HomeMy WebLinkAboutIL186 Interlocal Agreement AGREEMENT
BETWEEN
THE CITY OF ANACORTES
AND
THE SAMISH INDIAN NATION
REGARDING THE PROVISION OF CITY SERVICES AND OTHER MATTERS
RELATING TO TRIBAL TRUST LANDS WITHIN THE CITY
Agreement between the City of Anacortes and the Samish Indian Nation
51349761 3
TABLE OF CONTENTS
Page
1. AGREEMENT. 1
2. RECITALS. 1
3. TERM-EFFECTIVE DATE 2
3.1 Effective Date 2
3.2 Term 2
3.3 Termination 2
4. SCOPE OF AGREEMENT. 2
5. TRIBE'S VOLUNTARY CONTRIBUTION FOR SERVICES. 2
5.1 First Voluntary Contribution 2
5.1.1 Tribal Payment to City 2
5.1.2 Payment Option 3
5.1.3 Modification of Assessment 3
5.1.4 Valuation Method 3
5.2 Second Voluntary Contribution 3
5.2.1 Tribal Payment to City 3
5.2.2 Payment Option 3
5.2.3 Schedule 3
5.3 No Payment in Lieu of Taxation of Gambling Activities 3
6. WATER SERVICE 4
6.1 Provision of Water Service 4
6.2 Application and Payments for Service 4
6.3 System Development Charge 4
6.4 Meter Charge 4
6.5 Water Service Payments 4
6.6 Public Works Permits 4
6.7 Compliance with City Water Code 4
6.8 Water Volumes and Pressure 5
7. SEWER SERVICE. 5
7.1 Provision of Sewer Service 5
7.2 Application and Payments for Service 5
7.3 System Development Charge 5
7.4 Sewer Connection Inspection Fee 5
7.5 Sewer Service Payments 5
7.6 Public Works Permits 5
7.7 Compliance with City Sewer Code 6
8. STORM DRAINAGE SERVICE. 6
8.1 Provision of Storm Drainage Service 6
8.2 System Development Charge 6
8.3 Sewer Connection Inspection Fee 6
8.4 Storm Drainage Payments 6
8.5 Application and Payments for Service 6
8.6 Public Works Permits 6
8.7 Compliance with Storm Drainage Standards 7
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51349761_3
9. SANITATION SERVICES. 7
9.1 Provision of Sanitation Services........... ............................. 7
9.2 Sanitation Services Payments .............. ......................................... 7
9.3 Compliance with City Sanitation Code........... .............. ................... 7
10. FIRE AND EMERGENCY MEDICAL SERVICES. ............................ . 7
10.1 Provision of Fire Protection Service 7
10.2 System Development Charge 7
10.3 Compliance with City Fire Protection Code 7
10.4 Additional Emergency Medical Services......... ...... .... ........................... 8
11. ROAD/TRANSPORTATION SERVICES. 8
11.1 General................................................ ................................................_...... 8
11.1.1 Transportation Impacts ................................................. 8
11.1.2 Improvement and Benefit Districts................................................. 8
11.2 Traffic Impact Study 9
11.3 System Development Charge 9
11.4 SR 20 Landscaping 9
12. LAW ENFORCEMENT SERVICES. 9
12.1 General 9
12.2 Public Safety Agreement .................................................................................. 10
12.3 Commencement of Tribal Law Enforcement Authority 10
12.4 Miscellaneous .................................................................................................. 10
13. OTHER SERVICES INVOLVING FEES AND CHARGES; REGULATIONS 10
13.1 In General 10
13.2 Non-Standard Services 10
13.3 Park Impact Fees 10
13.4 Additional System Development Charges 11
1 3.5 Si gnage 11
14. DISPUTES AND REMEDIES. ........................................................................_ 11
14.1 General 11
14.2 Notice 11
14.3 Informal Resolution 11
14.4 Arbitration 11
14.5 Compliance with Arbitration Decision 12
14.6 Standing to Arbitrate and Enforce Arbitration Decision 12
14.7 Extent of Remedies 12
14.8 Limited Waiver of Sovereign Immunity............................................................ 13
14.9 Alternative Dispute Resolution.................................... ............................... 13
15. MISCELIANEOUS. 13
15.1 Amendments 13
15.2 Taxation or Regulation by the City 13
15.3 Preservation of Tribal Self-Government 13
15.4 Rights Limited to City and Tribe 13
15.5 Notices 13
15.6 Severability 14
15.7 Integration- Construction .............................. ............................. 14
Page ii- Agreement between the City of Anacortes and the Samish Indian Nation
51349761 3
1. AGREEMENT.
This AGREEMENT REGARDING THE PROVISION OF CITY SERVICES AND
OTHER MATTERS RELATING TO TRIBAL TRUST LANDS WITHIN THE CITY
("Agreement") is between the Samish Indian Nation("Tribe") and the City of Anacortes
("City"). The Tribe and City are each a Party and collectively the "Parties." The Tribe and City
agree as follows.
2. RECITALS.
2.1 The Tribe and the State of Washington("State") have entered a Tribal-State
Compact, Class III Gaming (65 FR 38570, June 21, 2000, "Compact"). The Compact provides
authority for the Tribe to construct and operated a permanent gaming facility ("Gaming
Facility") on"Indian land" as defined by the Indian Gaming Regulatory Act, 25 U.S.C.§ 2701
et seq. ("IGRA").
2.2 The Tribe owns in fee 11.2 acres of land at the southeast corner of Highway 20
and Thompson Road(known as the "March's Point Property" or "Property"). The Property is
within the boundaries of the City of Anacortes. The Tribe has applied to place the Property into
trust status pursuant to federal law, at which time the land will become eligible as Indian land
under IGRA for a gaming facility. This process takes place pursuant to 25 U.S.C. § 465 and 25
C.F.R. Part 151, and results in the United States of America taking the land into trust for the
benefit of the Tribe.
2.3 Once the March's Point Property is taken into trust, the Property and the activities
taking place on that Property will generally not be subject to the regulatory authority of the City.
Because the Property is located within the City, the Tribe is to receive the same City services as
other comparable land within the City, so long as the Tribe is willing to pay for those services on
the same basis as other City property.
2.4 The Tribe intends to cover all financial impacts and costs that are incurred by the
City from the presence of the Tribe's Gaming Facility within the City, including the costs of
regular City services and the cost of any other services and impacts that can be identified by the
City or Tribe.
2.5 The City is prepared to support the Tribe's proposed gaming facility on the
March's Point Property and desires to enter into this Agreement with the Tribe to address
financial impacts and other relevant issues arising from the presence of the gaming facility.
2.6 The City intends to provide services requested by the Tribe to the March's Point
Property, the Gaming Facility and any directly-related facilities (e.g., restaurant, lodging or
entertainment) located thereon on the same basis as City services are provided to other
developments within the City, and to work cooperatively with the Tribe with regard to the
Tribe's construction and operation of the Gaming Facility. The Tribe intends to pay for
requested City services to the March's Point Property and the Gaming Facility on the same basis
such services are paid for by other developments within the City; to reimburse the City fairly for
other expenses the City incurs as a result of the presence of the March's Point Property and the
Gaming Facility and to offset any impacts the Gaming Facility has on the City, and to work
Page 1 —Agreement between the City of Anacortes and the Samish Indian Nation
51349761.3
cooperatively with the City with regard to the Tribe's construction and operation of the Gaming
Facility.
3. TERM—EFFECTIVE DATE.
3.1 Effective Date. This Agreement shall be effective upon the latter of(1) the
execution of this Agreement by both the City and the Tribe; (2) any approval of this Agreement
as may be required by the National Indian Gaming Commission and/or Bureau of Indian Affairs;
and, (3) the final decision placing the Property in trust status for gaming purposes.
3.2 Term. This Agreement shall remain in effect until it is terminated by mutual
written agreement of the City and Tribe, or pursuant to Agreement Section 3.3.
3.3 Termination. This Agreement may be terminated at any time and for any reason
by either Party. Unless otherwise agreed by the Parties under Agreement Section 15.1, upon
written notice of teimination to a Party, the Agreement shall terminate on the last day of the
sixtieth (60) month following the date of receipt of the written notice of teiiiiination by the Party
receiving such notice.
4. SCOPE OF AGREEMENT.
This Agreement addresses and resolves issues that the Tribe and the City have identified
as of the date of this Agreement. If issues of concern to either Party with regard to the Tribe's
March's Point Property or the Gaming Facility arise in the future, the Tribe and City agree to
work cooperatively to resolve such issues by the adoption of Agreement amendments or other
agreements, as may be necessary and appropriate. The City and the Tribe agree to participate in
good faith negotiations toward agreement on such issues whenever requested to do so by the
other Party.
5. TRIBE'S VOLUNTARY CONTRIBUTION FOR SERVICES.
5.1 First Voluntary Contribution.
5.1.1 Tribal Payment to City. The Tribe agrees to make a voluntary financial services
contribution to the City annually on April 30. The payment of the contribution shall be equal to
one hundred ninety-four one hundredth of one percent (.00194) of the fair market value of the
Property in that year (the "Section 5.1.1 percentage"), based on the fair market value of
comparable, privately-owned property of a commercial-retail nature, as determined by
assessment of the Property. The Section 5.1.1 Percentage shall be increased or decreased
annually by any amount of increase or decrease in the City's levy rate, only, (including regular,
special, excess or bond levies) against property within the City. The Tribe's payment to the City
under Agreement Section 5.1 shall not be subject to RCW 84.72.010. Separately, the Tribe is
contracting with Skagit County to address such local service providers as the Anacortes School
District, Fidalgo Park and Recreation District, Skagit County Emergency Medical Services and
Skagit County Public Hospital District No. 2.
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51349761 3
5.1.2 Payment Option. The Tribe may choose to make its financial services
contribution under this section no less than quarterly, payable to the City. Payment may also be
made by electronic or other means, as agreed by the Parties.
5.1.3 Modification of Assessment. The City will submit to the Tribe its annual
estimate of the real estate assessment of the Property, on or around October 1 of each year. The
Tribe shall have thirty (30) days to respond to the City's proposed valuation. The parties shall
attempt to negotiate and informally resolve any differences in valuation within thirty (30) days.
If the value cannot be agreed upon by Parties within this time frame, the valuation shall be
submitted to an independent arbitrator selected by mutual consent of the Parties, whose annual
valuation of the Property for purposes of this Agreement shall be final and binding on the
Parties.
5.1.4 Valuation Method. The valuation assessment of the Property shall not be based
on the actual revenues or projected revenues from gaming at the Gaming Facility. Provided,
however, in determining the valuation of the Property and improvements thereon,the cost
approach, income (capitalization of net income) approach and comparable sales (if applicable)
approach to valuation for comparable commercial/retail property may be employed.
5.2 Second Voluntary Contribution.
5.2.1 Tribal Payment to City. The Tribe agrees to make a voluntary financial services
contribution to the City annually on February 1. The payment of the contribution shall be equal
to one percent(1%) of annual retail sales at the Property (as described under Chapter 82.08
RCW) and four percent(4%) for annual sales of lodging facilities (as described under Chapter
67.28 RCW).
5.2.2 Payment Option. The Tribe may choose to make its financial services
contribution under this section no less than quarterly, payable to the City. Payment may also be
made by electronic or other means, as agreed by the Parties.
5.2.3 Schedule. The Tribe will file annually with the City a statement substantially
similar to that required under Chapter 458.20 WAC. If the amount(s) under Agreement
Section 5.2 cannot be agreed upon by Parties, the issue(s) shall be submitted to arbitration under
Agreement Section 14. In the event the arbitrator determines that the Tribe's payment to City
was under-reported by three percent(3%) or more in any year and the under-payment was
deliberate,the Tribe shall pay the City's costs and attorney fees, including expert accounting or
other fees. If the arbitrator determines that the City's figure regarding what is owed by the Tribe
under Agreement Section 5.2 would result in an over-payment by the Tribe, the City shall pay
the Tribe's costs and attorney fees, including expert accounting and other fees.
5.3 No Payment in Lieu of Taxation of Gambling Activities. It is understood by
the parties that the Tribe shall enact and enforce such laws and regulations, in addition to federal
laws and regulations and under the Compact, to address the conduct of gambling activities at the
Gaming Facility. As a result, there shall be no payment by Tribe to City in lieu of any City
taxation of gambling activities under Chapter 9.46 RCW or other law.
Page 3 —Agreement between the City of Anacortes and the Samish Indian Nation
51349761.3
6. WATER SERVICE.
6.1 Provision of Water Service. The City will provide water service to the Property
and to the Gaming Facility on the same basis that the City provides water service to other
property within the City. The Tribe will perform the actual installation and construction of water
service to the Gaming Facility and associated facilities, using a water meter provided by the City.
Except for meter(s), the Tribe will own, operate and maintain all water improvements on the
Property.
6.2 Application and Payments for Service. The Tribe will file a standard
application for water service with the City, and upon regular review and approval, the City will
notify the Tribe that the application is complete and that the Tribe has authorization to install the
service. The City will process the application and issue the appropriate authorization in
accordance with standard City procedures for processing such applications and issuing
authorizations for water service.
6.3 System Development Charge. The Tribe will pay the standard City capital
facility charges, impact fees, connection, system development and similar charges (collectively,
"System Development Charges") for water systems applicable to the type and size of
development to be constructed. The payment shall be made within sixty (60) days of the
connection to the City meter of the Gaming Facility or other Property improvement.
6.4 Meter Charge. The Tribe will pay the standard City charge for the size of
meter(s) applied for by the Tribe and approved by the City, for the Gaming Facility or other
Property improvement. The City will provide the meter to the Tribe, and provide any
maintenance and repair on the same basis that the City provides such service to other water
meters within the City.
6.5 Water Service Payments. The Tribe will make regular monthly payments to the
City based on regular rates and charges for water service set by the City for commercial property
inside City limits. If the City establishes classes of customers and varies rates charged for water
service,the City will charge the Tribe the comparable rate for developments of the size and type
for the Gaming Facility. In establishing classes of customers, the City shall act in good faith and
will not use the establishment of a separate class as a basis to charge the Gaming Facility unique
or discriminatory water service rates and charges.
6.6 Public Works Permits. The Tribe will obtain public works permits and
otherwise comply with applicable provisions of the Anacortes Municipal Code ("AMC") if the
Tribe's construction work, including but not limited to installation of water service connections,
involves construction or obstruction that will disturb the surface or subsurface of any City street,
sidewalk or right-of-way. The City will review and process any applications from the Tribe for a
public works permit under the regular City process.
6.7 Compliance with City Water Code. The Tribe will meet or exceed the
substantive provisions of AMC, including uniform building, fire and sewer codes, in receiving
water service from the City on the Property.
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51349761.3
6.8 Water Volumes and Pressure. The Tribe will conduct any necessary or
appropriate tests to determine whether there is sufficient water volumes and pressure in the
City's water system in the vicinity of the Property to provide adequate volumes and pressure for
potable and irrigation water and fire protection purposes. If there is not sufficient water volumes
and pressure for these purposes, the Tribe will be responsible for making necessary
improvements to the City's water system in the vicinity of the Property in order to provide
adequate water and fire-flow service. In the event the Tribe's improvements to the City water
system may allow service to other properties, the City will enter into a late-comer agreement
with the Tribe to provide for the payment by other properties and payment by City to Tribe of the
pro rata share of costs incurred in the water system development.
7. SEWER SERVICE.
7.1 Provision of Sewer Service. The City will provide sewer service to the Property
and to the Gaming Facility on the same basis that the City provides sewer service to other
property within the City. The Tribe will perform the actual installation and construction of sewer
service to the Gaming Facility and associated facilities.
7.2 Application and Payments for Service. The Tribe will file a standard
application for sewer service with the City. Upon regular review and approval of the application,
the City will notify the Tribe that the application is complete and that the Tribe has authorization
to install the service. The City will process the application and issue the appropriate
authorization in accordance with standard City procedures for processing such applications and
issuing authorizations for sewer service.
7.3 System Development Charge. The Tribe will pay the standard City System
Development Charges for sewer systems applicable to the type and size of development to be
constructed, within sixty (60) days after connection of the Gaming Facility or other Property
improvements to the City sewer system.
7.4 Sewer Connection Inspection Fee. The Tribe will pay the standard sewer
inspection (including connection inspection) fees imposed by the City on property comparable to
the Gaming Facility or other improvements on the Property. The City will conduct the
appropriate inspections.
7.5 Sewer Service Payments. The Tribe will make monthly payments to the City
based on regular retail rates and charges for sewer service set by the City for similar commercial
properties inside City limits. If the City establishes classes of customers and varies rates charged
for sewer service, the City will charge the Tribe the comparable rate for property of the size and
type for the Tribe's Gaming Facility or other improvements on the Property. In establishing
classes of customers,the City shall act in good faith and will not use the establishment of a
separate class as a basis to charge the Gaming Facility unique or discriminatory sewer service
rates and charges.
7.6 Public Works Permits. The Tribe will obtain public works permits and
otherwise comply with applicable provisions of the City Code if the Tribe's construction work,
including but not limited to installation of sewer service connections, involves construction or
Page 5 —Agreement between the City of Anacortes and the Samish Indian Nation
51349761 3
obstruction that will disturb the surface or subsurface of any City street, sidewalk or right-of-
way. The City will review and process any applications from the Tribe for a public works permit
under the regular City process.
7.7 Compliance with City Sewer Code. The Tribe will meet or exceed the
substantive provisions of AMC, including applicable uniform building, fire and sewer code, in
receiving sewer service from the City on the Property.
8. STORM DRAINAGE SERVICE.
8.1 Provision of Storm Drainage Service. The City will provide storm drainage and
surface water management services ("storm drainage")to the Property and to the Gaming
Facility on the same basis that the City provides storm drainage service to other property within
the City. The Tribe will perform the actual installation and construction of storm drainage
service to the Gaming Facility and associated facilities.
8.2 System Development Charge. The City does not currently have a storm
drainage System Development Charge in place for storm drainage service. If the City adopts and
finalizes such a Charge for all properties within the City before construction of the Tribe's
Gaming Facility has been ongoing for sixty(60) days or more, then the Tribe will pay the storm
drainage System Development Charge on the same basis as similar size and type of property
within the City.
8.3 Sewer Connection Inspection Fee. The Tribe will pay the standard sewer
(including connection inspection) fees imposed by the City on property comparable to the
Gaming Facility proposed by the Tribe. The City will conduct the appropriate inspection.
8.4 Storm Drainage Payments. The Tribe will make monthly payments to the City
based on regular retail rates and charges for storm drainage services set by the City for similar
commercial properties inside City limits. If the City establishes classes of customers and varies
rates charged for storm drainage services, the City will charge the Tribe the comparable rate for
property of the size and type for the Tribe's Gaming Facility or other improvements on the
Property. In establishing classes of customers,the City shall act in good faith and will not use
the establishment of a separate class as a basis to charge the Gaming Facility unique or
discriminatory sewer service rates and charges.
8.5 Application and Payments for Service. The Tribe will file a standard
application for storm drainage service with the City, and upon regular review and approval, the
City will notify the Tribe that the application is complete and that the Tribe has authorization to
install the service. The City will process the application and issue the appropriate authorization
in accordance with standard City procedures for processing such applications and issuing
authorizations for storm drainage service.
8.6 Public Works Permits. The Tribe will obtain public works permits and
otherwise comply with applicable provisions of the City Code if the Tribe's construction work,
including but not limited to installation of storm drainage service connections, involves
construction or obstruction that will disturb the surface or subsurface of any City street, sidewalk
Page 6 —Agreement between the City of Anacortes and the Samish Indian Nation
513497613
or right-of-way. The City will review and process any applications from the Tribe for a public
works permit under the regular City process.
8.7 Compliance with Storm Drainage Standards. The Tribe will meet or exceed
the substantive provisions of the AMC for storm drainage in receiving stow' drainage service
from the City for the Property. The Tribe will comply with standards applicable to the City
under the Clean Water Act and other authority for the detention and discharge of storm water,
including mitigation for water quality and capacity impacts on downstream systems.
9. SANITATION SERVICES.
9.1 Provision of Sanitation Services. The City will provide solid waste handling
services to the Property and to the Gaming Facility, including but not limited to sanitation,
garbage, refuse and recycling services, on the same basis that the City provides sanitation
services to other property within the City.
9.2 Sanitation Services Payments. The Tribe will make monthly payments to the
City based on regular rates and charges for sanitation services for similar commercial properties
set by the City for customers inside City limits. If the City establishes classes of customers and
varies rates charged for sanitation services, the City will charge the Tribe the comparable rate for
the sanitation services (e.g., type and size of containers and frequency of service) for the Tribe's
Gaming Facility or other improvements on the Property. In establishing classes of customers,
the City shall act in good faith and will not use the establishment of a separate class as a basis to
charge the Gaining Facility unique or discriminatory sanitation services rates and charges.
9.3 Compliance with City Sanitation Code. The Tribe will meet or exceed the
substantive provisions of the AMC for solid waste management in receiving sanitation service
from the City on the Property.
10. FIRE AND EMERGENCY MEDICAL SERVICES.
10.1 Provision of Services. The City will provide fire prevention, fire suppression and
emergency medical services to the Gaming Facility and other improvements on the Property on
the same basis that the City provides such services to other property within the City.
10.2 System Development Charge. The Tribe will pay the standard City impact fee
for fire services applicable to the type and size of development to be constructed, at the earlier of
the time of the City's approval of plans under Agreement Section 10.3, or prior to final
occupancy of the Gaming Facility.
10.3 Compliance with City Fire Protection Code. The Tribe will meet or exceed the
substantive provisions of the AMC and international building and fire codes in receiving fire
protection service from the City on the Property. The Tribe will meet or exceed State and local
codes, fire and life safety standards, including the current local and state building and fire codes
at time of development. If the Tribe chooses to have the City perform standard building-related
code review of the design of the Tribe's Gaming Facility and associated facilities and subsequent
standard periodic inspections of the facilities, the Tribe will pay the standard fee charged by the
City for such inspections.
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5134q761 3
10.4 Additional Emergency Medical Services. The Tribe shall separately fund,
through the Skagit County EMS program for advanced life support (paramedic — "ALS")
services, ALS services to the Property. If Tribe does not make payments to Skagit County
EMS, the Tribe shall separately pay annually to the City for ALS services to the Property thirty-
five cents ($.35) per one thousand dollars ($1,000) of the fair market value of the Property in that
year, based on the fair market value of comparable, privately-owned property of a commercial-
retail nature, as determined by assessment of the Property under Agreement Section 5.1.
11. ROAD/TRANSPORTATION SERVICES.
11.1 General.
11.1.1 Transportation Impacts. The Tribe's Property and proposed Gaming Facility is
located at the south-east corner of the intersection of State Highway 20 and Thompson Road. In
order to transfer the Property into federal trust status for the purpose of gaming pursuant to the
Indian Gaming Regulatory Act, the Tribe must and is addressing all transportation-related
impacts as part of an Environmental Impact Study and as part of its business plan. The Tribe
will be addressing and mitigating any transportation-related impacts as part of its planning and
construction of a Gaming Facility and associated facilities. The Tribe acknowledges that its
proposed development may impact local roads, including City roads. The Tribe commits to
making any and all necessary road modifications and improvements necessary to maintain the
current level of service (LOS "C") on affected State, County and City roads and intersections,
and to provide safe access to and from the Property. Local roads in the vicinity of the Tribe's
Property include Thompson Road, Summit Park Road, Stevenson Road, and Reservation Road.
Other roads may be impacted by the presence of the Tribe's Gaming Facility on the Property. If
as a result of traffic increases following commencement of operations, measured over a
statistically qualified period, in excess of that identified and mitigated pursuant to the traffic
impact study under Section 11.2 and the EIS, the parties shall work cooperatively to address such
unanticipated impacts under Agreement Section 4.
11.1.2 Improvement and Benefit Districts. The Tribe consents to the jurisdiction of
the City over, and for the inclusion of, the Property within such Local Improvement Districts,
Transportation Benefit Districts, or other systems or districts authorized by Washington state law
for the funding of improvements to local roads that are impacted by traffic related to the
Property. The Property shall be treated in the same manner as other, similarly situated private
property. In establishing classifications of property or distinctions among property, the City
shall act in good faith and will not use the establishment of a separate class as a basis to assess or
charge the Property unique or discriminatory assessments or charges. The Tribe is entitled to all
legal rights of any private property to notice and opportunity to contest City actions, including
assessments or payment requirements, arising from any such district or system. Notwithstanding
RCW 35.50.010, or any other law, the City shall have no right to assert a lien against or foreclose
upon the Property for any disputed or delinquent assessment or charge that may arise from a City
district or system authorized by this Section 11.1.2. The City's exclusive right to enforce an
assessment or charge arising from a City district or system shall be through Agreement Section
14.
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11.2 Traffic Impact Study. The Tribe and/or a contractor will conduct a traffic
impact study for the Tribe's Property and the proposed Gaming Facility. The Tribe will provide
a copy of that traffic impact study to the City when completed in draft form and will receive and
respond to the City's comments and recommendations with regard to the study and
recommendations contained therein. The Tribe will pay on a full cost or shared cost basis (if
recommended improvements or modification are not due entirely to the Tribe's development),
depending on the conclusions of the traffic impact study,the reasonable cost of necessary street,
road or highway improvements determined to be necessary as a result of the study or WSDOT
requirements, subject to the Tribe's right to initiate an appropriate dispute resolution process
with regard to such costs. In the event the City concludes that the traffic impact study does not
adequately identify transportation system improvements to be provided to local streets either on
a full cost or shared cost basis by the Tribe, or does not establish an adequate time period for
completion of recommended improvements, the City may initiate binding arbitration as
established by Section 14 of this Agreement. In any arbitration under this section,the issued to
be arbitrated shall be limited to (1) whether the traffic impact study adequately identifies
transportation impacts to the local streets related to operation of the Gaming Facility and any
related development on the Property; (2)whether the transportation system improvements
identified to be provided either on a full cost or shared costs bases by the tribe pursuant to the
final study are sufficient to prevent the Gaming Facility and related development causing the
degradation of transportation levels of service on local streets to levels of service that are deemed
unacceptable according to transportation industry standards commonly applicable in cities such
as the City; (3)if the improvements are necessary to prevent such degradation of levels of
service; and(4)whether the time schedule established by the study for completion of required
improvements is adequate and, if not, what time schedule would be adequate. The Tribe will
provide any transportation system improvements to local streets that are determined by the
arbitration process to be necessary to prevent such degradation of levels of service, according to
the schedule and on the full or shared cost basis determined by the arbitration process.
11.3 System Development Charge. The Tribe will pay the standard City System
Development Charges (and/or impact fees) for city roads applicable to the type and size of
development to be constructed, within sixty(60) days after construction of the Gaming Facility
commences.
11.4 SR 20 Landscaping. The Tribe shall comply with standards established by the
State, in agreement with the City, for landscaping and frontage improvements to SR 20 adjacent
to the Property.
12. LAW ENFORCEMENT SERVICES.
12.1 General. Once the Tribe's Property is in trust status,the Property will not
generally be subject to State or local law enforcement authority. At present,the Tribe does not
have its own law enforcement force, has not enacted criminal laws or procedures applicable to
the Tribe or the Property,and does not plan to establish its own law enforcement force in the
near future. The Tribe therefore desires that the City provide law enforcement services to the
Property. By this Agreement,the Tribe consents and agrees that the City may exercise State and
local criminal law jurisdiction over the Property until such time as the Tribe enacts its own
criminal code and establishes its own police force. The City will exercise this law enforcement
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51349761.3
authority over the Property in non-discriminatory fashion. The parties intend to further address
this jurisdiction in a separate agreement ("public safety agreement").
12.2 Public Safety Agreement. The Tribe and the City will separately negotiate and
finalize such a public safety agreement. The scope of the City's law enforcement authority,
procedures for coordination between the City and Tribe, conducting criminal background checks
and other activities may be appropriate subjects for a public safety agreement.
12.3 Commencement of Tribal Law Enforcement Authority. In the event the Tribe
establishes its own police force with authority over the Property and Gaming Facility, the City
and the Tribe will negotiate a further or new public safety agreement that will address the
enforcement of criminal laws on the Property and in the Gaming Facility; incarceration,
prosecution and related activities. A public safety agreement may also include Skagit County
and the State.
12.4 Miscellaneous. Nothing in this Agreement affects any civil or criminal
jurisdiction the State of Washington or the United States may have over the property pursuant to
Public Law 280. Except for authorized federal, state, county, City or tribal law enforcement
officers, no person may possess firearms on the Property or in the Gaming Facility.
13. OTHER SERVICES INVOLVING FEES AND CHARGES;
REGULATIONS.
13.1 In General. The City and the Tribe have attempted in this Agreement to identify
those City services that the Tribe would like the City to provide to the Property and/or the
Gaming Facility, or which the City provides to similarly situated properties, for which the City
as a standard practice imposes fees or charges on those receiving the services. In the event the
City or Tribe identify other City services that either the Tribe would like the City to provide to
the Property or that the City provides to properties within its boundaries as a matter of due
course, the City and the Tribe will determine on a mutually agreeable basis, subject to arbitration
in the event agreement cannot be reached, what level of service will be provided by the City and
the fee or charge that the Tribe will pay to the City in exchange for receiving such services.
13.2 Non-Standard Services. The Tribe may request that the City provide, in relation
to the Property and the Gaming Facility, services that are not standard City services, that are not
covered by this Agreement, or that are provided only pursuant to special agreement calling for a
requester's payment for such services. One example might be a request for additional police
coverage for a special event taking place at the Gaming Facility. In the event the Tribe requests
such non-standard services and the City is willing and able to provide the services, the City will
provide the service on a cost recovery basis as mutually agreed to by the City and the Tribe,
subject to arbitration in the event agreement cannot be reached.
13.3 Park Impact Fees. The City has adopted and maintains a parks and recreation
impact fee ordinance that is applicable to the development and use of certain occupancies within
the City. See Chapter 3.92 AMC. Any development on the Property that, at the time of permit
application or other notice to the City, qualifies under the Anacortes Municipal Code for
application of a parks and recreation impact fee, shall be subject to such fee. The Tribe shall pay
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51349761 3
to the City the impact fee within sixty (60) days of the date of commencement of construction of
the occupancy subject to the fee.
13.4 Additional System Development Charges. In the event the City enacts other
system development charges and/or impact fees, e.g., for schools or libraries, and such charges
are in place and effective sixty (60)days or less after the Tribe has commenced construction of
its Gaming Facility,the Tribe will be responsible for such charges under the same conditions and
circumstances as similarly situated properties would be subject to such charges.
13.5 Signage. The Tribe shall not install or maintain on the Property any signage that
advertises property, goods or services not located on the Property; provided any such signage
may advertise or display the Tribe's enterprises and activities as well as events and activities of
the City, other local governments, local community organizations and not-for-profit entities. The
Tribe may install and maintain any signage for the Property and Gaming Facilities as may be
authorized under the AMC. Signage on the Property shall comply with the AMC,except for one
(1)monument sign that (a) may include video, LCD or similar displays with changing video
images or other moving displays; and, (b) does not exceed 50 feet in height, 30 feet in width and
450 square feet of display area. The City agrees to consider and negotiate in good faith pursuant
to this Agreement a request by the Tribe for additional signage that may not strictly comply with
requirements and restrictions under the AMC. There shall be sufficient set back from SR 20 to
prevent traffic hazards or safety issues.
14. DISPUTES AND REMEDIES.
14.1 General. Jurisdiction under this Section 14 is limited to the terms and provisions
of this Agreement, and no jurisdiction is granted for any other dispute or issue.
14.2 Notice. In the event either the City or Tribe believes that the other Party is not
complying with any provision of this Agreement,the City or Tribe will first give written notice
to the other Party of the alleged violation, identifying the specific provision of this Agreement
that the other Party is allegedly not complying with,the factual basis for the alleged
noncompliance, and the suggested solution to the alleged non-compliance.
14.3 Informal Resolution. The Tribe and City agree to cooperate to the greatest
degree possible in the implementation and enforcement of this Agreement. If a violation of this
Agreement is alleged by either Party as set forth above,the Parties will have thirty(30) days to
meet and attempt infoiinal resolution of the alleged violation. This time period may be extended
as long as may be necessary by mutual agreement of the Parties. If it is agreed that
noncompliance exists, the Party who is in violation will have thirty (30) days to cure the
noncompliance or, in the event it is not practicable to cure the noncompliance within this time
frame, initiates steps to cure the noncompliance within this time frame with due diligence and
completes the cure as soon as reasonably practicable. In such event,the notifying Party will not
have any other remedy under this Agreement.
14.4 Arbitration.
14.4.1 In the parties have not reached informal resolution of any alleged noncompliance
under this Agreement, that the Party alleging noncompliance may give the other Party written
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51349761.3
notice initiating arbitration. Similarly, a Party seeking arbitration as provided elsewhere in this
Agreement may initiate arbitration by giving written notice to the other Party as provided for in
this Agreement. The parties shall attempt to agree on an arbitrator. If the City and Tribe cannot
agree on an arbitrator, they will each, within a fifteen(15) day period, appoint their own
arbitrator, who will jointly select a third arbitrator. If the two arbitrators cannot agree on a third
arbitrator, the third arbitrator will be appointed by either the presiding judge for the Superior
Court of Skagit County or the presiding judge of the United States District Court for the Western
District of Washington, at the option of the parties.
14.4.2 Arbitration shall be conducted pursuant to the rules for commercial arbitration
maintained by the American Arbitration Association("AAA Rules"), including authority of the
Arbitrator to authorize and compel discovery. Except for application of AAA Rules, the
American Arbitration Association shall have no interest or involvement in Agreement arbitration
proceedings. Unless otherwise determined by the arbitrator or arbitration panel, within forty five
(45) days after the arbitrator or arbitration panel has been selected,the arbitrator or arbitration
panel will conduct and complete an arbitration hearing on the matter in dispute, and will render
its decision. The decision of the arbitrator or arbitration panel will be binding on the City and
the Tribe. The Tribe and the City will each pay one-half of the cost of the single or third
arbitrator. Arbitration shall be the sole and exclusive judicial remedy available to the parties
under this Agreement, except as set out in this Section 14.
14.5 Compliance with Arbitration Decision. The decision of an arbitrator or
arbitration panel rendered under this section shall be final for the City and the Tribe. In the event
the Party against whom an arbitration decision is rendered does not comply with the arbitration
decision, the prevailing Party may seek judicial enforcement in the Skagit County Superior Court
or in the United States District Court for the Western District of Washington, whose decision
will be final. A Party may also seek judicial resolution under this subsection of a dispute over
whether the Party is in fact complying with the arbitration decision. If, after a final arbitration or
judicial decision, the noncompliant Party has not complied with the arbitration decision and does
not comply with that decision, the prevailing Party may terminate this Agreement upon ninety
(90) days written notice to the noncompliant Party. The Tribe shall remain responsible for all
payments to City under this Agreement during any period prior to Agreement termination.
14.6 Standing to Arbitrate and Enforce Arbitration Decision. Enforcement of this
Agreement, and standing to initiate dispute resolution, arbitration, or any other remedy provided
for in this Agreement is limited to the City and the Tribe. No provision or language in this
section or anywhere in this Agreement shall be deemed to confer standing on any third party to
enforce the rights or the City or the Tribe, or to grant any substantive rights to any person or
entity other than the substantive rights specifically granted to the City and the Tribe in this
Agreement.
14.7 Extent of Remedies: Remedies under this Agreement and this section are
expressly limited to (a) actual damages; (b) specific performance under this Agreement; and
(c) the City's right to cease utility service to the Property if payment for such services are not
received within thirty (30) days following an agreement of the Parties regarding a dispute or the
decision in arbitration under Agreement Section 14. It is the express agreement of the City and
the Tribe that remedies under this Agreement will not include claims other than those relating
Page 12—Agreement between the City of Anacortes and the Samish Indian Nation
51349761.3
directly to compliance with the specific terms of this Agreement, and that in particular claims in
tort or for punitive damages are prohibited. The Tribe and the City will each be responsible for
their own attorney costs and expenses associated with enforcement and implementation of this
Agreement, except as otherwise specifically stated herein.
14.8 Limited Waiver of Sovereign Immunity. The Tribe and the City agree to waive
their respective sovereign immunity, in limited fashion, for purposes of this Agreement. The
waiver of sovereign immunity made by each Party is limited to the specific actions and remedies
authorized in this Agreement, and is made only in favor of the other Party and not for any other
person, party or entity. The City and the Tribe expressly consent to the jurisdiction of the
Superior Court for Skagit County and the United States District Court for the District of Western
Washington for the claims specifically authorized in this Agreement. The Tribe specifically
waives any legal right it may have under federal law to exhaustion of Tribal Court remedies
before any action may be brought by the City in Superior or District Court as set out in this
section.
14.9 Alternative Dispute Resolution. The City and the Tribe may by separate written
agreement pursue alternative dispute resolution methods rather than the arbitration and judicial
proceedings authorized under this section. In the event the City and Tribe agree to pursue
alternative dispute resolution for a particular claim, the Parties shall do so in writing and indicate
whether the dispute resolution methods set out in this section are waived or not.
15. MISCELLANEOUS.
15.1 Amendments. Either the City or the Tribe may give the other Party written
notice at any time, initiating negotiations to amend, modify or terminate this Agreement. In such
event, the Parties will enter into good faith negotiations regarding the proposed amendment,
modification or termination. This Agreement will remain in effect until amended, modified or
terminated pursuant to such negotiations, or terminated as elsewhere provided by this
Agreement.
15.2 Taxation or Regulation by the City. Nothing in this Agreement shall be
deemed to authorize the City to impose any tax, fee, charge, or assessment upon the Tribe, Tribal
Property or any Tribal activity, or to exercise any regulatory authority over the Tribe, Tribal
Property or any Tribal activity, except for fees, charges or regulatory authority expressly
authorized by this Agreement.
15.3 Preservation of Tribal Self-Government. Nothing in this Agreement authorizes
the City to regulate or interfere in any manner with the government of the Tribe.
15.4 Rights Limited to City and Tribe. This Agreement is exclusively for the benefit
of and governs only the respective authorities and relations between the Tribe and the City, and
does not create, grant or confer any rights whatsoever to any third party, person or entity.
15.5 Notices. All notices authorized under this Agreement shall be given by first class
mail, postage prepaid. Notice so mailed shall be deemed to have been received on the third (3)
business day following the date of mailing. Notices shall be to the following addresses or to
such alternative addresses as are provided for in a written notice given by one Party to the other:
Page 13 —Agreement between the City of Anacortes and the Samish Indian Nation
51349761.3
For the City: For the Tribe:
Mayor General Manager
City of Anacortes Samish Indian Nation
P.O. Box 547 P.O. Box 217
Anacortes, WA 98221 Anacortes, WA 98221
The Parties are also encouraged to communicate with each other by phone,e-mail, or by
other communication methods, but the method specified in this section is required for all official
notices unless expressly agreed to in the alternative in writing.
15.6 Severability. In the event any section or provision of this Agreement is held
invalid, either Party may initiate negotiations pursuant to Agreement Section 15.1 to amend or
modify this Agreement in response to such invalidity and, if the Party is not satisfied with the
outcome of such negotiations, may terminate this Agreement by giving written notice of
termination to the other Party pursuant to the terms of this Agreement. If neither Party exercises
its rights under this subsection, it is the intent of the City and the Tribe that the remaining
sections and provisions of the Agreement will continue in full force and effect.
15.7 Integration—Construction. This Agreement contains the complete and
exclusive expression of the City's and the Tribe's intent and agreement. Both Parties were
advised by legal counsel, and participated in the drafting of this Agreement. There shall be no
construction of this Agreement based on the origination or edits of any provision of this
Agreement by a Party.
16. EXECUTION AND APPROVAL
Each of the below representatives of the Parties represent and warrant that each has been
duly authorized to execute the Agreement for and on behalf of the identified Party.
Page 14—Agreement between the City of Anacortes and the Samish Indian Nation
51349761.3
CITY OF ANACORIES SAMISH INDIAN NATION
Laurie Gere,, Mayy/or Thomas D. Wooten, Chairman
Date: ' /4 _/Y Date: _�- J� .2-0/4/
ATTEST: SA' e.3"17,:froP
JZ-1511-1) Leslie Eakwood, General Manager
Steve Hoglund, City Clerk Date:
Date: I.1 Y
APPROVED AS TO FORM:
Tribal A o ey
Date: (1<A `'111�
Page 15 -Agreement between the City of Anacortes and the Samish Indian Nation
51349761.3