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EXHIBIT 99.2
BEFORE THE NATIONAL
INDIAN GAMING COMMISSION
IN THE MATTER OF: )
)
American Casino Enterprises, Inc.; ) Docket No. NIGC 94-2
Notice of Violation, No. NOV-94-03; )
Dated July 15, 1994 ) NOV-94-03
___________________________________________________)
SETTLEMENT AGREEMENT
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SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into and effective
this 1st day of February, 1996, by and between American Casino Enterprises,
Inc. ("ACES") and the National Indian Gaming Commission (the "Commission")
relating to the Commission enforcement action discussed herein.
RECITALS
1. On or about July 15, 1994, then Commission Chairman Xxxxxxx X.
Xxxx, filed a Notice of Violation, No. NOV-94-03, Docket No. NIGC 94-2, against
ACES relating to ACES' relationship with the Table Mountain Band of Indians of
the Table Mountain Rancheria (the "Tribe" or "Table Mountain") and its gaming
operation, the Table Mountain Rancheria Casino and Bingo (the "Table Mountain
Casino") (hereinafter referred to as the "Notice of Violation").
2. Simultaneously with the Notice of Violation, the Commission
filed a Notice to Show Cause relating to the allegations in the Notice of
Violation, as well as ACES' alleged relationship with the Cher-Ae Indian
Community of the Trinidad Rancheria and its gaming operation, the Cher-Ae
Heights Casino (hereinafter the "Notice to Show Cause").
3. On or about August 15, 1994, ACES filed a Notice of Appeal of
the Notice of Violation and a Response to the Notice to Show Cause, denying the
allegations contained therein.
4. On or about August 25, 1994, ACES filed a Supplemental
Statement to its Notice of Appeal of the Notice of Violation, further denying
the allegations therein.
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5. On or about April 14, 1995, the Commission filed a Proposed
Civil Fine Assessment relating to the allegations in the Notice of Violation
(hereinafter the "Proposed Civil Fine Assessment").
6. On or about May 11, 1995, ACES filed a Petition for Reduction
and/or Waiver of Proposed Civil Fine Assessment, denying the appropriateness of
any fine relating to the allegations therein and/or the allegations in the
Notice of Violation and Notice to Show Cause.
7. The Commission and ACES have agreed to execute this Agreement
and perform in accordance with its covenants and conditions in order to resolve
the Commission enforcement action relating to the above-referenced Notice of
Violation, Notice to Show Cause, Proposed Civil Fine Assessment and any and all
related claims, allegations or matters (collectively hereinafter referred to as
the "Commission Enforcement Action"). ACES enters into this Agreement without
admitting or denying the allegations contained in the Commission Enforcement
Action.
TERMS OF SETTLEMENT
THEREFORE, pursuant to and in consideration of the recitals, covenants
and conditions herein, the Commission and ACES hereby agree as follows:
8. ACES agrees upon execution of this Agreement to fully withdraw
from and vacate its current agreement with the Tribe, specifically that
Management Consulting Agreement dated March 29, 1993, relating to ACES' role
and involvement in the Table Mountain
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Casino (hereinafter the "current ACES/Table Mountain Agreement"). Further, on
or before the date of this Agreement, the representatives of ACES serving on
the Joint Management Committee of the Casino shall formally resign from that
Committee.
9. ACES agrees, upon execution of this Agreement, to provide
payment to the Commission of a civil fine in the amount of Five Hundred
Thousand Dollars ($500,000.00), paid in furtherance of this Settlement
Agreement, receipt of which is hereby acknowledged by the Commission.
10. The Commission agrees, upon the execution of this Agreement,
to fully withdraw and dismiss any and all charges, allegations and claims
against ACES relating to the above Commission Enforcement Action, specifically
including those charges, allegations and claims included in or relating to the
Notice of Violation, Notice to Show Cause, and Proposed Civil Fine Assessment,
as well as all claims and allegations against ACES which in any manner arise
out of, involve, or relate, directly or indirectly, to the charges, allegations
and claims made by the Commission therein, whether asserted or not, whether
sounding in equity or in law.
ADDITIONAL COVENANTS
11. ACES acknowledges that the current ACES/Table Mountain
Agreement contains language that could be interpreted to include management
responsibilities as defined under the IGRA and the applicable rules and
regulations of the Commission. ACES further acknowledges that under the
current ACES/Table Mountain Agreement
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it participated in the decisionmaking process at the Table Mountain Casino
through its participation on the former Joint Management Committee. ACES
further acknowledges that its action to terminate the current ACES/Table
Mountain Agreement and to enter into a consulting agreement and a termination
agreement was taken as a result of the Commission Enforcement Action.
12. The Commission acknowledges that the terms of this Agreement
represent the full settlement of the charges, claims, and allegations relating
to the above Commission Enforcement Action, specifically including those
relating to the Notice of Violation, Notice to Show Cause, and Proposed Civil
Fine Assessment, which the Commission, on behalf of the United States, has
determined as appropriate relating to the relationship between ACES and the
Tribe. The Commission further acknowledges that in its statutory capacity as
the federal agency charged with overseeing gaming activities on Indian lands,
no further sanctions beyond those contained herein will be imposed on ACES by
the Commission in connection with its relationship with the Tribe. The
Commission further agrees that it will not intervene in any private right of
action brought by any third party under the IGRA or 25 U.S.C. Section Section
81, 201 or 261-264 against ACES in connection with matters included in the
Commission Enforcement Action, or otherwise participate in any such action
except as it may be required to do so by order of a court of competent
jurisdiction.
13. This Agreement constitutes the entire agreement between the
Commission and ACES and supersedes all prior verbal or written
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agreements and understandings between the parties related to the subject matter
hereof. No warranties, representations, covenants, or agreements shall be
binding upon any party except as set forth herein. Any modification or waiver
of any term of this Agreement, including the modification or waiver of this
term, must be in writing and signed by both parties.
14. The Commission and ACES expressly agree and acknowledge that
time is of the essence in this Agreement. All warranties, representations,
covenants, and agreements made by the parties hereto in this Agreement shall
survive the execution of this Agreement. The recitals herein and above set
forth shall be considered a part of this Agreement. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, their agents,
heirs, personal representatives, successors, and assigns.
15. This Agreement may be executed in any number of counterparts,
each of which, when executed, shall be an original and all of which together
shall constitute one and the same agreement.
16. This Agreement, when executed, shall be submitted to the
Presiding Official for purposes of dismissing the appeal currently pending in
this matter.
17. This Agreement is entered into by the parties for the express
purpose of settling the Commission Enforcement Action. The specific terms,
provisions and conditions of this Settlement Agreement shall be deemed to have
been made for that purpose only and shall not be used for any other purpose,
and shall not be admissible in any other forum, except for the purpose of
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establishing the existence of a settlement of the Commission Enforcement
Action.
18. This Agreement may be executed in multiple counterparts, all
of which together shall be deemed to be a single instrument. A signature
produced by facsimile shall be deemed to be an original signature and shall be
effective and binding for purposes of this Agreement.
AMERICAN CASINO ENTERPRISES, INC.
/s/ Xxx Xxxxxxxxx
_____________________________________
By: Xxx Xxxxxxxxx, Its President
NATIONAL INDIAN GAMING COMMISSION
/s/ Xxxxxx Xxxxxxx
_____________________________________
By: Xxxxxx Xxxxxxx, Its Chairman
APPROVED and ACCEPTED: TABLE MOUNTAIN RANCHERIA
/s/ Xxxx Xxxxxx
_____________________________________
By: Xxxx Xxxxxx, Its Chairman
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