Fund monies to them.
(b)
The “Tribal Nation Grant Fund” is a fund created by the Legislature to
make discretionary distribution of funds to Non-Gaming Tribes and
Limited-Gaming Tribes upon application of such tribes for purposes
related to effective self-governance, self-determined community, and
economic development. The fiscal operations of the Tribal Nation
Grant Fund are administered by the State Gaming Agency, which acts
as a limited trustee, not subject to the duties and liabilities contained
in the California Probate Code, similar state or federal statutes, rules
or regulations, or under state or federal common law or equitable
principles, and with no duties or obligations hereunder except for the
receipt, deposit, and distribution of monies paid by gaming tribes for
the benefit of Non-Gaming Tribes and Limited-Gaming Tribes, as
those payments are directed by a State Designated Agency. The State
Gaming Agency shall allocate and disburse the Tribal Nation Grant
Fund monies as specified by a State Designated Agency to one or
more eligible Non-Gaming and Limited-Gaming Tribes upon a
competitive application basis. The State Gaming Agency shall
exercise no discretion or control over, nor bear any responsibility
arising from, the recipient tribes’ use or disbursement of Tribal Nation
Grant Fund monies. The State Designated Agency shall perform any
necessary audits to ensure that monies awarded to any tribe are being
used in accordance with their disbursement in relation to the purpose
of the Tribal Nation Grant Fund. In no event shall the State’s general
fund be obligated to pay any monies into the Tribal Nation Grant
Fund or to pay any unpaid claims connected therewith, and,
notwithstanding any provision of law, including any existing
provision of law implementing the State’s obligations related to the
Tribal Nation Grant Fund or the Revenue Sharing Trust Fund under
any Class III Gaming compact, Non-Gaming Tribes and LimitedGaming Tribes are not third-party beneficiaries of this Compact and
shall have no right to seek any judicial order compelling disbursement
of any Tribal Nation Grant Fund monies to them.
(c)
A “Non-Gaming Tribe” is a federally recognized tribe in California,
with or without a tribal-state Class III Gaming compact, that has not
engaged in, or offered, class II gaming or Class III Gaming in any
location whether within or without California, as of the date of
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distribution to such tribe from the Revenue Sharing Trust Fund or the
Tribal Nation Grant Fund, or during the immediately preceding three
hundred sixty-five (365) days.
(d)
A “Limited-Gaming Tribe” is a federally recognized tribe in
California that has a Class III Gaming compact with the State but is
operating fewer than a combined total of three hundred fifty (350)
Gaming Devices in all of its gaming operations wherever located, or
does not have a Class III Gaming compact but is engaged in class II
gaming, whether within or without California, during the immediately
preceding three hundred sixty-five (365) days.
Sec. 5.2. Payments to the Revenue Sharing Trust Fund or the Tribal
Nation Grant Fund.
(a)
If the Tribe operates more than three hundred fifty (350) Gaming
Devices at any time in a given calendar year, it shall thereafter,
including that calendar year, pay to the State Gaming Agency, for
deposit into the Revenue Sharing Trust Fund or the Tribal Nation
Grant Fund, four and three quarters percent (4.75%) of its Gross
Gaming Revenue from the operation of Gaming Devices in excess of
three hundred fifty (350).
(b)
The Tribe shall remit the payments referenced in subdivision (a) to the
State Gaming Agency in quarterly payments, which payments shall be
due thirty (30) days following the end of each calendar quarter (i.e.,
by April 30 for the first quarter, July 30 for the second quarter,
October 30 for the third quarter, and January 30 for the fourth
quarter).
(c)
The quarterly payments referenced in subdivision (b) required by
subdivision (a) and (b), as appropriate, shall be determined by first
determining the total number of all Gaming Devices operated by the
Tribe during a given quarter (Quarterly Device Base). The Quarterly
Device Base is equal to the sum total of the maximum number of
Gaming Devices in operation for each day of the calendar quarter
divided by the number of days in the calendar quarter that the Gaming
Operation operates any Gaming Devices during the given calendar
quarter.
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(d)
If any portion of the payments under subdivision (b) is overdue after
the State Gaming Agency has provided written notice to the Tribe of
the overdue amount with an opportunity to cure of at least fifteen (15)
business days, and if more than sixty (60) calendar days have passed
from the due date, then the Tribe shall cease operating all of its
Gaming Devices until full payment is made.
(e)
All payments made by the Tribe to the State Gaming Agency pursuant
to subdivision (b) shall be deposited into the Revenue Sharing Trust
Fund and the Tribal Nation Grant Fund in a proportion to be
determined by the Legislature, provided that if there are insufficient
monies in the Revenue Sharing Trust Fund to pay one million one
hundred thousand dollars ($1,100,000) per year to each eligible NonGaming Tribe and Limited-Gaming Tribe, the State Gaming Agency
shall deposit all payments into the Revenue Sharing Trust Fund.
Sec. 5.3. Credits Related to Payments Due Under Section 5.2
Notwithstanding anything to the contrary in section 5.2, the State agrees to
provide the Tribe with annual credits for up to sixty percent (60%) of the payments
otherwise due under section 5.2 for the following:
(a)
The costs of services provided by the Tribe or payments made to the
County, local jurisdictions, and non-profit and civic organizations
operating facilities or providing services within the County for fire,
emergency medical services, law enforcement, public transit,
education, tourism, and other services and infrastructure
improvements that in part serve off-reservation needs of County
residents, and not otherwise required by section 11.0. Such payments
shall be subject to approval by the State or State Designated Agency.
At least twenty percent (20%) of the annual credits authorized by this
section 5.3 shall be utilized for the purposes described in this
subdivision (a);
(b)
Non-gaming related capital investments and economic development
projects by the Tribe on or off tribal trust lands that the State or State
Designated Agency agrees provide mutual benefits to the Tribe and
the State because, for instance, they have particular cultural, social or
environmental value, or diversify the sources of revenue for the
Tribe’s general fund;
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(c)
Investments by the Tribe and any funds paid to the State (not
including direct or indirect state or federal funding) in renewable
energy projects that, in part, serve the Gaming Facility, and projects
that incorporate charging stations for electric or other zero emission
vehicles that are available to patrons and employees of the Gaming
Facility, and the Tribe, its members and lineal descendants. For
purposes of this subdivision (e), “renewable energy project” means a
project that utilizes a technology other than a conventional power
source, as defined in section 2805 of the Public Utilities Code, as it
may be amended, and instead uses as a power source biomass,
geothermal, small hydroelectric, solar, or wind, as those power
sources are defined in section 1391, subdivision (c), of title 20 of the
California Code of Regulations, as they may be amended. The power
source must not utilize more than twenty-five percent (25%) fossil
fuel;
(d)
Payments (not including direct or indirect state or federal funding) to
support capital improvements and operating expenses for facilities
located on the Reservation or within California that provide health
care services to tribal members, Indians, and non-Indians; and
(e)
Investments by the Tribe and any funds paid to the State (not
including direct or indirect state or federal funding) in water treatment
or conservation projects that, in part, serve the Gaming Facility.
On or before January 1 of each year, the Tribe shall provide to the State its annual
budget, for items eligible for credits under this section 5.3. Upon receipt, the State
shall have ninety (90) days within which to review the items proposed and object if
they do not meet the purposes set out in this section. If the State does not object to
the items proposed within ninety (90) days, the State shall not later seek to
disallow those credits excepts as provided below. During the year, the Tribe shall
take such credits during the first three quarters in prorated amounts based on the
annual budget, but during the fourth quarter shall take an adjusted amount based on
actual amounts spent. At the end of each year, the Tribe shall submit to the State a
budget reconciliation, reflecting the actual amounts expended versus budget
numbers. The State shall have the right to review the credits taken and, if
necessary, request additional information from the Tribe. If the State determines
that the information provided does not substantiate the amount of credits taken, the
State may reduce or disallow such credits. Any disputes shall be subject to the
20
dispute resolution provisions of section 13.0 of this Compact. All excess credits
that cannot be applied in any one (1) year shall carry forward to all following years
until completely exhausted. If in any year during the term of this Compact the
Tribe is unable to take the full sixty percent (60%) credit and all carry-forward
credits have been exhausted, the Tribe may request and the State shall agree to, a
reopening of negotiations, limited to section 5.2, subdivision (a).
SECTION 6.0. LICENSING.
Sec. 6.1. Gaming Ordinance and Regulations.
(a)
All Gaming Activities conducted under this Compact shall, at a
minimum, comply (i) with a Gaming Ordinance duly adopted by the
Tribe and approved in accordance with IGRA, (ii) with all rules,
regulations, procedures, specifications, and standards duly adopted by
the NIGC, the Tribal Gaming Agency, and the State Gaming Agency,
and (iii) with the provisions of this Compact.
(b)
The Tribal Gaming Agency shall make available for inspection by the
State Gaming Agency upon request a copy of the Gaming Ordinance,
and all of its rules, regulations, procedures, specifications, ordinances,
or standards applicable to the Gaming Activities and Gaming
Operation, but excluding the Tribal Gaming Agency’s internal
policies and procedures. The Tribal Gaming Agency shall give notice
to the State Gaming Agency of any change or amendment to the
Gaming Ordinance, or the Tribal Gaming Agency’s rules, regulations,
procedures, specifications, ordinances, or standards applicable to the
Gaming Activities and Gaming Operation, no later than thirty (30)
days after the change or amendment.
(c)
The Tribal Gaming Agency shall make the following documents
available in hard copy or on the Gaming Facility’s website to its
patrons or their legal representatives: the Gaming Ordinance; the rules
of each Class III game operated by the Tribe, to the extent that such
rules are not available for display on the Gaming Device or the table
on which the game is played; tribal law, to the extent it impacts the
public in relation to the Gaming Activities; the tort ordinance
specified in section 12.5, subdivision (b); the employment
discrimination complaint ordinance specified in section 12.3,
subdivision (f); the regulations promulgated by the Tribal Gaming
21
Agency concerning patron disputes pursuant to section 10.0; and the
NIGC minimum internal control standards and this Compact,
including all appendices hereto
Sec. 6.2. Tribal Ownership, Management, and Control of Gaming
Operation.
The Gaming Operation authorized under this Compact shall be owned solely
by the Tribe.
Sec. 6.3. Prohibitions Regarding Minors.
(a)
The Tribe shall prohibit persons under the age of eighteen (18) years
from being present in any room or area in which Gaming Activities
are being conducted unless the person is en route to a non-gaming
area of the Gaming Facility, or is employed at the Gaming Facility in
a capacity other than as a Gaming Employee.
(b)
If the Tribe permits the consumption of alcoholic beverages in the
Gaming Facility, the Tribe shall prohibit persons under the age of
twenty-one (21) years from purchasing, consuming, or possessing
alcoholic beverages. The Tribe shall also prohibit persons under the
age of twenty-one (21) years from being present in any room or area
in which alcoholic beverages may be consumed, except to the extent
permitted by the State Department of Alcoholic Beverage Control for
other commercial establishments serving alcoholic beverages.
Sec. 6.4. Licensing Requirements and Procedures.
Sec. 6.4.1. Summary of Licensing Principles.
All persons in any way connected with the Gaming Operation or Gaming
Facility who are required to be licensed or to submit to a background investigation
under IGRA, and any others required to be licensed under this Compact, including,
without limitation, all Gaming Employees, Gaming Resource Suppliers, Financial
Sources, and any other person having a significant influence over the Gaming
Operation, must be licensed by the Tribal Gaming Agency and cannot have had
any determination of suitability denied or revoked by the State Gaming Agency.
The parties intend that the licensing process provided for in this Compact shall
22
involve joint cooperation between the Tribal Gaming Agency and the State
Gaming Agency, as more particularly described herein.
Sec. 6.4.2. Gaming Facility.
(a)
The Gaming Facility authorized by this Compact shall be licensed by
the Tribal Gaming Agency in conformity with the requirements of this
Compact, the Tribe’s Gaming Ordinance, IGRA, and any applicable
regulations adopted by the NIGC. The license shall be reviewed and
renewed every two (2) years thereafter. Verification that this
requirement has been met shall be provided by the Tribe to the State
by sending a copy of the initial license and each renewal license to the
State Gaming Agency within twenty (20) days after issuance of the
license or renewal. The Tribal Gaming Agency’s certification that the
Gaming Facility is being operated in conformity with these
requirements shall be posted in a conspicuous and public place in the
Gaming Facility at all times.
(b)
To assure the protection of the health and safety of all Gaming Facility
patrons, guests, and employees, the Tribe shall adopt, or has already
adopted, and shall maintain throughout the term of this Compact, an
ordinance that requires any Gaming Facility construction to meet or
exceed the Applicable Codes. The Gaming Facility and construction,
expansion, improvement, modification, or renovation will also comply
with the federal Americans with Disabilities Act, P.L. 101-336, as
amended, 42 U.S.C. § 12101 et seq. Notwithstanding the foregoing,
the Tribe need not comply with any standard that specifically applies
in name or in fact only to tribal facilities. Without limiting the rights
of the State under this section, reference to Applicable Codes is not
intended to confer jurisdiction upon the State or its political
subdivisions. For purposes of this section, the terms “building
official” and “code enforcement agency” as used in titles 19 and 24 of
the California Code of Regulations mean the Tribal Gaming Agency or
such other tribal government agency or official as may be designated
by the Tribe’s law.
(c)
To assure compliance with the Applicable Codes, in all cases where
those codes would otherwise require a permit, the Tribe shall employ
for any Gaming Facility construction qualified plan checkers or review
firms. To be qualified as a plan checker or review firm for purposes of
23
this Compact, plan checkers or review firms must be either California
licensed architects or engineers with relevant experience, or California
licensed architects or engineers on the list, if any, of approved plan
checkers or review firms provided by the city or county in which the
Gaming Facility is located. The Tribe shall also employ qualified
project inspectors. To be qualified as a project inspector for purposes
of this Compact, project inspectors must possess the same
qualifications and certifications as project inspectors utilized by the
county in which the Gaming Facility is located. The plan checkers,
review firms, and project inspectors shall hereinafter be referred to as
“Inspector(s).” The Tribe shall require the Inspectors to report in
writing any failure to comply with the Applicable Codes to the Tribal
Gaming Agency and the State Gaming Agency.
(d)
The Tribe shall cause the design and construction calculations, and
plans and specifications that form the basis for the construction (the
“Design and Building Plans”) to be available to the State Gaming
Agency for inspection and copying by the State Gaming Agency upon
its request.
(e)
In the event that material changes to a structural detail of the Design
and Building Plans will result from contract change orders or any
other changes in the Design and Building Plans, such changes shall be
reviewed by the qualified plan checker or review firm and field
verified by the Inspectors for compliance with the Applicable Codes.
(f)
The Tribe shall maintain during construction all other contract change
orders for inspection and copying by the State Gaming Agency upon
its request.
(g)
The Tribe shall maintain the Design and Building Plans depicting the
as-built Gaming Facility, which shall be available to the State Gaming
Agency for inspection and copying by the State Gaming Agency upon
its request, for the term of this Compact.
(h)
Upon final certification by the Inspectors that the Gaming Facility
meets the Applicable Codes, the Tribal Gaming Agency shall forward
the Inspectors’ certification to the State Gaming Agency within ten
(10) days of issuance. If the State Gaming Agency objects to that
certification, the Tribe shall make a good faith effort to address the
24
State’s concerns, but if the State Gaming Agency does not withdraw
its objection, the matter will be resolved in accordance with the
dispute resolution provisions of section 13.0.
(i)
Any failure to remedy within a reasonable period of time any material
and timely raised deficiency shall be deemed a violation of this
Compact, and furthermore, any deficiency that poses a serious or
significant risk to the health or safety of any occupant shall be
grounds for the State Gaming Agency to prohibit occupancy of the
affected portion of the Gaming Facility pursuant to a court order until
the deficiency is corrected. The Tribe shall not allow occupancy of
any portion of the Gaming Facility that is constructed or maintained in
a manner that endangers the health or safety of the occupants.
(j)
The Tribe shall also take all necessary steps to reasonably ensure the
ongoing availability of sufficient and qualified fire suppression
services to the Gaming Facility, and to reasonably ensure that the
Gaming Facility satisfies all requirements of titles 19 and 24 of the
California Code of Regulations applicable to similar facilities in the
County as set forth below:
(1)
Not less than thirty (30) days before the commencement of the
Gaming Activities, and not less than biennially thereafter, and
upon at least ten (10) days’ notice to the State Gaming Agency,
the Gaming Facility shall be inspected, at the Tribe’s expense,
by an independent expert for purposes of certifying that the
Gaming Facility meets a reasonable standard of fire safety and
life safety.
(2)
The State Gaming Agency shall be entitled to designate and
have a qualified representative or representatives, which may
include local fire suppression entities, present during the
inspection. During such inspection, the State’s
representative(s) shall specify to the independent expert any
condition which the representative(s) reasonably believes would
preclude certification of the Gaming Facility as meeting a
reasonable standard of fire safety and life safety.
(3)
The independent expert shall issue to the Tribal Gaming
Agency and the State Gaming Agency a report on the
25
inspection within fifteen (15) days after its completion, or
within thirty (30) days after commencement of the inspection,
whichever first occurs, identifying any deficiency in fire safety
or life safety at the Gaming Facility or in the ability of the Tribe
to meet reasonably expected fire suppression needs of the
Gaming Facility.
(4)
Within twenty-one (21) days after the issuance of the report, the
independent expert shall also require and approve a specific
plan for correcting deficiencies, whether in fire safety or life
safety, at the Gaming Facility or in the Tribe’s ability to meet
the reasonably expected fire suppression needs of the Gaming
Facility, including those identified by the State Gaming
Agency’s representatives. A copy of the report shall be
delivered to the State Gaming Agency and the Tribal Gaming
Agency.
(5)
Immediately upon correction of all deficiencies identified in the
report, the independent expert shall certify in writing to the
Tribal Gaming Agency and the State Gaming Agency that all
deficiencies have been corrected.
(6)
Any failure to correct all deficiencies identified in the report
within a reasonable period of time shall be a violation of this
Compact, and any failure to promptly correct those deficiencies
that pose a serious or significant risk to the health or safety of
any occupants shall be a violation of this Compact and grounds
for the State Gaming Agency to prohibit occupancy of the
affected portion of the Gaming Facility pursuant to court order
until the deficiency is corrected.
(7)
Consistent with its obligation to ensure the safety of those
within the Gaming Facility, the Tribe shall promptly notify the
State Gaming Agency of circumstances that pose a serious and
significant risk to the health or safety of occupants and take
prompt action to correct such circumstances. Any failure to
remedy within a reasonable period of time any serious and
significant risk to public safety shall be deemed a violation of
this Compact, and furthermore, any circumstance that poses a
serious or significant risk to the health or safety of any occupant
26
shall be grounds for the State Gaming Agency to prohibit
occupancy of the affected portion of the Gaming Facility
pursuant to a court order until the deficiency is corrected.
(k)
Notwithstanding anything in section 6.4 or elsewhere in this Compact,
any construction of any Project that has taken place or has
commenced prior to the effective date of this Compact shall be subject
to the facility license rules in section 6.4.2 of the 1999 Compact,
provided that the Project was previously approved under section 6.4.2
of that compact.
Sec. 6.4.3. Gaming Employees.
(a)
Every Gaming Employee shall obtain, and thereafter maintain current,
a valid tribal gaming license, and except as provided in subdivision
(b), shall obtain, and thereafter maintain current, a State Gaming
Agency determination of suitability, which license and determination
shall be subject to biennial renewal; provided that in accordance with
section 6.4.9, those persons may be employed on a temporary or
conditional basis pending completion of the licensing process and the
State Gaming Agency determination of suitability.
(b)
A Gaming Employee who is required to obtain and maintain current a
valid tribal gaming license under subdivision (a) is not required to
obtain or maintain a State Gaming Agency determination of suitability
if any of the following applies:
(1)
The employee is subject to the licensing requirement of
subdivision (a) solely because he or she is a person who
conducts, operates, maintains, repairs, or assists in Gaming
Activities, provided that this exception shall not apply if he or
she supervises Gaming Activities or persons who conduct,
operate, maintain, repair, assist, account for or supervise any
such Gaming Activity, and is empowered to make discretionary
decisions affecting the conduct of the Gaming Activities.
(2)
The employee is subject to the licensing requirement of
subdivision (a) solely because he or she is a person whose
employment duties require or authorize access to areas of the
Gaming Facility that are not open to the public, provided that
27
this exception shall not apply if he or she supervises Gaming
Activities or persons who conduct, operate, maintain, repair,
assist, account for or supervise any such Gaming Activity, and
is empowered to make discretionary decisions affecting the
conduct of the Gaming Activities.
(3)
The State Gaming Agency, in consultation with the Tribal
Gaming Agency, exempts the Gaming Employee from the
requirement to obtain or maintain current a State Gaming
Agency determination of suitability.
(c)
Notwithstanding subdivision (b), where the State Gaming Agency
determines it is reasonably necessary, the State Gaming Agency is
authorized to review the tribal license application, and all materials
and information received by the Tribal Gaming Agency in connection
therewith, for any person whom the Tribal Gaming Agency has
licensed, or proposes to license, as a Gaming Employee. If the State
Gaming Agency determines that the person would be unsuitable for
issuance of a license or permit for a similar level of employment in a
gambling establishment subject to the jurisdiction of the State, it shall
notify the Tribal Gaming Agency of its determination and the reasons
supporting its determination. The Tribal Gaming Agency shall
thereafter conduct a hearing in accordance with section 6.5.5 to
reconsider issuance of the tribal gaming license and shall notify the
State Gaming Agency of its determination immediately after the
hearing, which shall be final unless made the subject of dispute
resolution pursuant to section 13.0 within thirty (30) days of such
notification.
(d)
The Tribe shall not employ, or continue to employ, any person whose
application to the State Gaming Agency for a determination of
suitability or for a renewal of such a determination has been denied, or
whose determination of suitability has expired without renewal.
(e)
At any time after five (5) years following the effective date of this
Compact, either party to this Compact may request renegotiation of
the scope of coverage of subdivision (b).
(f)
This section shall not apply to members of the Tribal Gaming Agency.
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Sec. 6.4.4. Gaming Resource Suppliers.
(a)
Every Gaming Resource Supplier shall be licensed by the Tribal
Gaming Agency prior to the sale, lease, or distribution, or further sale,
lease, or distribution, of any Gaming Resources to or in connection
with the Tribe’s Gaming Operation or Gaming Facility. Unless the
Tribal Gaming Agency licenses the Gaming Resource Supplier
pursuant to subdivision (d), the Gaming Resource Supplier shall also
apply to, and the Tribe shall require it to apply to, the State Gaming
Agency for a determination of suitability at least thirty (30) days,
unless such thirty (30) days is shortened by the Tribal Gaming
Agency, prior to the sale, lease, or distribution, or further sale, lease,
or distribution, of any Gaming Resources to or in connection with the
Tribe’s Gaming Operation or Gaming Facility, except that for Gaming
Devices the period specified under section 7.1, subdivision (a)(1),
shall govern. The period during which a determination of suitability
as a Gaming Resource Supplier is valid expires on the earlier of (i) the
date two (2) years following the date on which the determination is
issued, unless a different expiration date is specified by the State
Gaming Agency, or (ii) the date of its revocation by the State Gaming
Agency. If the State Gaming Agency denies or revokes a
determination of suitability, the Tribal Gaming Agency shall
immediately deny or revoke the license and shall not reissue any
license to that Gaming Resource Supplier unless and until the State
Gaming Agency makes a determination that the Gaming Resource
Supplier is suitable. The license and determination of suitability shall
be reviewed at least every two (2) years for continuing compliance.
For purposes of section 6.5.2, such a review shall be deemed to
constitute an application for renewal. In connection with such a
review, the Tribal Gaming Agency shall require the Gaming Resource
Supplier to update all information provided in the previous
application.
(b)
Any agreement between the Tribe and a Gaming Resource Supplier
shall include a provision for its termination without further liability on
the part of the Tribe, except for the bona fide payment of all
outstanding sums (exclusive of interest) owed as of, or payment for
services or materials received up to, the date of termination, upon
revocation or non-renewal of the Gaming Resource Supplier’s license
by the Tribal Gaming Agency based on a determination of
29
unsuitability by the State Gaming Agency. Except as set forth above,
the Tribe shall not enter into, or continue to make payments to a
Gaming Resource Supplier pursuant to, any contract or agreement for
the provision of Gaming Resources with any person or entity whose
application to the State Gaming Agency for a determination of
suitability has been denied or revoked or whose determination of
suitability has expired without renewal.
(c)
Notwithstanding subdivision (a), the Tribal Gaming Agency may
license a Management Contractor for a period of no more than seven
(7) years, but the Management Contractor must still apply for renewal
of a determination of suitability by the State Gaming Agency at least
every two (2) years and where the State Gaming Agency denies or
revokes a determination of suitability, the Tribal Gaming Agency
shall immediately deny or revoke the license. Except for where the
State Gaming Agency has denied or revoked its determination of
suitability, nothing in this subdivision shall be construed to bar the
Tribal Gaming Agency from issuing additional new licenses to the
same Management Contractor following the expiration of a seven (7)year license.
(d)
The Tribal Gaming Agency may elect to license a person or entity as a
Gaming Resource Supplier without requiring it to apply to the State
Gaming Agency for a determination of suitability under subdivision
(a) if the Gaming Resource Supplier has already been issued a
determination of suitability that is then valid. In that case, the Tribal
Gaming Agency shall immediately notify the State Gaming Agency of
its licensure of the person or entity as a Gaming Resource Supplier,
and shall identify in its notification the State Gaming Agency
determination of suitability on which the Tribal Gaming Agency has
relied in proceeding under this subdivision (d). Subject to the Tribal
Gaming Agency’s compliance with the requirements of this
subdivision, a Gaming Resource Supplier licensed under this
subdivision may, during and only during the period in which the
determination of suitability remains valid, engage in the sale, lease, or
distribution of Gaming Resources to or in connection with the Tribe’s
Gaming Operation or Facility, without applying to the State Gaming
Agency for a determination of suitability. The issuance of a license
under this subdivision is in all cases subject to any later determination
by the State Gaming Agency that the Gaming Resource Supplier is
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not suitable or to a tribal gaming license suspension or revocation
pursuant to section 6.5.1, and does not extend the time during which
the determination of suitability relied on by the Tribal Gaming
Agency is valid. A license issued under this subdivision expires upon
the revocation or expiration of the determination of suitability relied
on by the Tribal Gaming Agency. Nothing in this subdivision affects
the obligations of the Tribal Gaming Agency, or of the Gaming
Resource Supplier, under section 6.5.2 and section 6.5.6 of this
Compact.
(e)
Except where subdivision (d) applies, within twenty-one (21) days of
the issuance of a license to a Gaming Resource Supplier, the Tribal
Gaming Agency shall transmit to the State Gaming Agency a copy of
the license and a copy of all tribal license application materials and
information received by it from the Applicant which is not otherwise
prohibited or restricted from disclosure under applicable federal law
or regulation.
Sec. 6.4.5. Financial Sources.
(a)
Subject to subdivision (g) of this section 6.4.5, each Financial Source
shall be licensed by the Tribal Gaming Agency prior to the Financial
Source extending financing in connection with the Tribe’s Gaming
Facility or Gaming Operation.
(b)
Every Financial Source required to be licensed by the Tribal Gaming
Agency shall, contemporaneously with the filing of its tribal license
application, apply to the State Gaming Agency for a determination of
suitability. In the event the State Gaming Agency denies the
determination of suitability, the Tribal Gaming Agency shall
immediately deny or revoke the Financial Source’s license.
(c)
A license issued under this section 6.4.5 shall be reviewed at least
every two (2) years for continuing compliance. In connection with
that review, the Tribal Gaming Agency shall require the Financial
Source to update all information provided in the Financial Source’s
previous application. For purposes of this section 6.5.2, that review
shall be deemed to constitute an application for renewal.
(d)
Any agreement between the Tribe and a Financial Source shall
include, and shall be deemed to include, a provision for its termination
31
without further liability on the part of the Tribe, except for the bona
fide repayment of all outstanding sums (exclusive of interest) owed as
of the date of termination upon revocation or non-renewal of the
Financial Source’s license by the Tribal Gaming Agency based on a
determination of unsuitability by the State Gaming Agency. The
Tribe shall not enter into, or continue to make payments pursuant to,
any contract or agreement for the provision of financing with any
person whose application to the State Gaming Agency for a
determination of suitability has been denied or revoked or has expired
without renewal.
(e)
A Gaming Resource Supplier who provides financing exclusively in
connection with the provision, sale, or lease of Gaming Resources
obtained from that Gaming Resource Supplier may be licensed solely
in accordance with licensing procedures applicable, if at all, to
Gaming Resource Suppliers, and need not be separately licensed as a
Financial Source under this section.
(f)
Within twenty-one (21) days of the issuance of a license to a Financial
Source, the Tribal Gaming Agency shall transmit to the State Gaming
Agency a copy of the license. Upon issuance of a license, the Tribal
Gaming Agency shall direct the Financial Source licensee to transmit
to the State Gaming Agency a copy of all license application materials
and information submitted to the Tribal Gaming Agency within
twenty-one (21) days.
(g)
(1)
The Tribal Gaming Agency may, at its discretion, exclude from
the licensing requirements of this section, the following
Financial Sources under the circumstances stated.
(A)
A federally-regulated or state-regulated bank, savings
and loan association, or other federally- or state-regulated
lending institution.
(B)
An entity identified by Regulation CGCC-2, subdivision
(f) (as in effect on July 1, 2006) of the Commission,
when that entity is a Financial Source solely by reason of
being (i) a purchaser or a holder of debt securities issued
directly or indirectly by the Tribe for a Gaming Facility
or for the Gaming Operation or (ii) the owner of a
participation interest in any amount of indebtedness for
32
which a Financial Source described in subdivision
(g)(1)(A), or any fund or other investment vehicle which
is administered or managed by any such Financial
Source, is the creditor.
(2)
(C)
An investor who, alone or together with any person
controlling, controlled by or under common control with
such investor, holds less than ten percent (10%) of all
outstanding debt securities issued directly or indirectly by
the Tribe for a Gaming Facility or for the Gaming
Operation.
(D)
An agency of the federal, State, tribal or local
government providing financing, together with any
person purchasing any debt securities of the agency to
provide such financing.
(E)
A real estate investment trust (as defined in 26 U.S.C. §
856(a)) which is publicly traded on a stock exchange,
registered with the Securities and Exchange Commission,
and subject to regulatory oversight of the Securities and
Exchange Commission.
(F)
An entity or category of entities that the State Gaming
Agency and the Tribal Gaming Agency jointly determine
can be excluded from the licensing requirements of this
section 6.4.5 without posing a threat to the public interest
or the integrity of the Gaming Operation.
In any case where the Tribal Gaming Agency elects to exclude
a Financial Source from the licensing requirements of this
section, the Tribal Gaming Agency shall give prompt notice
thereof to the State Gaming Agency, shall give reasonable
advance notice of any extension of financing by the Financial
Source in connection with the Tribe’s Gaming Operation or
Facility, and upon request of the State Gaming Agency, shall
provide it with all documentation supporting the Tribal Gaming
Agency’s exclusion of the Financial Source from the licensing
requirements of this section 6.4.5. The Tribal Gaming Agency
and the State Gaming Agency shall confer and make good faith
33
efforts to promptly resolve any dispute regarding the Tribal
Gaming Agency’s decision to exclude a Financial Source from
the licensing requirements of this section. Any dispute
regarding a decision to exclude a Financial Source from the
licensing requirements of this section that cannot be promptly
resolved by the Tribal Gaming Agency and the State Gaming
Agency shall be resolved through the Dispute Resolution
provisions in section 13.0.
(h)
(3)
Notwithstanding subdivision (g)(1), the Tribal Gaming Agency
and the State Gaming Agency shall work collaboratively to
resolve any reasonable concerns regarding the ongoing
excludability of an individual or entity as a Financial Source.
Any dispute between the Tribal Gaming Agency and the State
Gaming Agency pertaining to the excludability of an individual
or entity as a Financial Source shall be resolved by the Dispute
Resolution provisions in section 13.0.
(4)
The following are not Financial Sources for purposes of this
section 6.4.5.
(A)
An entity identified by Regulation CGCC-2, subdivision
(h) (as in effect on July 1, 2006) of the Commission.
(B)
A person or entity whose sole connection with a
provision or extension of financing to the Tribe is to
provide loan brokerage or debt servicing for a Financial
Source at no cost to the Tribe or the Gaming Operation,
provided that no portion of any financing provided is an
extension of credit to the Tribe or the Gaming Operation
by that person or entity.
In recognition of changing financial circumstances, this section 6.4.5
shall be subject to good faith renegotiation upon request of either
party in or after five (5) years from the effective date of this Compact;
provided such renegotiation shall not retroactively affect transactions
that have already taken place where the Financial Source has been
excluded or exempted from licensing requirements.
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Sec. 6.4.6. Processing Tribal Gaming License Applications.
(a)
Each Applicant for a tribal gaming license shall submit the completed
application along with the required information and an application fee,
if required, to the Tribal Gaming Agency in accordance with the rules
and regulations of that agency.
(b)
At a minimum, the Tribal Gaming Agency shall require submission
and consideration of all information required under IGRA, including
part 556.4 of title 25 of the Code of Federal Regulations, for licensing
primary management officials and key employees.
(c)
For Applicants that are business entities, these licensing provisions
shall apply to the entity as well as: (i) each of its officers and
directors; (ii) each of its principal management employees, including
any chief executive officer, chief financial officer, chief operating
officer, and general manager; (iii) each of its owners, members, or
partners, if an unincorporated business; (iv) each of its shareholders
who owns more than ten percent (10%) of the shares of the
corporation, if a corporation, or who has a direct controlling interest in
the Applicant; and (v) each person or entity (other than a Financial
Source that the Tribal Gaming Agency has determined does not
require a license under section 6.4.5) that, alone or in combination
with others, has provided financing in connection with any Gaming
Operation or Class III Gaming authorized under this Compact, if that
person or entity provided more than ten percent (10%) of either the
start-up capital or the operating capital, or of a combination thereof,
over a twelve (12)-month period. For purposes of this subdivision,
where there is any commonality of the characteristics identified in this
section 6.4.6, subdivisions (c)(i) through (c)(v), inclusive, between
any two (2) or more entities, those entities may be deemed to be a
single entity. For purposes of this subdivision, a direct controlling
interest in the Applicant referred to in subdivision (c)(iv) excludes any
passive investor or anyone who has an indirect or only a financial
interest and does not have ability to control, manage or direct the
management decisions of the Applicant.
(d)
Nothing herein precludes the Tribe or Tribal Gaming Agency from
requiring more stringent licensing requirements.
35
Sec. 6.4.7. Suitability Standard Regarding Gaming Licenses.
(a)
In reviewing an application for a tribal gaming license, and in addition
to any standards set forth in the Tribe’s Gaming Ordinance, the Tribal
Gaming Agency shall consider whether issuance of the license is
inimical to public health, safety, or welfare, and whether issuance of
the license will undermine public trust that the Tribe’s Gaming
Operation is free from criminal and dishonest elements and would be
conducted honestly.
(b)
A license may not be issued unless, based on all information and
documents submitted, the Tribal Gaming Agency is satisfied that the
Applicant, and in the case of an entity, each individual identified in
section 6.4.6, meets all the following requirements:
(1)
The person is of good character, honesty, and integrity.
(2)
The person’s prior activities, criminal record (if any),
reputation, habits, and associations do not pose a threat to the
public interest or to the effective regulation and control of
gaming, or create or enhance the dangers of unsuitable, unfair,
or illegal practices, methods, or activities in the conduct of
gaming, or in the carrying on of business and financial
arrangements incidental thereto.
(3)
The person is in all other respects qualified to be licensed as
provided, and meets the criteria established in this Compact,
IGRA, NIGC regulations, the Tribe’s Gaming Ordinance, and
any other criteria adopted by the Tribal Gaming Agency or the
Tribe; provided, however, an Applicant shall not be found to be
unsuitable solely on the ground that the Applicant was an
employee of a tribal gaming operation in California that was
conducted prior to May 16, 2000.
Sec. 6.4.8. Background Investigations of Applicants.
(a)
The Tribal Gaming Agency shall conduct or cause to be conducted all
necessary background investigations reasonably required to determine
that the Applicant is qualified for a gaming license under the
standards set forth in section 6.4.7, and to fulfill all requirements for
36
licensing under IGRA, NIGC regulations, the Tribe’s Gaming
Ordinance, and this Compact. The Tribal Gaming Agency shall not
issue a gaming license, other than a temporary license pursuant to
section 6.4.9, until a determination is made that those qualifications
have been met.
(b)
In lieu of completing its own background investigation, and to the
extent that doing so does not conflict with or violate IGRA or the
Tribe’s Gaming Ordinance, the Tribal Gaming Agency may contract
with the State Gaming Agency for the conduct of background
investigations, may rely on a State determination of suitability
previously issued under a Class III Gaming compact involving
another tribe and the State, or may rely on a State Gaming Agency
license previously issued to the Applicant, to fulfill some or all of the
Tribal Gaming Agency’s background investigation obligations.
(c)
If the Tribal Gaming Agency contracts with the State Gaming Agency
for the conduct of background investigations, then an Applicant for a
tribal gaming license shall be required to provide releases to the State
Gaming Agency to make available to the Tribal Gaming Agency
background information regarding the Applicant. The State Gaming
Agency shall cooperate in furnishing to the Tribal Gaming Agency
that information, unless doing so would violate state or federal law,
would violate any agreement the State Gaming Agency has with a
source of the information other than the Applicant, or would impair or
impede a criminal investigation, or unless the Tribal Gaming Agency
cannot provide sufficient safeguards to assure the State Gaming
Agency that the information will remain confidential.
(d)
In lieu of obtaining summary criminal history information from the
NIGC, the Tribal Gaming Agency may, pursuant to the provisions in
subdivisions (d) through (i), obtain such information from the
California Department of Justice. If the Tribe adopts an ordinance
confirming that article 6 (commencing with section 11140) of chapter
1 of title 1 of part 4 of the California Penal Code is applicable to
members, investigators, and staff of the Tribal Gaming Agency, and
those members, investigators, and staff thereafter comply with that
ordinance, then, for purposes of carrying out its obligations under this
section, the Tribal Gaming Agency shall be eligible to be considered
an entity entitled to request and receive state summary criminal
37
history information, within the meaning of subdivision (b)(13) of
section 11105 of the California Penal Code.
(e)
The information received shall be used by the requesting agency
solely for the purpose for which it was requested and shall not be
reproduced for secondary dissemination to any other employment or
licensing agency. The unauthorized access and misuse of criminal
offender record information may affect an individual’s civil rights.
Additionally, any person intentionally disclosing information obtained
from personal or confidential records maintained by a state agency or
from records within a system of records maintained by a government
agency may be subject to prosecution.
(f)
The Tribal Gaming Agency shall submit to the California Department
of Justice fingerprint images and related information required by the
California Department of Justice of all Gaming Employees, as defined
by section 2.11, for the purposes of obtaining information as to the
existence and content of a record of state or federal convictions and
state or federal arrests and also information as to the existence and
content of a record of state or federal arrests for which the Department
of Justice establishes that the person is free on bail or on his or her
recognizance pending trial or appeal.
(g)
When received, the California Department of Justice shall forward to
the Federal Bureau of Investigation requests for federal summary
criminal history information received pursuant to this section. The
California Department of Justice shall review the information returned
from the Federal Bureau of Investigation and compile and disseminate
a response to the Tribal Gaming Agency.
(h)
The California Department of Justice shall provide a state or federal
level response to the Tribal Gaming Agency pursuant to Penal Code
section 11105, subdivision (p)(1).
(i)
The Tribal Gaming Agency shall request from the California
Department of Justice subsequent notification service, as provided
pursuant to section 11105.2 of the Penal Code, for persons described
in subdivision (f) above.
38
Sec. 6.4.9. Temporary Licensing of Gaming Employees.
(a)
If the Applicant has completed a license application in a manner
satisfactory to the Tribal Gaming Agency, and that agency has
conducted a preliminary background investigation, and the
investigation or other information held by that agency does not
indicate that the Applicant has a criminal history or other information
in his or her background that would either automatically disqualify the
Applicant from obtaining a tribal gaming license or cause a reasonable
person to investigate further before issuing a license, or that the
Applicant is otherwise unsuitable for licensing, the Tribal Gaming
Agency may issue a temporary tribal gaming license and may impose
such specific conditions thereon pending completion of the
Applicant’s background investigation, as the Tribal Gaming Agency
in its sole discretion shall determine.
(b)
Special fees may be required by the Tribal Gaming Agency to issue or
maintain a temporary tribal gaming license.
(c)
A temporary tribal gaming license shall remain in effect until
suspended or revoked, or a final determination is made on the
application, or for a period of up to one (1) year, whichever comes
first.
(d)
At any time after issuance of a temporary tribal gaming license, the
Tribal Gaming Agency shall or may, as the case may be, suspend or
revoke it in accordance with the provisions of sections 6.5.1 or 6.5.5,
and the State Gaming Agency may request suspension or revocation
before making a determination of unsuitability.
(e)
Nothing herein shall be construed to relieve the Tribe of any
obligation under part 558 of title 25 of the Code of Federal
Regulations.
Sec. 6.5.0. Tribal Gaming License Issuance.
Upon completion of the necessary background investigation, the Tribal
Gaming Agency may issue a tribal gaming license on a conditional or
unconditional basis. Nothing herein shall create a property or other right of an
Applicant in an opportunity to be licensed, or in a tribal gaming license itself, both
39
of which shall be considered to be privileges granted to the Applicant in the sole
discretion of the Tribal Gaming Agency.
Sec. 6.5.1. Denial, Suspension, or Revocation of Licenses.
(a)
Any Applicant’s application for a tribal gaming license may be
denied, and any license issued may be revoked, if the Tribal Gaming
Agency determines that the application is incomplete or deficient, or
if the Applicant is determined to be unsuitable or otherwise
unqualified for a tribal gaming license.
(b)
Pending consideration of revocation, the Tribal Gaming Agency may
suspend a tribal gaming license in accordance with section 6.5.5.
(c)
All rights to notice and hearing shall be governed by tribal law and
comport with federal procedural due process by, at a minimum,
providing the employee with notice reasonably calculated to apprise
the employee of the pendency of the determination, access to the
materials upon which the charge is based, and an opportunity to be
heard. The Applicant shall be notified in writing of the hearing and
given notice of any intent to suspend or revoke the tribal gaming
license.
(d)
Notwithstanding anything to the contrary herein, upon receipt of
notice that the State Gaming Agency has determined that a person
would be unsuitable for licensure in a gambling establishment subject
to the jurisdiction of the State Gaming Agency, the Tribal Gaming
Agency shall deny that person a tribal gaming license and promptly,
and in no event more than thirty (30) days from the State Gaming
Agency notification, revoke any tribal gaming license that has
theretofore been issued to that person; provided that the Tribal
Gaming Agency may, in its discretion, reissue a tribal gaming license
to the person following entry of a final judgment reversing the
determination of the State Gaming Agency in a proceeding between
the applicant and the State Gaming Agency in state court conducted
pursuant to section 1085 of the California Code of Civil Procedure.
40
Sec. 6.5.2. Renewal of Licenses; Extensions; Further Investigation.
(a)
Except as provided in section 6.4.4, subdivision (c), the term of a
tribal gaming license shall not exceed two (2) years, and application
for renewal of a license must be made prior to its expiration.
Applicants for renewal of a license shall provide updated material, as
requested, on the appropriate renewal forms, but, at the discretion of
the Tribal Gaming Agency, may not be required to resubmit historical
data previously submitted or which is otherwise available to the Tribal
Gaming Agency. At the discretion of the Tribal Gaming Agency, an
additional background investigation may be required at any time if the
Tribal Gaming Agency determines the need for further information
concerning the Applicant’s continuing suitability or eligibility for a
license.
(b)
Prior to renewing a license, the Tribal Gaming Agency shall deliver to
the State Gaming Agency copies of all information and documents
received in connection with the application for renewal of the tribal
gaming license, which is not otherwise prohibited or restricted from
disclosure under applicable federal law or regulation, for purposes of
the State Gaming Agency’s consideration of renewal of its
determination of suitability.
(c)
At the discretion of the State Gaming Agency, an additional
background investigation may be required if the State Gaming
Agency determines the need for further information concerning the
Applicant’s continuing suitability for a license.
Sec. 6.5.3. Identification Cards.
(a)
The Tribal Gaming Agency shall require that all persons who are
required to be licensed wear, in plain view at all times while in the
Gaming Facility, identification badges issued by the Tribal Gaming
Agency.
(b)
Identification badges must display information, including, but not
limited to, a photograph and the person’s name, which is adequate to
enable members of the public and agents of the Tribal Gaming
Agency to readily identify the person and determine the validity and
date of expiration of his or her license.
41
(c)
Upon request, the Tribe shall provide the State Gaming Agency with
the name, badge identification number (if any), and job title of all
Gaming Employees.
Sec. 6.5.4. Fees for Tribal Gaming License.
The fees for all tribal gaming licenses shall be set by the Tribal Gaming
Agency.
Sec. 6.5.5. Suspension of Tribal Gaming License.
The Tribal Gaming Agency shall summarily suspend the tribal gaming
license of any employee if the Tribal Gaming Agency determines that the
continued licensing of the person constitutes a threat to the public health or safety
or may summarily suspend the license of any employee if the Tribal Gaming
Agency determines that the continued licensing of the person may violate the
Tribal Gaming Agency’s licensing or other standards. Any hearing in regard
thereto shall be governed by tribal law and comport with federal due process by, at
a minimum, providing the employee with notice reasonably calculated to apprise
the employee of the pendency of the determination, access to the materials upon
which the charge is based, and an opportunity to be heard.
Sec. 6.5.6. State Determination of Suitability Process.
(a)
With respect to Gaming Employees, upon receipt of an Applicant’s
completed license application and a determination to issue either a
temporary or permanent license, the Tribal Gaming Agency shall
transmit within twenty-one (21) days to the State Gaming Agency for
a determination of suitability for licensure under the California
Gambling Control Act a notice of intent to license the Applicant,
together with all of the following:
(1)
A copy of all tribal license application materials and
information received by the Tribal Gaming Agency from the
Applicant, which is not otherwise restricted from disclosure
under applicable federal law or regulation.
(2)
An original complete set of fingerprint impressions, rolled by a
certified fingerprint roller, which may be on a fingerprint card
or transmitted electronically.
42
(3)
A current photograph.
(4)
Except to the extent waived by the State Gaming Agency, such
releases of information, waivers, and other completed and
executed forms as have been obtained by the Tribal Gaming
Agency.
(b)
Upon receipt of a written request from a Gaming Resource Supplier or
a Financial Source for a determination of suitability, the State Gaming
Agency shall transmit an application package to the Applicant to be
completed and returned to the State Gaming Agency for purposes of
allowing it to make a determination of suitability for licensure.
(c)
Investigation and disposition of applications for a determination of
suitability shall be governed entirely by State law, and the State
Gaming Agency shall determine whether the Applicant would be
found suitable for licensure in a gambling establishment subject to the
State Gaming Agency’s jurisdiction. Additional information may be
required by the State Gaming Agency to assist it in its background
investigation, to the extent permitted under State law for licensure in a
gambling establishment subject to the State Gaming Agency’s
jurisdiction.
(d)
The Tribal Gaming Agency shall require a licensee to apply for
renewal of a determination of suitability by the State Gaming Agency
at such time as the licensee applies for renewal of a tribal gaming
license.
(e)
Upon receipt of completed license or license renewal application
information from the Tribal Gaming Agency, the State Gaming
Agency may conduct a background investigation pursuant to state law
to determine whether the Applicant is suitable to be licensed for
association with Class III Gaming operations. While the Tribal
Gaming Agency shall ordinarily be the primary source of application
information, the State Gaming Agency is authorized to directly seek
application information from the Applicant. The Tribal Gaming
Agency shall provide to the State Gaming Agency summary reports,
including any derogatory information, of the background
investigations conducted by the Tribal Gaming Agency and the NIGC,
written statements by the Applicant, and related applications, if any,
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for Gaming Employees, Gaming Resource Suppliers, and Financial
Sources. If further investigation is required to supplement the
investigation conducted by the Tribal Gaming Agency, the Applicant
will be required to pay the application fee charged by the State
Gaming Agency pursuant to California Business and Professions
Code section 19951, subdivision (a), but any deposit requested by the
State Gaming Agency pursuant to section 19867 of that Code shall
take into account reports of the background investigation already
conducted by the Tribal Gaming Agency and the NIGC, if any.
Failure to provide information reasonably required by the State
Gaming Agency to complete its investigation under State law or
failure to pay the application fee or deposit can constitute grounds for
denial of the application by the State Gaming Agency. The State
Gaming Agency and Tribal Gaming Agency shall cooperate in
sharing as much background information as possible, both to
maximize investigative efficiency and thoroughness, and to minimize
investigative costs.
(f)
Upon completion of the necessary background investigation or other
verification of suitability, the State Gaming Agency shall issue a
notice to the Tribal Gaming Agency certifying that the State has
determined that the Applicant is suitable, or that the Applicant is
unsuitable, for licensure in a Gaming Operation and, if unsuitable,
stating the reasons therefore. Issuance of a determination of
suitability does not preclude the State Gaming Agency from a
subsequent determination based on newly discovered information that
a person or entity is unsuitable for the purpose for which the person or
entity is licensed. Upon receipt of notice that the State Gaming
Agency has determined that a person or entity is or would be
unsuitable for licensure, the Tribal Gaming Agency shall deny that
person or entity a license and promptly, and in no event more than
thirty (30) days from the issuance of the State Gaming Agency
notification, revoke any tribal gaming license that has theretofore been
issued to that person or entity; provided that the Tribal Gaming
Agency may, in its discretion, reissue a tribal gaming license to the
person or entity following entry of a final judgment reversing the
determination of the State Gaming Agency in a proceeding in state
court between the Applicant and the State Gaming Agency conducted
pursuant to section 1085 of the California Code of Civil Procedure.
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(g)
Prior to denying an application for a determination of suitability, or to
issuing notice to the Tribal Gaming Agency that a person or entity
previously determined to be suitable had been determined unsuitable
for licensure, the State Gaming Agency shall notify the Tribal Gaming
Agency and afford the Tribe an opportunity to be heard. If the State
Gaming Agency denies an application for a determination of
suitability, or issues notice that a person or entity previously
determined suitable has been determined unsuitable for licensure, the
State Gaming Agency shall provide that person or entity with written
notice of all appeal rights available under state law.
(h)
The Commission, or its successor, shall maintain a roster of Gaming
Resource Suppliers and Financial Sources that it has determined to be
suitable pursuant to the provisions of this section, or through separate
procedures to be adopted by the Commission. Upon application to the
Tribal Gaming Agency for a tribal gaming license, a Gaming
Resource Supplier or Financial Source that appears on the
Commission’s suitability roster may be licensed by the Tribal Gaming
Agency in the same manner as a Gaming Resource Supplier under
subdivision (d) of section 6.4.4, subject to any later determination by
the State Gaming Agency that the Gaming Resource Supplier or
Financial Source is not suitable or to a tribal gaming license
suspension or revocation pursuant to section 6.5.1; provided that
nothing in this subdivision exempts the Gaming Resource Supplier or
Financial Source from applying for a renewal of a State determination
of suitability.
Sec. 6.6. Submission of New Application.
Except as expressly provided otherwise in section 6.4.4, subdivisions (a) and
(c), nothing in section 6.0 shall be construed to preclude an Applicant who has
been determined to be unsuitable for licensure by the State Gaming Agency, or the
Tribe on behalf of such Applicant, from later submitting a new application for a
determination of suitability by the State Gaming Agency in accordance with
section 6.0.
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SECTION 7.0. APPROVAL AND TESTING OF GAMING DEVICES.
Sec. 7.1. Gaming Device Approval.
(a)
No Gaming Device may be offered for play unless all the following
occurs:
(l)
The manufacturer or distributor which sells, leases, or
distributes such Gaming Device (i) has applied for a
determination of suitability by the State Gaming Agency at
least fifteen (15) days before it is offered for play, (ii) has not
been found to be unsuitable by the State Gaming Agency, and
(iii) has been licensed by the Tribal Gaming Agency;
(2)
The software for the game authorized for play on the Gaming
Device has been tested, approved and certified by an
independent gaming test laboratory or state governmental
gaming test laboratory (Gaming Test Laboratory) as operating
in accordance with the technical standards approved by the
State of Nevada, or such other technical standards as the State
Gaming Agency and the Tribal Gaming Agency shall agree
upon, which agreement shall not be unreasonably withheld;
(3)
A copy of the certification by the Gaming Test Laboratory,
specified in subdivision (a)(2), is provided to the State Gaming
Agency by electronic transmission or by mail, unless the State
Gaming Agency waives receipt of copies of the certification;
(4)
The software for the game authorized for play on the Gaming
Device is tested by the Tribal Gaming Agency to ensure each
game authorized for play on the Gaming Device has the correct
electronic signature prior to operation of the Gaming Device by
the public, or if already inserted, tested prior to being made
available for patron play on the gaming floor;
(5)
The hardware and associated equipment for each type of
Gaming Device has been tested by the Gaming Test Laboratory
prior to operation by the public to ensure operation in
accordance with the applicable Gaming Test Laboratory
standards; and
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(6)
(b)
The hardware and associated equipment for the Gaming Device
has been tested by the Tribal Gaming Agency to ensure
operation in accordance with the manufacturer’s specifications.
Where either the Tribe or the State Gaming Agency requests new
standards for testing, approval, and certification of the software for the
game authorized for play on the Gaming Device pursuant to
subdivision (a)(2), the party requesting the new standards shall
provide the other party with a detailed explanation of the reason(s) for
the request. If the party to which the request is made disagrees with
the request, the State Gaming Agency and the Tribal Gaming Agency
shall meet and confer in a good-faith effort to resolve the
disagreement, which meeting and conferring shall include
consultation with an independent Gaming Test Laboratory. If the
disagreement is not resolved within one hundred twenty (120) days of
the request, either party may submit the matter to dispute resolution
under section 13.0 of this Compact.
Sec. 7.2. Gaming Test Laboratory Selection.
(a)
The Gaming Test Laboratory shall be an independent or state
governmental gaming test laboratory recognized in the gaming
industry which (1) is competent and qualified to conduct scientific
tests and evaluations of Gaming Devices, and (2) is licensed or
approved by any of the following states: Arizona, California,
Colorado, Illinois, Indiana, Iowa, Michigan, Missouri, Nevada, New
Jersey, or Wisconsin. The Tribal Gaming Agency shall submit to the
State Gaming Agency documentation that demonstrates the Gaming
Test Laboratory satisfies (1) and (2) herein at least thirty (30) days
before the commencement of Gaming Activities pursuant to this
Compact, or if such use follows the commencement of Gaming
Activities, within fifteen (15) days prior to reliance thereon. If, at any
time, the Gaming Test Laboratory license and/or approval required by
(2) herein is suspended or revoked by any of those states or the
Gaming Test Laboratory is found unsuitable by the State Gaming
Agency, then the State Gaming Agency may reject the use of such
Gaming Test Laboratory, and upon such rejection, the Tribal Gaming
Agency shall ensure that such Gaming Test Laboratory discontinues
its responsibilities under this section.
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(b)
The Tribe and the State Gaming Agency shall inform the Gaming Test
Laboratory in writing that irrespective of the source of payment of its
fees, the Gaming Test Laboratory’s duty of loyalty runs equally to the
State and the Tribe.
Sec. 7.3. Maintenance of Records of Testing Compliance.
The Tribal Gaming Agency shall prepare and maintain records of its
compliance with section 7.1 while any Gaming Device is on the gaming floor and
for a period of one (1) year after the Gaming Device is removed from the gaming
floor, and shall make those records available for inspection by the State Gaming
Agency upon request.
Sec. 7.4. State Gaming Agency Inspections.
(a)
The State Gaming Agency, utilizing such consultants, if any, it deems
appropriate, may inspect the Gaming Devices in operation at the
Gaming Facility on a random basis not to exceed four (4) times
annually to confirm that they operate and play properly pursuant to
the manufacturer’s technical standards. The inspections may be
conducted onsite or remotely and may include all Gaming Device
software, hardware, associated equipment, software maintenance
records, and components critical to the operation of the Gaming
Device. The Tribal Gaming Agency shall cooperate with the State
Gaming Agency’s reasonable efforts to obtain information that
facilitates the conduct of remote but effective inspections that
minimize disruption to Gaming Activities. The random inspections
conducted pursuant to this subdivision shall occur during normal
business hours outside of weekends and holidays and shall not remove
from play more than five percent (5%) of the Gaming Devices then in
operation at the Gaming Facility, provided that the five percent (5%)
limitation on removal of Gaming Devices shall not apply where a
Gaming Device, including but not limited to a progressive controller,
makes limiting removal from play to no more than five percent (5%)
infeasible or impossible. Whenever practicable, the State Gaming
Agency shall not require removal from play any Gaming Device that
the State Gaming Agency determines may be fully and adequately
tested while still in play.
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(b)
The State Gaming Agency shall provide notice to the Tribal Gaming
Agency of such inspection at or prior to the commencement of the
random inspection, and the Tribal Gaming Agency may accompany
the State Gaming Agency inspector(s).
(c)
The State Gaming Agency, utilizing such consultants, if any, it deems
appropriate, may conduct additional inspections at additional times
upon reasonable belief of any irregularity and after informing and
consulting with the Tribal Gaming Agency regarding the factual basis
for such belief.
Sec. 7.5. Technical Standards.
The Tribal Gaming Agency shall provide to the State Gaming Agency
copies of its regulations for technical standards applicable to the Tribe’s Gaming
Devices at least thirty (30) days before the commencement of the Gaming
Operation and at least thirty (30) days before the effective date of any revisions to
the regulations.
Sec. 7.6. Transportation of Gaming Devices.
(a)
Subject to the provisions of subdivision (b), the Tribal Gaming
Agency shall not permit any Gaming Device to be transported to or
from the Tribe’s Indian lands except in accordance with procedures
established by agreement between the State Gaming Agency and the
Tribal Gaming Agency and upon at least ten (10) days’ notice to the
Sheriff’s Department for the County.
(b)
Transportation of a Gaming Device from a Gaming Facility within
California is permissible only if:
(1)
The final destination of the Gaming Device is a gaming facility
of any tribe in California that has a compact with the State
which makes lawful the receipt of such Gaming Device;
(2)
The final destination of the Gaming Device is any other state in
which possession of the Gaming Device is made lawful by state
law or by tribal-state compact;
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(c)
(3)
The final destination of the Gaming Device is another country,
or any state or province of another country, wherein possession
of the Gaming Device is lawful; or
(4)
The final destination is a location within California for testing,
repair, maintenance, or storage by a person or entity that has
been licensed by the Tribal Gaming Agency and has been found
suitable for licensure by the State Gaming Agency.
Any Gaming Device transported from or to the Tribe’s Indian lands in
violation of this section 7.6, or in violation of any permit issued
pursuant thereto, is subject to summary seizure by California peace
officers in accordance with California law.
SECTION 8.0. INSPECTIONS.
Sec. 8.1. Investigation and Sanctions.
(a)
The Tribal Gaming Agency shall investigate any reported violation of
this Compact and shall require the Gaming Operation to correct the
violation upon such terms and conditions as the Tribal Gaming
Agency determines are necessary.
(b)
The Tribal Gaming Agency shall be empowered by the Gaming
Ordinance to impose fines or other sanctions within the jurisdiction of
the Tribe against gaming licensees who interfere with or violate the
Tribe’s gaming regulatory requirements and obligations under IGRA,
NIGC gaming regulations, the Gaming Ordinance, or this Compact as
long as the fines or sanctions comport with federal due process by, at a
minimum, providing the employee with notice reasonably calculated
to apprise the employee of the pendency of the determination, access
to the materials upon which the charge is based, and an opportunity to
be heard..
(c)
The Tribal Gaming Agency shall report violations of this Compact
that pose a substantial threat to gaming integrity, public health and
safety or the environment, or continued violations that, if isolated
might not require reporting, but cumulatively pose a substantial threat
to gaming integrity, public health and safety or the environment, and
any failures to comply with Tribal Gaming Agency’s orders to the
50
Commission and the Bureau of Gambling Control in the California
Department of Justice within ten (10) days of discovery.
Sec. 8.2. Assistance by State Gaming Agency.
The Tribe may request the assistance of the State Gaming Agency whenever
it reasonably appears that such assistance may be necessary to carry out the
purposes described in section 8.1, or otherwise to protect public health, safety, or
welfare.
Sec. 8.3. Access to Premises by State Gaming Agency; Notification;
Inspections.
(a)
Notwithstanding that the Tribe and its Tribal Gaming Agency have
the primary responsibility to administer and enforce the regulatory
requirements of this Compact, the State Gaming Agency, including
but not limited to any consultants retained by it, shall have the right to
inspect the Tribe’s Gaming Facility, and all Gaming Operation or
Facility records relating to Class III Gaming as is reasonably
necessary to ensure Compact compliance, including such records
located in off-site facilities dedicated to their storage subject to the
conditions in subdivisions (b), (c), and (d).
(b)
Except as provided in section 7.4, the State Gaming Agency may
inspect public areas of the Gaming Facility at any time without prior
notice during normal Gaming Facility business hours.
(c)
Inspection of areas of the Gaming Facility not normally accessible to
the public may be made at any time the Gaming Facility is open to the
public, immediately after the State Gaming Agency’s authorized
inspector notifies the Tribal Gaming Agency of his or her presence on
the premises, presents proper identification, and requests access to the
non-public areas of the Gaming Facility. The Tribal Gaming Agency,
in its sole discretion, may require a member of the Tribal Gaming
Agency to accompany the State Gaming Agency inspector at all times
that the State Gaming Agency inspector is in a non-public area of the
Gaming Facility. If the Tribal Gaming Agency imposes such a
requirement, it shall require such member to be available at all times
for those purposes and shall ensure that the member has the ability to
gain immediate access to all non-public areas of the Gaming Facility.
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(d)
Nothing in this Compact shall be construed to limit the State Gaming
Agency to one inspector during inspections.
Sec. 8.4. Inspection, Copying and Confidentiality of Documents.
(a)
Inspection and copying of Gaming Operation papers, books, and
records may occur at any time, immediately after the State Gaming
Agency gives notice to the Tribal Gaming Agency, during the hours
from 8:00 a.m. to 5:00 p.m. Monday through Friday, and at any other
time that a Tribal Gaming Agency employee, a Gaming Facility
employee, or a Gaming Operation employee is available onsite with
physical access to offices, including off-site facilities, where the
papers, books, and records are kept. The Tribe shall cooperate with,
and cannot refuse, the inspection and copying, provided that the State
Gaming Agency inspectors cannot require copies of papers, books, or
records in such volume that it unreasonably interferes with the normal
functioning of the Gaming Operation or Gaming Facility.
(b)
In lieu of onsite inspection and copying of Gaming Operation papers,
books, and records by its inspectors, the State Gaming Agency may
request in writing that the Tribal Gaming Agency provide copies of
such papers, books, and records as the State Gaming Agency deems
necessary to ensure compliance with the terms of this Compact. The
State Gaming Agency’s written request shall describe those papers,
books, and records requested to be copied with sufficient specificity to
reasonably identify the requested documents. Within ten (10) days
after it receives the request, or such other time as the State Gaming
Agency may agree in writing, the Tribal Gaming Agency shall
provide one (1) copy of the requested papers, books, and records to
the requesting State Gaming Agency. An electronic version of the
requested papers, books, and records may be submitted to the State
Gaming Agency in lieu of a paper copy so long as the software
required to access the electronic version is reasonably available to the
State Gaming Agency and the State Gaming Agency does not object.
(c)
Notwithstanding any other provision of California law, any
confidential information and records, as defined in subdivision (d),
that the State Gaming Agency obtains or copies pursuant to this
Compact shall be, and remain, the property solely of the Tribe;
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provided that such confidential information and records and copies
may be retained by the State Gaming Agency as is reasonably
necessary to assure the Tribe’s compliance with this Compact or to
complete any investigation of suspected criminal activity; and
provided further that the State Gaming Agency may provide such
confidential information and records and copies to federal law
enforcement and other state agencies or consultants that the State
deems reasonably necessary in order to assure the Tribe’s compliance
with this Compact, in order to renegotiate any provision thereof, or in
order to conduct or complete any investigation of suspected criminal
activity in connection with the Gaming Activities or the operation of
the Gaming Facility or the Gaming Operation.
(d)
For the purposes of this section 8.4, “confidential information and
records” means any and all information and records received from the
Tribe pursuant to the Compact, except for information and documents
that are in the public domain.
(e)
The State Gaming Agency and all other state agencies and consultants
to which it provides information and records obtained pursuant to
subdivisions (a) or (b) of this section, which are confidential pursuant
to subdivision (d), will exercise care in the preservation of the
confidentiality of such information and records and will apply the
highest standards of confidentiality provided under California state
law to preserve such information and records from disclosure until
such time as the information or record is no longer confidential or
disclosure is authorized by the Tribe, by mutual agreement of the
Tribe and the State, or pursuant to the arbitration procedures under
section 13.2. The State Gaming Agency and all other state agencies
and consultants may disclose confidential information or records as
necessary to fully adjudicate or resolve a dispute arising pursuant to
the Compact, in which case the State Gaming Agency and all other
state agencies and consultants agree to preserve confidentiality to the
greatest extent feasible and available. Before the State Gaming
Agency provides confidential information and records to a consultant
as authorized under subdivision (c), it shall enter into a confidentiality
agreement with that consultant that meets the standards of this
subdivision.
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(f)
The Tribe may avail itself of any and all remedies under State law for
the improper disclosure of confidential information and records. In
the case of any disclosure of confidential information and records
compelled by judicial process, the State Gaming Agency will
endeavor to give the Tribe prompt notice of the order compelling
disclosure and a reasonable opportunity to interpose an objection
thereto with the court.
(g)
The Tribal Gaming Agency and the State Gaming Agency shall confer
regarding protocols for the release to law enforcement agencies of
information obtained during the course of background investigations.
(h)
Confidential information and records received by the State Gaming
Agency from the Tribe in compliance with this Compact, or
information compiled by the State Gaming Agency from those
confidential records, shall be exempt from disclosure under the
California Public Records Act.
(i)
Notwithstanding any other provision of this Compact, the State
Gaming Agency shall not be denied access to papers, books, records,
equipment, or places where such access is reasonably necessary to
ensure compliance with this Compact or to conduct or complete an
investigation of suspected criminal activity in connection with the
Gaming Activities or the operation of the Gaming Facility or the
Gaming Operation.
Sec. 8.5. NIGC Audit Reports.
The Tribe shall provide to the State Gaming Agency, within twenty (20)
days of their submission to the NIGC, copies of the audited financial statements of
Class III Gaming and management letter(s), if any, provided to the NIGC. All
submissions to the State Gaming Agency made pursuant to this section 8.5 shall be
subject to the confidentiality protections and assurances set forth in section 8.4,
subdivision (h) of this Compact.
Sec. 8.6. Cooperation with Tribal Gaming Agency.
The State Gaming Agency shall meet periodically with the Tribal Gaming
Agency and cooperate in all matters relating to the enforcement of the provisions
of this Compact and its Appendices.
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Sec. 8.7. Compact Compliance Review.
The State Gaming Agency is authorized to conduct an annual
comprehensive Compact compliance review of the Gaming Operation, Gaming
Facility, and Gaming Activities to ensure compliance with all provisions of this
Compact, any appendices hereto, including, without limitation, minimum internal
control standards set forth in Appendix C, and with all laws, ordinances, codes,
rules, regulations, policies, internal controls, standards, and procedures that are
required to be adopted, implemented, or complied with pursuant to this Compact.
Upon the discovery of an irregularity that the State Gaming Agency reasonably
determines may be a threat to gaming integrity or public safety, and after
consultation with the Tribal Gaming Agency, the State Gaming Agency may
conduct additional periodic reviews of any part of the Gaming Operation, Gaming
Facility, and Gaming Activities and other activities subject to this Compact in
order to ensure compliance with all provisions of this Compact and its appendices.
Nothing in this section shall be construed to supersede any other audits,
inspections, investigations, and monitoring authorized by this Compact.
SECTION 9.0. RULES AND REGULATIONS FOR THE OPERATION
AND MANAGEMENT OF THE GAMING OPERATION AND FACILITY.
Sec. 9.1. Adoption of Regulations for Operation and Management;
Minimum Standards.
It is the responsibility of the Tribal Gaming Agency to conduct on-site
gaming regulation and control in order to enforce the terms of this Compact, of
IGRA, of NIGC gaming regulations, of State Gaming Agency regulations, and of
the Gaming Ordinance, to protect the integrity of the Gaming Activities and the
Gaming Operation for honesty and fairness, and to maintain the confidence of
patrons that tribal governmental gaming in California meets the highest standards
of fairness and internal controls. To meet those responsibilities, the Tribal Gaming
Agency shall be vested with the authority to promulgate, and shall promulgate,
rules and regulations governing, at a minimum, the following subjects pursuant to
the standards and conditions set forth therein:
(a)
The enforcement of all relevant laws and rules with respect to the
Gaming Activities, Gaming Operation and Gaming Facility, and the
conduct of investigations and hearings with respect thereto, and to any
other subject within its jurisdiction.
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(b)
The physical safety of Gaming Facility patrons and employees, and
any other person while in the Gaming Facility. Except as provided in
section 12.2, nothing herein shall be construed, however, to make
applicable to the Tribe any State laws, regulations, or standards
governing the use of tobacco.
(c)
The physical safeguarding of assets transported to, within, and from
the Gaming Facility.
(d)
The prevention of illegal activity within the Gaming Facility or with
regard to the Gaming Operation or Gaming Activities, including, but
not limited to, the maintenance of employee procedures and a
surveillance system as provided in subdivision (e).
(e)
Maintenance of a closed-circuit television surveillance system
consistent with industry standards for gaming facilities of the type and
scale operated by the Tribe, which system shall be approved by, and
may not be modified without the approval of, the Tribal Gaming
Agency. The Tribal Gaming Agency shall have current copies of the
Gaming Facility floor plan and closed-circuit television system at all
times.
(f)
The recording of any and all occurrences within the Gaming Facility
that deviate from normal operating policies and procedures
(hereinafter “incidents”). The regulations shall provide that the Tribal
Gaming Agency shall transmit copies of incident reports that concern
a significant or continued threat to public safety or gaming integrity to
the State Gaming Agency forthwith. The procedure for recording
incidents pursuant to the regulations shall also do all of the following:
(1)
Specify that security personnel record all incidents, regardless
of an employee’s determination that the incident may be
immaterial (all incidents shall be identified in writing).
(2)
Require the assignment of a sequential number to each report.
(3)
Provide for permanent reporting in indelible ink in a bound
notebook from which pages cannot be removed and in which
entries are made on each side of each page and/or in electronic
form, provided the information is recorded in a manner so that,
56
once the information is entered, it cannot be deleted or altered
and is available to the State Gaming Agency pursuant to
sections 8.3 and 8.4.
(4)
Require that each report include, at a minimum, all of the
following:
(A)
The record number.
(B)
The date.
(C)
The time.
(D)
The location of the incident.
(E)
A detailed description of the incident.
(F)
The persons involved in the incident.
(G)
The security department employee assigned to the
incident.
(g)
The establishment of employee procedures designed to permit
detection of any irregularities, theft, cheating, fraud, or the like,
consistent with industry practice.
(h)
Maintenance of a list of persons permanently excluded from the
Gaming Facility who, because of their past behavior, criminal history,
or association with persons or organizations, pose a threat to the
integrity of the Gaming Activities of the Tribe or to the integrity of
regulated gaming within the State. The Tribal Gaming Agency shall
transmit a copy of the list to the State Gaming Agency quarterly and
shall make a copy of the current list available to the State Gaming
Agency upon request. Notwithstanding anything in this Compact to
the contrary, the State Gaming Agency is authorized to make copies
of the list available to other tribal gaming agencies, to licensees of the
Commission, the California Horse Racing Board, and other law
enforcement agencies. To the extent permissible under law, the State
Gaming Agency may share information about individuals
permanently excluded from other tribal gaming facilities or other
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gaming establishments within California with the Tribal Gaming
Agency.
(i)
The conduct of an audit, at the Tribe’s expense, of the annual financial
statements of the Gaming Operation.
(j)
Submission to, and prior approval by, the Tribal Gaming Agency of
the rules and regulations of each Class III game to be operated by the
Tribe, and of any changes in those rules and regulations. No Class III
game may be played that has not received Tribal Gaming Agency
approval.
(k)
The obligation of the Gaming Facility and the Gaming Operation to
maintain a copy of the rules, regulations, and procedures for each
game as played, including, but not limited to, the method of play and
the odds and method of determining amounts paid to winners.
(l)
Specifications and standards to ensure that information regarding the
method of play, odds, and payoff determinations is visibly displayed
or available to patrons in written form in the Gaming Facility and to
ensure that betting limits applicable to any gaming station is displayed
at that gaming station.
(m)
Maintenance of a cashier’s cage in accordance with industry standards
for such facilities.
(n)
Specification of minimum staff and supervisory requirements for each
Gaming Activity to be conducted.
(o)
Technical standards and specifications in conformity with the
requirements of this Compact for the operation of Gaming Devices
and other games authorized herein to be conducted by the Tribe.
Sec. 9.1.1. Minimum Internal Control Standards (MICS).
(a)
The Tribe shall conduct its Gaming Activities pursuant to an internal
control system that implements minimum internal control standards
for Class III Gaming that are no less stringent than those contained in
the Minimum Internal Control Standards of the NIGC (25 C.F.R. §
542), as they existed on October 19, 2006, and as they may thereafter
58
be amended, without regard to the NIGC’s authority to promulgate,
enforce, or audit the standards. This requirement is met through
compliance with the provisions set forth in this section and in section
9.1 or in the alternative by compliance with the state-wide uniform
regulation CGCC-8, as it exists currently and as it may hereafter be
amended.
(b)
Before commencement of Gaming Operations, the Tribal Gaming
Agency shall, in accordance with the Gaming Ordinance, establish
written internal control standards for the Gaming Facility that shall:
(i) provide a level of control that equals or exceeds the minimum
internal control standards set forth in Appendix C to this Compact, as
it exists currently and as it may be revised; (ii) contain standards for
currency transaction reporting that comply with title 31 Code of
Federal Regulations part 103, as it exists currently and as it may
hereafter be amended; (iii) satisfy the requirements of section 9.1; (iv)
be consistent with this Compact; and (v) require the Gaming
Operation to comply with the internal control standards.
(c)
The Gaming Operation shall operate the Gaming Facility pursuant to a
written internal control system. The internal control system shall
comply with and implement the internal control standards established
by the Tribal Gaming Agency pursuant to subdivision (b) of this
section 9.1.1. The internal control system, and any proposed changes
to the system, must be approved by the Tribal Gaming Agency prior
to implementation. The internal control system shall be designed to
reasonably assure that: (i) assets are safeguarded and accountability
over assets is maintained; (ii) liabilities are properly recorded and
contingent liabilities are properly disclosed; (iii) financial records
including records relating to revenues, expenses, assets, liabilities, and
equity/fund balances are accurate and reliable; (iv) transactions are
performed in accordance with the Tribal Gaming Agency’s general or
specific authorization; (v) access to assets is permitted only in
accordance with the Tribal Gaming Agency’s approved procedures;
(vi) recorded accountability for assets is compared with actual assets
at frequent intervals and appropriate action is taken with respect to
any discrepancies; and (vii) functions, duties and responsibilities are
appropriately segregated and performed in accordance with sound
practices by qualified personnel.
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(d)
The Tribal Gaming Agency shall provide a copy of its written internal
control standards to comply with the minimum internal controls set
forth in Appendix C, and any changes to those control standards, to
the State Gaming Agency within thirty (30) days of approval by the
Tribal Gaming Agency. The State Gaming Agency will review and
submit to the Tribal Gaming Agency written comments or
recommended changes, if any, to the internal control standards and
any changes to the standards, within thirty (30) days of receiving
them, or by another date agreed upon by the Tribal Gaming Agency
and the State Gaming Agency. The State Gaming Agency’s review
shall be for the purpose of determining whether the internal control
standards and any changes to the standards provide a level of control
which equals or exceeds the level of control required by the minimum
internal control standards set forth in Appendix C, as it exists
currently and as it may be revised, and are consistent with this
Compact; provided, however, that this review of minimum internal
controls shall not apply to implementing internal controls approved by
the Tribal Gaming Agency that are not related to the minimum control
standards set forth in Appendix C.
(e)
The minimum internal control standards set forth in Appendix C to
this Compact shall apply to all Gaming Activities, Gaming Facilities
and the Gaming Operation; however, Appendix C is not applicable to
any activities not expressly permitted in this Compact. Should the
terms in Appendix C be inconsistent with any terms addressed by this
Compact, the terms in this Compact shall prevail.
(f)
The Tribal Gaming Agency shall provide the State Gaming Agency
with a copy of the “Agreed-Upon Procedures” report prepared
annually pursuant to part 542.3, subdivision (f) in Appendix C, as may
be amended from time to time, within thirty (30) days after the Tribal
Gaming Agency’s receipt of the report. The “Agreed-Upon
Procedures” report shall be prepared by an independent auditor, who
for the purposes of this section, shall be a certified public accountant
licensed in the state of California to practice as an independent
certified public accountant or who holds a California practice
privilege, as provided in the California Accountancy Act, California
Business and Professions Code, section 5000 et seq., who is not
employed by the Tribe, the Tribal Gaming Agency, the Management
Contractor, or the Gaming Operation, has no financial interest in any
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of these entities, and is only otherwise retained by any of these entities
to conduct regulatory audits, independent audits of the Gaming
Operation, or audits under this section.
Sec. 9.2. Program to Mitigate Problem Gambling.
The Gaming Operation shall establish a program, approved by the Tribal
Gaming Agency, to mitigate pathological and problem gambling by implementing
the following measures:
(a)
It shall train Gaming Facility supervisors and gaming floor employees
on responsible gaming and to identify and manage problem gambling.
(b)
It shall make available to patrons at conspicuous locations and ATMs
in the Gaming Facility educational and informational materials which
aim at the prevention of problem gambling and that specify where to
find assistance.
(c)
It shall establish self-exclusion programs whereby a self-identified
problem gambler may request the halt of promotional mailings, the
revocation of privileges for casino services, the denial or restraint on
the issuance of credit and check cashing services, and exclusion from
the Gaming Facility.
(d)
It shall establish an involuntary exclusion program that allows, but
does not require, the Gaming Operation to halt promotional mailings,
deny or restrain the issuance of credit and cash checking services, and
deny access to the Gaming Facility to patrons who have exhibited
signs of problem gambling.
(e)
It shall display at conspicuous locations and at ATMs within the
Gaming Facility signage bearing a toll-free help-line number where
patrons may obtain assistance for gambling problems.
(f)
It shall make diligent efforts to prevent underage individuals from
loitering in the area of the Gaming Facility where the Gaming
Activities take place.
(g)
It shall assure that advertising and marketing of the Gaming Activities
at the Gaming Facility contain a responsible gambling message and a
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toll-free help-line number for problem gamblers, where practical, and
that it make no false or misleading claims.
(h)
It shall adopt a code of conduct, derived, inter alia, from that of the
American Gaming Association, that addresses responsible gambling
and responsible advertising.
Nothing herein is intended to grant any third party the right to sue based on a
perceived violation of these standards.
Sec. 9.3. Enforcement of Regulations.
The Tribal Gaming Agency shall ensure the enforcement of the rules,
regulations, and specifications promulgated under this Compact, including under
section 9.1.
Sec. 9.4. State Civil and Criminal Jurisdiction.
Nothing in this Compact impairs the civil or criminal jurisdiction of the
State, local law enforcement agencies and state courts under Public Law 280 (18
U.S.C. § 1162; 28 U.S.C. § 1360) or IGRA. Except as provided below, all State
and local law enforcement agencies and state courts shall exercise jurisdiction to
enforce the State’s criminal laws on the Tribe’s Indian lands, including the Gaming
Facility and all related structures, in the same manner and to the same extent, and
subject to the same restraints and limitations, imposed by the laws of the State and
the United States, as is exercised by State and local law enforcement agencies and
state courts elsewhere in the State. The Tribe hereby consents to such criminal
jurisdiction. However, no Gaming Activity conducted by the Tribe pursuant to this
Compact may be deemed to be a civil or criminal violation of any law of the State.
Except for such Gaming Activity conducted pursuant to this Compact, criminal
jurisdiction to enforce State gambling laws on the Tribe’s Indian lands, and to
adjudicate alleged violations thereof, is hereby transferred to the State pursuant to
18 U.S.C. § 1166(d).
Sec. 9.5. Tribal Gaming Agency Members.
(a)
The Tribe shall take all reasonable steps to ensure that members of the
Tribal Gaming Agency are free from corruption, undue influence,
compromise, and conflicting interests in the conduct of their duties
under this Compact; shall adopt a conflict-of-interest code to that end
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and shall ensure its enforcement; and shall ensure the prompt removal
of any member of the Tribal Gaming Agency who is found to have
acted in a corrupt or compromised manner or to have a conflict of
interest.
(b)
The Tribe shall conduct a background investigation on each
prospective member of the Tribal Gaming Agency, who shall meet the
background requirements of a management contractor under IGRA;
provided that if such member is elected through a tribal election
process, that member may not participate in any Tribal Gaming
Agency matters under this Compact unless a background investigation
has been concluded and the member has been found to be suitable. If
requested by the Tribe or the Tribal Gaming Agency, the State
Gaming Agency may assist in the conduct of such a background
investigation and may assist in the investigation of any possible
corruption or compromise of a member of the Tribal Gaming Agency.
(c)
In the event that the Tribe requests the assistance of the State Gaming
Agency pursuant to subdivision (b) of this section and the State
Gaming Agency determines that a member of the Tribal Gaming
Agency is unsuitable, the State Gaming Agency shall serve upon the
Tribe a written notice of its finding of unsuitability and request the
removal of the member. Upon receipt of notice that the State Gaming
Agency has determined the member to be unsuitable, the Tribe shall
either immediately remove that member from the Tribal Gaming
Agency or demand an expedited arbitration pursuant to section 13.2.
(d)
If the Tribe demands an expedited arbitration of the State Gaming
Agency’s determination of unsuitability, the arbitrator shall make a de
novo determination as to whether the State Gaming Agency’s
determination of unsuitability is justified using the following bases for
such determination.
(1)
To be found suitable, the member must be all of the following:
(A)
A person of good character, honesty, and integrity.
(B)
A person whose prior activities, criminal record, if any,
reputation, habits, and associations do not pose a threat to
the public interest of the State, or to the effective
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regulation and control of controlled gambling, or create
or enhance the dangers of unsuitable, unfair, or illegal
practices, methods, and activities in the conduct of
controlled gambling or in the carrying on of the business
and financial arrangements incidental thereto.
(C)
(2)
A person that is in all other respects qualified to be
licensed as provided in section 6.4.7 of this Compact.
A member is deemed unsuitable if any of the following apply:
(A)
The person, any partner, or any officer, director, or
shareholder of any corporation in which the person has a
controlling interest, has any financial interest in any
business or organization that is engaged in any form of
gambling prohibited by section 330 of the California
Penal Code, whether within or without the State of
California, unless such gambling is lawful within the
jurisdiction in which it is being conducted.
(B)
The person fails to clearly establish eligibility and
qualification in accordance with section 6.4.7 of this
Compact.
(C)
The person fails to provide information, documentation,
and assurances required by sections 6.4.7, 6.4.8,
subdivision (c), or 6.5.6 of this Compact or requested by
the Tribal Gaming Agency, or fails to reveal any fact
material to qualification, or supplies information that is
untrue or misleading as to a material fact pertaining to
the qualification criteria.
(D)
The person has been convicted of a felony in any state or
federal court, including a conviction by a federal court or
by a court in another state for a crime that would
constitute a felony if committed in California.
(E)
The person has been convicted of any misdemeanor
involving dishonesty or moral turpitude within the ten
(10)-year period immediately preceding the beginning of
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his or her service on the Tribal Gaming Agency, unless
the applicant has been granted relief pursuant to section
1203.4, 1203.4a, or 1203.45 of the California Penal
Code; provided, however, that the granting of relief
pursuant to section 1203.4, 1203.4a, or 1203.45 of the
California Penal Code shall not constitute a limitation on
the discretion of the arbitrator to determine the person’s
compliance with the requirements of sections 6.4.7 and
9.5, subdivision (d)(1), of this Compact.
(F)
The person has been associated with criminal profiteering
activity or organized crime, as defined by section 186.2
of the California Penal Code.
(G)
The person has exhibited contumacious defiance of any
legislative investigatory body, or other official
investigatory body of any state or of the United States,
when that body is engaged in the investigation of crimes
relating to gambling, official corruption related to
gambling activities, or criminal profiteering activity or
organized crime, as defined by section 186.2 of the
California Penal Code.
(H)
The person is less than twenty-one (21) years of age.
In all cases, in coming to a decision, the arbitrator must give due
consideration for the proper protection of the health, safety and welfare of the
residents of the State, and must take into account whether membership on the
Tribal Gaming Agency would undermine public trust that the Gaming Operation is
free from criminal and dishonest elements and would be conducted honestly.
Sec. 9.6. Uniform Tribal Gaming Regulations.
(a)
Uniform Tribal Gaming Regulations CGCC-1, CGCC-2, CGCC-7,
and CGCC-8 (as in effect on the date the parties execute this
Compact), adopted by the State Gaming Agency and approved by the
Association, shall apply to the Gaming Operation until amended or
repealed, without further action by the State Gaming Agency, the
Tribe, the Tribal Gaming Agency or the Association.
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(b)
Any subsequent Uniform Tribal Gaming Regulations adopted by the
State Gaming Agency and approved by the Association shall apply to
the Gaming Operation until amended or repealed.
(c)
No State Gaming Agency regulation adopted pursuant to this section
9.6 shall be effective with respect to the Tribe’s Gaming Operation
unless it has first been approved by the Association and the Tribe has
had an opportunity to review and comment on the proposed
regulation.
(d)
Every State Gaming Agency regulation adopted pursuant to this
section 9.6 that is intended to apply to the Tribe (other than a
regulation proposed or previously approved by the Association) shall
be submitted to the Association for consideration prior to submission
of the regulation to the Tribe for comment as provided in subdivision
(c). A regulation adopted pursuant to this section 9.6 that is
disapproved by the Association shall not be submitted to the Tribe for
comment unless it is re-adopted by the State Gaming Agency as a
proposed regulation, in its original or amended form, with a detailed,
written response to the Association’s objections.
(e)
Except as provided in subdivision (d), no regulation of the State
Gaming Agency adopted pursuant to this section 9.6 shall be adopted
as a final regulation with respect to the Tribe’s Gaming Operation
before the expiration of 30 (thirty) days after submission of the
proposed regulation to the Tribe for comment as a proposed
regulation, and after consideration of the Tribe’s comments, if any.
(f)
In exigent circumstances (e.g., imminent threat to public health and
safety), the State Gaming Agency may adopt a regulation that
becomes effective immediately. Any such regulation shall be
accompanied by a detailed, written description of the exigent
circumstances, and shall be submitted immediately to the Association
for consideration. If the regulation is disapproved by the Association,
it shall cease to be effective, but may be re-adopted by the State
Gaming Agency as a proposed regulation, in its original or amended
form, with a detailed, written response to the Association’s objections,
and thereafter submitted to the Tribe for comment as provided in
subdivision (e).
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(g)
The Tribe may object to a State Gaming Agency regulation adopted
pursuant to this section 9.6 on the ground that it is unnecessary,
unduly burdensome, or unfairly discriminatory, and may seek repeal
or amendment of the regulation through the dispute resolution process
of section 13.0.
SECTION 10.0. PATRON DISPUTES.
The Tribal Gaming Agency shall promulgate regulations governing patron
disputes over the play or operation of any game, including any refusal to pay to a
patron any alleged winnings from any Gaming Activities, which regulations must
meet the following minimum standards:
(a)
A patron who makes an oral or written complaint to personnel of the
Gaming Operation over the play or operation of any game within
three (3) days of the play or operation at issue shall be notified in
writing of the patron’s right to request in writing, within fifteen (15)
days of the Gaming Operation’s written notification to the patron of
that right, resolution of the dispute by the Tribal Gaming Agency, and
if dissatisfied with the resolution, to seek resolution in either the
Sycuan Tribal Court or before a tribal claims commission pursuant to
the terms and provisions in subdivision (c). If the patron is not
provided with the aforesaid notification within thirty (30) days of the
patron’s complaint, the deadlines herein shall be removed, leaving
only the relevant statutes of limitations under California law that
would otherwise apply.
(b)
Upon receipt of the patron’s written request for a resolution of the
patron’s complaint pursuant to subdivision (a), the Tribal Gaming
Agency shall conduct an appropriate investigation, shall provide to the
patron a copy of its regulations concerning patron complaints, and
shall render a decision in accordance with industry practice. The
decision shall be issued within sixty (60) days of the patron’s request,
shall be in writing, shall be based on the facts surrounding the dispute,
and shall set forth the reasons for the decision.
(c)
If the patron is dissatisfied with the decision of the Tribal Gaming
Agency issued pursuant to subdivision (b), or no decision is issued
within the sixty (60)-day period, the patron may request that the
dispute be settled either in the Sycuan Tribal Court or by a three (3)67
member tribal claims commission consisting of a representative of the
tribal government and at least one non-tribal commissioner. No
member of the commission may be employed by the Gaming Facility
or Gaming Operation. Resolution of the dispute before the Sycuan
Tribal Court or the tribal claims commission shall be at no cost to the
claimant (excluding claimant’s attorney’s fees).
(d)
The Tribe shall consent to the Sycuan Tribal Court or tribal claims
commission adjudication, as provided in subdivision (e), and
discovery in the Sycuan Tribal Court or claims commission
proceedings shall be governed by the Intertribal Court of Southern
California Code of Civil Procedure, article IV. Any award shall be
limited to the amount in controversy and neither the Sycuan Tribal
Court nor the tribal claims commission shall have the authority to
award attorney’s fees. Any party dissatisfied with the award of the
Sycuan Tribal Court or the tribal claims commission may, at the
party’s election, appeal the award to the Intertribal Court of Southern
California Court of Appeals, provided that the party making the
election must bear all costs and expenses associated with the appeal
regardless of the outcome. The Intertribal Court of Southern
California Court of Appeals shall review all determinations of the
Sycuan Tribal Court and the tribal claims commission on matters of
law, but shall not set aside any factual determinations of the trial court
if such determinations are supported by substantial evidence. Any
award shall be limited to the amount in controversy and the Intertribal
Court of Southern California Court of Appeals shall have no authority
to award any attorneys’ fees, costs or lower court fees.
(e)
To effectuate its consent to Sycuan Tribal Court or tribal claims
commission, and appeals provided in this section 10.0, the Tribe shall,
in the exercise of its sovereignty, expressly waive, and also waive its
right to assert, sovereign immunity in connection with the jurisdiction
of the Sycuan Tribal Court, the tribal claims commission or Intertribal
Court of Southern California and in any suit in state or federal court to
enforce or execute a judgment based upon the award of the tribal
court, claims commission, or appellate court.
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SECTION 11.0. OFF-RESERVATION ENVIRONMENTAL AND
ECONOMIC IMPACTS.
Sec. 11.1. Tribal Environmental Impact Report.
(a)
Currently, certain lands within the Tribe’s reservation are subject to a
January 9, 2012, intergovernmental agreement between the Tribe and
the County. This intergovernmental agreement, which provides for
binding arbitration, requires the Tribe’s identification and mitigation
of off-reservation impacts arising out of new land use on those lands.
The Tribe intends that this intergovernmental agreement be applicable
to any Project, as defined in this Compact, within the Tribe’s
reservation and will seek to amend the intergovernmental agreement’s
terms with the County. Upon the amendment of the January 9, 2012
intergovernmental agreement all Projects commenced under this
Compact shall be subject to the amended January 9, 2012
intergovernmental agreement and not this section 11.0.
(b)
In the event the Tribe has not amended its January 9, 2012
intergovernmental agreement with the County as provided in
subdivision (a), before the commencement of any Project as defined
in section 2.22, the Tribe shall cause to be prepared a comprehensive
and adequate tribal environmental impact report (TEIR) analyzing the
potentially significant off-reservation environmental impacts of the
Project pursuant to the process set forth in this section 11.0, starting
with this subdivision (b); provided, however, that information or data
that is relevant to the TEIR and is a matter of public record or is
generally available to the public need not be repeated in its entirety in
the TEIR, but may be specifically cited as the source for conclusions
stated therein; and provided further that such information or data shall
be briefly described, that its relationship to the TEIR shall be
indicated, and that the source thereof shall be reasonably available for
inspection at a public place or public building. The TEIR shall
provide detailed information about the Significant Effect(s) on the
Environment which the Project is likely to have, including each of the
matters set forth in Appendix B, shall list ways in which the
Significant Effects on the Environment might be minimized, and shall
include a detailed statement setting forth all of the following:
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(c)
(1)
A description of the physical environmental conditions in the
vicinity of the Project (the environmental setting and existing
baseline conditions), as they exist at the time the notice of
preparation is issued;
(2)
All Significant Effects on the Environment of the proposed
Project;
(3)
In a separate section:
(A)
Any Significant Effect on the Environment that cannot be
avoided if the Project is implemented;
(B)
Any Significant Effect on the Environment that would be
irreversible if the Project is implemented;
(4)
Mitigation measures proposed to minimize Significant Effects
on the Environment, including, but not limited to, measures to
reduce the wasteful, inefficient, and unnecessary consumption
of energy;
(5)
Alternatives to the Project; provided that the Tribe need not
address alternatives that would cause it to forgo its right to
engage in the Gaming Activities authorized by this Compact on
its Indian lands;
(6)
Whether any proposed mitigation would be feasible;
(7)
Any direct growth-inducing impacts of the Project; and
(8)
Whether the proposed mitigation would be effective to
substantially reduce the potential Significant Effects on the
Environment.
In addition to the information required pursuant to subdivision (b), the
TEIR shall also contain a statement indicating the reasons for
determining that various effects of the Project on the off-reservation
environment are not significant and consequently have not been
discussed in detail in the TEIR. In the TEIR, the direct and indirect
Significant Effects on the Environment, including each of the items in
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Appendix B, shall be clearly identified and described, giving due
consideration to both the short-term and long-term effects. The
discussion of mitigation measures shall describe feasible measures
which could minimize significant adverse effects, and shall
distinguish between the measures that are proposed by the Tribe and
other measures proposed by others. Where several measures are
available to mitigate an effect, each should be discussed and the basis
for selecting a particular measure should be identified. Formulation
of mitigation measures should not be deferred until some future time.
The TEIR shall also describe a range of reasonable alternatives to the
Project or to the location of the Project, which would feasibly attain
most of the basic objectives of the Project and which would avoid or
substantially lessen any of the Significant Effects on the Environment,
and evaluate the comparative merits of the alternatives; provided that
the Tribe need not address alternatives that would cause it to forgo its
right to engage in the Gaming Activities authorized by this Compact
on its Indian lands. The TEIR must include sufficient information
about each alternative to allow meaningful evaluation, analysis, and
comparison. The TEIR shall also contain an index or table of contents
and a summary, which shall identify each Significant Effect on the
Environment with proposed measures and alternatives that would
reduce or avoid that effect, and issues to be resolved, including the
choice among alternatives and whether and how to mitigate the
Significant Effects on the Environment. Previously approved land use
documents, including, but not limited to, general plans, specific plans,
and local coastal plans, may be used in a cumulative impact analysis.
The Tribe shall consider any recommendations from the County
concerning the person or entity to prepare the TEIR.
(d)
With regard to the Tribe’s obligation to address a Project’s potentially
significant off-reservation environmental impacts, the Tribe’s Projects
that have been initiated under the terms of the 1999 Compact shall be
subject to the relevant terms and conditions of the 1999 Compact then
in effect. Notwithstanding the foregoing, changes to existing
Facilities or ongoing Projects made after the effective date of this
Compact, to the extent the environmental impacts were not considered
as part of the Project under the Tribe’s 1999 Compact, and Projects
not initiated under the Tribe’s 1999 Compact before the effective date
of this Compact, will be subject to the terms and conditions specified
herein.
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Sec. 11.2. Notice of Preparation of Draft TEIR.
(a)
(b)
Upon commencing the preparation of the draft TEIR, the Tribe shall
issue a Notice of Preparation to the State Clearinghouse in the State
Office of Planning and Research (State Clearinghouse) and to the
County for distribution to the public. The Tribe shall also post the
Notice of Preparation on its website. The Notice of Preparation shall
provide all Interested Persons, as defined in section 2.19, with
information describing the Project and its potential Significant Effects
on the Environment sufficient to enable Interested Persons to make a
meaningful response or comment. At a minimum, the Notice of
Preparation shall include all of the following information:
(1)
A description of the Project;
(2)
The location of the Project shown on a detailed map, preferably
topographical, and on a regional map; and
(3)
The probable off-reservation environmental effects of the
Project.
The Notice of Preparation shall also inform Interested Persons of the
preparation of the draft TEIR and shall inform them of the opportunity
to provide comments to the Tribe within thirty (30) days of the date of
the receipt of the Notice of Preparation by the State Clearinghouse
and the County. The Notice of Preparation shall also request
Interested Persons to identify in their comments the off-reservation
environmental issues and reasonable mitigation measures that the
Tribe will need to have explored in the draft TEIR.
Sec. 11.3. Notice of Completion of Draft TEIR.
(a)
Within no less than thirty (30) days following the receipt of the Notice
of Preparation by the State Clearinghouse and the County, the Tribe
shall file a copy of the draft TEIR and a Notice of Completion with
the State Clearinghouse, the
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