- MEMORANDUM OF UNDERSTANDING BETWEEN THE STATE OF
- NEW YORK AND THE SENECA NATION OF INDIANS
¥ Understanding. It is the understanding of the
Parties that the Indian Gaming Regulatory Act ("IGRA") bestows certain
rights and duties upon the Parties to work cooperatively and to negotiate,
in good faith, to create a compact that will define the parameters of the
Nation's Class III gaming activities, and the respective rights of each
Party with regard to such gaming. Therefore, these discussions are
undertaken pursuant to federal law, and constitute
government-to-government talks between two sovereigns. Nothing herein
shall be binding upon either Party, unless and until the same is formally
ratified according to the procedures implemented by each Party for doing
so.
¥ Cultural Exchange. The Parties agree and understand
that the Nation possesses its own unique social customs, traditions, laws,
and history. In order to make persons working at a Class III facility
established pursuant to the Compact*1
more aware of the Nation's culture, traditions, laws and history, the
Nation may conduct periodic cultural seminars in a manner of its choosing
for all facility employees. It shall be the policy of the Nation and the
State that the employees at the facility shall attend such
seminars.
¥ Term of Agreement. The initial term of this
Agreement shall be 14 years, with an automatic 7-year renewal upon the
expiration of the initial 14 year term, unless either Party objects in
writing not less than 120-days prior to the end of the initial term. In
the event either Party does object to the automatic renewal of this
Agreement, the Parties agree to use their best efforts to address the
objecting Party's concerns through frequent and regular good faith
negotiations. In the event the objecting Party's concerns cannot be
overcome within a period of 120-days from the commencement of such
negotiations, either Party may submit the issue of the other Party's good
faith in the renewal negotiations to binding arbitration pursuant to
procedures set forth in the Compact. During the pendency of the
arbitration, the existing terms of the Compact shall continue to apply.
Notwithstanding the term of this Agreement, the Parties may amend,
eliminate, or terminate, any part or all of this Agreement, at any time,
by mutual consent. The Compact may be terminated by either Party at any
time if: (i) the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq.,
is repealed; (ii) the Nation adopts a referendum revoking Nation authority
to conduct Class III gaming; (iii) the State Constitution is amended to no
longer permit games of chance to be played by religious, charitable, or
non-profit organizations and no other provision of the Constitution is
amended to permit the operation of Class III gaming; or (iv) a Party
commits a material breach of this Agreement.
¥ Location of
Facilities. The Parties agree that any facilities shall be located on
"Indian lands" as that term is used and defined in the IGRA section
2703(4). The Parties agree that the Compact shall authorize the
establishment of a Class III gaming facility at locations in Niagara
County in the City of Niagara Falls and in Erie County in the City of
Buffalo. In addition, the Compact will facilitate the establishment of
Class III gaming on current reservation territory, should the Nation at
some point in the future decide to pursue such a facility, with the
precise location to be determined by the Nation at such later
date.
With respect to the facility in the City of Niagara Falls,
the Nation agrees that it will be located on the parcel of land designated
in the attached map of downtown Niagara
Falls.*2 With respect to the facility in the City of Buffalo, the
Nation has not yet decided upon an appropriate parcel of land suitable for
development of the facility.*3
Such parcels shall be utilized for gaming and commercial activities
traditionally associated with the operation or conduct of a casino
facility.
The State agrees to assist the Nation in acquiring such
parcels within the limits of the Seneca Settlement Act funds that the
Nation has committed to the acquisition of these parcels.*4
The State, through the Empire State Development Corporation (ESDC),
further agrees that it shall transfer fee title to the Niagara Falls
Convention Center and the parcel commonly known as the ''Splash Park' in
fee simple to the Nation for a payment from the Nation of $1.00 in funds
appropriated by the Seneca Settlement
Act.*5 The Nation further agrees that it shall lease back to the State
the Convention Center building for a period of 21 years for an annual
lease payment of $1.00. The State, in turn, shall lease to the Nation the
Convention Center building for a period of 21 years for an annual lease
payment of $1.00 until such time as the Nation constructs and begins
operation of a permanent Class III gaming facility in Niagara Falls, at
which time the Nation agrees to pay to the State the balance, as of April
1, 2002, of the general obligation bonds pledged in connection with the
Convention Center.
The State agrees that it shall support the
Nation in its use of the procedure set forth in the Seneca Settlement Act,
25 U.S.C. § 1 774f (c), to acquire restricted fee status for the parcels,
described supra, in the City of Buffalo and the City of Niagara Falls. For
purposes of such support from the State, the State agrees that it shall
assist the Nation directly with the Department of Interior, either in
writing or in person, as the Parties deem appropriate and necessary, to
obtain expeditious action on the Nation's applications under Section 1774f
and all other necessary approvals.
The Nation agrees that it will
use all but $5 million of the funds remaining from that appropriated by
the Seneca Settlement Act to acquire the parcels in the City of Niagara
Falls and the City of Buffalo. The Nation agrees that it shall dedicate
the remaining Seneca Settlement Act funds to acquire parcels to meet the
housing needs of members of the Seneca Nation. Unless otherwise agreed by
the Parties, such housing parcels shall be physically and immediately
contiguous and adjacent to either: (1) an existing reservation of the
Nation; or (2) the parcels of land acquired in the City of Niagara Falls
arid the City of Buffalo set forth above. The State agrees to support the
Seneca Nation in the development of such housing projects and shall
support any application made under Section 1 774f for a housing
development project for Nation members.
¥ Local Impact. The
Parties agree that host municipalities should be compensated to be able to
adjust to the economic development expected to result from the facilities
authorized under the Compact. Consistent with this goal, the State shall
reach financial agreements with the host municipal governments. Such
payments shall be part of the State Revenue Share as set forth
below.
¥ Type of Gaming. In addition to those types of games
already included in the Mohawk and Oneida gaming compacts, the Nation and
the State conceptually agree that the Compact shall include electronic
gaming devices, including "slot machines," as permitted Class III game.
The State agrees to use its best efforts and influence to attain any
necessary legislative approval for the inclusion of "slot machines" at the
Nation~s gaming facilities. The Nation agrees to facilitate the State's
efforts by contacting state officials and educating them on the benefits a
Class III gaming establishment(s) with "slot machines" will have for their
people and the Nation.
¥ Exclusivity and Revenue Share. The
State and the Nation agree that in entering into an Agreement with the
State to offer electronic gaming devices, including "slot machines," at
its facilities, the Nation is receiving an exclusive franchise to offer a
form of gaming no non-lndian person or entity has been permitted to offer.
Moreover, unless any other federally recognized Indian nation with a
reservation located within the State of New York as of the effective date
of the Compact seeks a gaming compact with the State, the State agrees
that the Nation shall enjoy total exclusivity with regard to electronic
gaming devices, including "slot machines," within the geographic area
defined by: ( I ) to the east, State Route 14 from Sodus Point to the
Pennsylvania border with New York; (2) to the north, the border between
New York and Canada; (3) to the south, the Pennsylvania border with New
York; and (4) to the west, the border between New York and Canada and the
border between Pennsylvania and New York. In no event shall the State
permit another Indian nation to establish a class III facility within a 25
mile radius of any facility authorized under this Agreement unless the
same is to be established on federally recognized Indian lands existing as
of the effective date of the Compact. In the event the State were to
breach this exclusivity agreement with the Nation, the Nation's revenue
share obligations pursuant to this exclusivity agreement shall no longer
apply.
This exclusivity agreement shall become null and void as to
any one of the sites if: (i) the Nation fails to commence construction on
such site within 36 months of the effective date of the Compact; or, (ii)
the Nation fails to commence gaming operations on such site within 60
months of the effective date of the Compact.
In exchange and
consideration for this exclusive franchise, the Nation agrees to share
with the State a portion of the proceeds from electronic gaming devices,
including "slot machines," based on the net drop of such machines (money
dropped into machines, after payout but before expense) and totaled on a
cumulative quarterly basis to be adjusted annually at the end of the
fiscal year, according to the sliding scale set forth below (this being
the "State Revenue Share" referred to elsewhere
herein):
| Years 1 - 4*6 | Years 5 - 7 | Years 8 - 14 |
| 18%*7 | 22%*8 | 25%*9 |
In the event the State reaches a revenue sharing agreement
with another Indian nation or tribe regarding electronic gaming devices of
a like kind or "slot machines" with revenue sharing provisions more
favorable that those set forth herein, such terms shall be automatically
applicable to the Compact at the Nation's option.
¥ Nation Tort
Claims Act. The Nation will establish its o~own tort claims act which
will provide due process and an impartial forum for the bringing of
private tort claims. The Nation agrees to carry general tort liability
insurance to pay claims up to an agreed upon minimum
threshold.
¥ Law Enforcement. Law enforcement at the
facilities shall be pursuant to applicable law governing law enforcement
jurisdiction on Indian lands.
¥ Employee Background Checks/State
Report/Nation Licensing. It is in both the State's and the Nation's
best interest to be able to represent to the public that every employee at
the facility has been screened. The screening of criminal histories and
associations of prospective employees will ensure the facility is not
infiltrated by organized crime or similar undesirable criminal elements
and assure the public that those operating the facility are of a certain
integrity. Every employee of a Class III gaming facility established under
this Compact shall be fingerprinted and undergo a BCI background
investigation. Within the Standards to be agreed upon between the State
and the Nation, only prospective gaming and Nation Commission employees
whose background checks reveal prior felony or gambling convictions,
illustrate bad associations or fail to provide certain information,
withhold material facts, or furnish untrue or misleading information, will
be Reported as deficient under the agreed upon employment standards. Once
a prospective employee has received a positive Report, it is solely within
the discretion of the Nation whether to issue the candidate a Nation
employee license. Similar to the employee background process, all
companies that conduct business with the Nation's gaming facilities are
likewise subject to a State Report and Nation license.
¥ Felony
Review Process. Applicants may seek review of a Negative Report when
the basis for their Negative Report was based solely upon conviction of a
felony offense. The applicant commences the review by seeking redress from
the appropriate governmental entity of the Nation.
If the Nation's
governmental entity determines, based upon extenuating circumstances
hereinafter set forth, that the criminal offense for which the applicant
was convicted will not have an affect on the applicant's fitness or
ability to perform the duties or responsibilities for which the applicant
seeks licensure, and that the applicant is of good moral character, the
Nation's governmental entity shall forward to the Review Commission (to be
established as set forth below)' a resolution requesting a de novo review
of the application. The extenuating circumstances that would justify such
a de novo review, all of which must be met to justify a resolution
requesting de novo review, are as follows:
a. the applicant's
offense does not equate greater than a class E felony;
b. the applicant
has not been convicted of more than one felony offense;
c. five years
have passed since the expiration of the sentence imposed for the felony
conviction;
d. the applicant has not been convicted of any misdemeanor
or felony offense since the expiration of the sentence imposed;
e. the
felony offense for which the applicant was convicted was a non-violent
offense; and,
f. if the offense for which the applicant was convicted
was alcohol or drug related, the applicant has completed a program of
rehabilitation or an employee assistance program.
Upon receipt of
the Nation's resolution requesting review, Review Commission Members shall
examine the background investigation conducted pursuant to the Compact,
the New York State Division of Criminal Justice Services criminal
fingerprint history, Federal Bureau of Investigation criminal fingerprint
history, the Royal Canadian Mounted Police criminal fingerprint history,
if applicable, and the application and supporting
documentation.
The Review Commission shall consist of 3 members who
are not employees of either the State or the Nation. One member shall be
selected by each party and the third shall be selected by the two. All
decisions rendered by the Review Commission must be consistent with the
terms and conditions of the Compact and shall be final.
The Review
Commission shall meet twice each year to consider resolutions for a de
novo review. Each applicant who has obtained a resolution for a de novo
review shall appear before the Review Commission at the first meeting of
the Review Commission after completion of its own review of the
information above to discuss the applicant's employment, criminal history,
and any other relevant and related matters. The Review Commission shall
determine the fitness or ability of the applicant to perform the duties or
responsibilities applied for and whether such applicant's employment would
impair public confidence and trust in the credibility and integrity of the
regulation and operation of gaming under the Compact. Within 5 days of
such hearing, the Review Commission shall make an appropriate
recommendation to the Nation Gaming Commission regarding the applicant,
which shall be binding on the Nation Gaming Commission.
¥
Regulatory Expenses. Pursuant to section 271 0(d)(3)(c)(iii) of the
IGRA, the Parties agree that the State shall charge to the Nation the
costs associated with the regulation of each Class III facility
established under this Agreement, and the Nation agrees to reimburse the
State for those costs (quarterly). The State agrees to consult with the
Nation on an annual basis and to provide the Nation with a comprehensive
budget estimate of the State's expected regulatory costs for the next
fiscal year. These costs shall include personal services, non-personal
services, and equipment, including but not limited to: the actual wages of
State employees, their fringe benefits, and their necessary expenses when
performing their duties under this Agreement. The Nation's agreement to
reimburse the State's regulatory costs is separate and apart from any
other agreements for payments made herein. The Nation shall have the right
to object to billed State regulatory expense pursuant to mutually agreed
procedures contained within the Compact.
¥ Ratification.
Because of the uncertainties caused by the case Saratoga Chamber of
Commerce v. Pataki, and further because both Parties desire an
expedited time line for development with as much certainty as possible, it
is mutually agreed that the Parties will jointly seek timely (1)
legislative authorization for the Governor to execute a Tribal-State
Compact with the Seneca Nation consistent with this Memorandum of
Understanding; and, (2) ratification of the Compact by the enrolled
members of the Nation and the United States Department of the
Interior.
__________________________________________________________________________
1. Compact shall mean the Nation-State Compact to be
negotiated between the State and the Nation pursuant to the terms agreed
herein.
2 In the event the specified Niagara
Falls site is not available for any reason, the Nation would propose an
alternate site.
3 In the event a site in the
City of Buffalo site is not available for any reason, the Nation would
propose an alternate site.
4. The Seneca
Settlement Act appropriated a total of $30 million to further specific
objectives of the Nation and its members.
5 The
State's obligation to transfer title to the "Splash Park" is contingent on
its legal ability to do so. Should it be unable to transfer the title, the
State agrees to assist the Nation in whatever manner appropriate to obtain
the "Splash Park;" in the best economic terms possible.
6 For purposes of this provision, Year I shall begin on
the date on which the first facility established pursuant to this
Agreement begins operation.
7 Payments during
this initial period to be made on an annual basis.
8 Payments during this period to be made on a semi-annual
basis.
9 Payments during this period to be made
on a quarterly basis.
Note: This document was obtained from the Fair Government Foundation Website