Exhibit 10.16
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
the 14th day of October, 2002 by and between the Dry Creek Rancheria Band of
Pomo Indians ("Tribe") and Xxxxxx Xxxxxx the ("Employee").
The parties hereto expressly intend that this Agreement describe
Employee's relationship as an employee of Tribe and not as a contractor,
including but not limited to the meaning of such term as is used in 25 USC ss.
2711 and 25 CFR ss. 502.15. The parties have purposefully structured the terms
and provisions of this Agreement consistent with, and in furtherance of, this
expressed intent.
l. Employment. On and subject to the terms and conditions of this
Agreement, the Tribe hereby employs Employee, and Employee hereby accepts
employment with the Tribe, as the Chief Operating Officer of the Tribe's
temporary gaming facility ("Gaming Facility"), to assume overall responsibility
for the day to day operation of the Gaming Facility. Employee shall report to,
be accountable to and work under the authority of the Tribe's Board of Directors
(the "Board") or such tribal agency or tribal entity as the Tribe may hereafter
designate, which thereafter shall be referred to herein as the "Board".
2. Reporting. Employee shall report directly to the General Manager
with respect to all operations and expenditures of the Gaming Facility and
otherwise to the extent requested by the Board. Without limiting the foregoing,
Employee shall perform such executive duties as are commonly attendant upon the
office of a casino chief operating officer and such further executive duties as
may be specified from time to time by the Board or the General Manager, which
shall include:
(a) Enforce Dry Creek Casino's mission statement.
(b) Provide a secure, crime-free environment and safeguard assets
within the gaming facility premises.
(c) Provide leadership and oversee the operation for all casino
activities.
(d) Be responsible for the selection, assignment, re-assignment,
structure and restructure of any and all employees and department,
duties, responsibilities and organizational charts.
(e) Assist in the development of short and long-term goals and
objectives for the casino.
(f) Assist in the annual forecasting and budgeting process.
(g) Develop/institute marketing promotions in conjunction with the
Marketing Manager, which includes prize give-aways, jackpot funds,
& tournaments, as well as involvement in new product/game
development recommendations.
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(h) Maintain business forecasting, work schedules & payroll for all
employees.
(i) Be responsible for the analysis of gaming operations to ensure
maximum efficiency.
(j) Establish and maintain satisfactory public relations through direct
or delegated contacts.
(k) Be responsible for the overall maintenance and cleanliness of the
casino operation.
(l) Coordinate casino operations activities with departments to ensure
total customer satisfaction and operational efficiency.
(m) Supervise, monitor and control the day-to-day casino operations,
including patron-relations to successfully achieve a cost effective
and profitable gaming operation.
(n) Maintain current information on laws and regulations affecting
gaming operations.
(o) Be responsible for compliance with all federal and tribal laws and
regulatory requirements.
(p) Understand and adhere to all Departmental Policies and Procedures
Manuals.
(q) Implement and enforce Policies and Procedures Manuals, Title 31
CTR, Dealer Handbooks, Rule Books and employee job descriptions for
gaming and non-gaming operations.
(r) Implement and enforce Dry Creek Casino's Internal Control Standards
and ensures all departmental Policies and Procedures are consistent
with the most current Internal Control Standards.
(s) Be responsible for internal security of the casino in conjunction
with the Security and Surveillance Departments.
(t) Develop and implement customer service standards and employee
training and developmental goals.
(u) Assist in the development, design and implementation of on-going
integrated training and development programs for all staff members
in the gaming operation.
(v) Streamline activities to improve and optimize operational
efficiency, increase cost effectiveness and ensure that quality
assurance programs are adopted and implemented.
(w) Be responsible for detecting, and ensuring that corrective action
is taken against, cheating, fraud and disruptions as casino's
policy dictates.
(x) Demonstrates solid experience in personnel functions including
staff recruitment, supervision, evaluation, and discipline.
(y) Be dedicated to the recruitment and training of Tribal Members
consistent with the casino's Community and Indian Preference
guidelines.
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(z) Act as a role model; always present oneself as a credit to River
Rock Casino and encourages others to do the same.
(aa) Attend all required meetings and training.
(bb) Perform additional duties as assigned by the General Manager.
3. Term. The term of this Agreement shall commence on the date of
execution of this Agreement (the "Effective Date") and shall end three (3) years
after the Effective Date, unless terminated earlier by the parties as provided
herein.
4. Full-Time Service. Employee agrees that during the term of this
Agreement unless earlier terminated, he will commit his full time and energies
to the duties imposed hereby and, further, agrees that during the term of this
Agreement he will not (whether as an officer, director, member, employee,
partner, proprietor, investor, security holder, lender, associate, consultant,
adviser or otherwise) directly or indirectly, engage in the business of the
Gaming Facility as a competitor or otherwise.
5. Compensation.
(a) Employee will be paid an annual base salary ("Base Compensation") of Two
Hundred Thousand Dollars ($200,000.00) in the first year, subject to applicable
withholding taxes and required deductions, and subject to annual increases of
not less than the Consumer Price Index for All Urban Consumers for the U.S. City
Average for All Items, 1982-84=100.
(b) Base Compensation shall be paid every other workweek on the day established
by the Board for all employees of the Gaming Facility.
(c) Employee shall be paid an annual discretionary bonus of not less than seven
percent (7%) and not more than twenty-five percent (25%) of his Base
Compensation, payable within 45 days after the end of each Contract Year.
(d) In the event the Tribe adopts a deferred compensation/pension plan, Employee
shall be entitled to such benefits, including the right to have some or all of
any cash compensation placed into such a deferred compensation plan.
(e) Employee will be entitled, on the same basis as other employees of the
Tribe, to participate in and to receive benefits under any of the Tribe's
employee benefit plans, if any, as such plans may be modified from time to time,
except that Employee will be entitled to one week of vacation in excess of the
Tribe's normal vacation policy for employees of the Gaming Facility.
(f) The Tribe will reimburse Employee all reasonable and necessary business
expenses incurred on behalf of his employment during the performance of his
duties under this Agreement, subject to such reasonable policies as may be
established by the Board from time to time and any record-keeping and other
requirements as may be necessary or appropriate to comply with the Internal
Revenue Code. All claims for expense reimbursement shall be supported with
documentation substantiating such expense.
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(g) In order to defray the expense to Employee and his family while Employee
secures living accommodations in the Sonoma County area, the Tribe shall pay,
for a period not to exceed three (3) months, a housing allowance of $4,500 in
the aggregate. Payment shall be made upon execution of this Agreement.
(h) The Tribe will reimburse Employee his reasonable and actual expenses of
moving his family as well as his and his family's household effects from their
current residence in Arizona, but not to exceed the sum of $10,000. All claims
for expense reimbursement shall be supported with proper vouchers and detail.
6. Licensing Issues. Employee represents to Tribe that he is eligible
and suitable for a license and background clearance under the Tribe's and
State's licensing authority. Employee agrees to timely apply for any license(s)
as may be required pursuant to the Compact, the Tribe's gaming ordinances or
otherwise required by law, as may be necessary to enable him to engage in his
employment hereunder. The Tribe shall pay all costs associated with licensing.
Employee will maintain such licenses in good standing as a continuing condition
of his employment by Tribe.
7. Termination.
(a) Employee may be terminated prior to the Termination Date by Tribe
only under the following circumstances:
(i) Upon termination, revocation or disapproval of any license
required by law to be held by Employee to perform as Chief
Operating Officer of the Gaming Facility or if any event
renders it unlawful for the Tribe to continue to conduct
casino gaming on the reservation; or
(ii) Employee shall commit an act constituting "Cause", Cause
being defined as (a) an act of intentional dishonesty against
the Tribe or the Gaming Facility; (b) conviction of any
criminal charge involving moral turpitude; (c) the deliberate
or intentional refusal by Employee (except by reason of
disability) to perform his duties hereunder; (d) gross
negligence in the performance of his duties hereunder; or, (e)
failure to perform his duties in a manner consistent with his
professional obligations after prior sufficient verbal and
written warnings; or
(iii) Employee shall die; or
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(iv) The Tribe shall for any reason cease to conduct its
gaming operations; or
(v) Employee shall become unable to perform the duties and
responsibilities set forth in this Agreement by reason of
long-term physical or mental disability, defined as a period
of disability that exceeds six (6) months;
(vi) Either party shall give the other party hereto sixty (60)
days' written notice of Employee's resignation or termination.
(b) If Employee's employment should be terminated under paragraphs 7
(a)(i), (a)(ii) or (a)(vi) above (provided that this subparagraph (b)
shall only apply to paragraph 7 (a)(vi) to the extent that Employee has
resigned), then Tribe shall within ten (l0) days of such termination
pay Employee the Base Compensation to the date Employee is terminated,
whereupon Tribe shall have no further liability or obligation to
Employee under this Agreement.
(c) If Employee is terminated under paragraphs 7 (a)(iii), (a)(iv),
(a)(v) or (a)(vi) (provided that this subparagraph (c) shall only apply
to paragraph 7 (a)(vi) to the extent that Tribe has terminated
Employee), the Tribe shall pay to Employee his salary for a period of
three (3) months from the date of termination and he shall be eligible
for all employee benefits during that three-month period, pro-rated to
that period. Employee shall be paid all amounts due him at the time of
termination when they would otherwise be paid, including the pro rata
share of the bonus for the year in which the termination occurred.
(d) Upon the payment of all or any part of the compensation provided
for in this paragraph 7, or its mitigation under this paragraph, the
Tribe will have no further liability or obligation to Employee under
this Agreement or arising from the employment relationship except that
obligation provided for in this paragraph 7.
(e) Employee will be liable in damages to the Tribe for all losses and
expenses incurred by Tribe if he terminates his employment for any
reason not authorized herein, with the exception of termination by
written notice agreed to by both parties. Any such unauthorized
termination by Employee will constitute a waiver by Employee of all
claims against the Tribe and the Gaming Facility except for Base
Compensation to the date of his termination.
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8. Confidentiality of Proprietary Information. Any information acquired
by Employee while in the employ of the Tribe related to employee lists, patron
lists, marketing plans, operating procedures and other information proprietary
to the Tribe or the Gaming Facility are acknowledged by Employee to be
confidential information belonging to the Tribe, and Employee shall not disclose
such information without the express written authorization of the Tribe except
in the ordinary course of the business of the Gaming Facility. Employee shall,
upon termination of this Agreement for any reason whatsoever, turn over to the
Tribe any and all copies he may have of employee lists, patron lists, marketing
programs, operating procedures and other information proprietary to the Tribe or
the Gaming Facility. Employee acknowledges that employee lists, patron lists,
marketing programs, operating procedures and other information proprietary to
the Tribe or the Gaming Facility are confidential and proprietary information
belonging to the Tribe and the Tribe may exercise any and all remedies available
to it at law or in equity to enforce this Agreement with respect to
non-disclosure of any such proprietary information to which Employee has or will
become privy while an employee of Tribe. Particularly, the parties agree that,
because of the nature of the subject matter of this paragraph 8, in event of a
threat or danger of disclosure of such information, it could be extremely
difficult to determine the actual damages suffered or to be suffered by Tribe in
the event of a breach of this Agreement by Employee. Accordingly, Tribe shall be
entitled to injunctive relief (both temporary and permanent), it being
acknowledged and agreed that any such actual or threatened breach will cause
irreparable injury to Tribe and that money damages alone will not provide an
adequate remedy to Tribe. Notwithstanding the foregoing, Tribe also shall be
entitled to money damages for any loss suffered or to be suffered as a
consequence of Employee's breach of this Agreement. The parties acknowledge that
this provision shall survive the termination of this Agreement.
9. Assignment. This Agreement may be assigned by the Tribe to any
entity formed by the Tribe for the express purpose of operating the Gaming
Facility and any related economic development activities. This Agreement
contemplates the personal services of Employee, and neither this Agreement nor
any of the rights herein granted to Employee or the duties assumed by him
hereunder may be assigned by him.
10. Miscellaneous.
(a) Employee represents to Tribe that there are no restrictions to
which he is subject or agreements to which he is a party that would be
violated by his execution of this Agreement and his employment
hereunder.
(b) This Agreement and all questions relating to its validity,
interpretation, performance and enforcement shall be governed by and
construed in accordance with the laws of the Dry Creek Rancheria and
the State of California.
(c) No amendment to this Agreement or any attempted waiver of a
provision of this Agreement shall be effective unless in writing and
signed by the parties to this Agreement.
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(d) Any controversy that arises between Employee and the Tribe
regarding the rights, duties or liabilities hereunder of either of
them, shall be settled by binding arbitration under the Uniform
Arbitration Act as adopted by the State of California or other forums
for Tribal dispute resolution such as Peace Court or Elder's Counsel,
to the extent only of the enforcement of the arbitration and any
arbitration award as provided for herein. In the case of binding
arbitration, it shall be conducted, upon the request of either party
before three (3) arbitrators (unless the parties agree to one (l)
arbitrator) designated by the American Arbitration Association and in
accordance with the rules of such association, except as such rules may
contemplate state court jurisdiction. The arbitrators designated to act
under this Agreement shall make their award in strict conformity with
such rules and shall have no power to depart from or change any of the
provisions thereof except as provided herein. The Tribe on behalf of
itself and the Gaming Facility waives its sovereign immunity from suit
by Employee and hereby consents to be sued in any authorized Tribal
forum, or the Federal District Court for the Northern District of
California and all appellate courts related thereto, or in the event
such courts lack subject matter jurisdiction in the courts of the State
of California and all appellate courts related thereto, for the sole
and limited purpose of enforcing Tribe's obligations to Employee under
this Agreement should an action be commenced to compel arbitration,
provide injunctive relief prior to arbitration or enforce an
arbitration award. In no event shall Tribe's liability hereunder exceed
three (3) months Base Compensation.
EFFECTIVE as of the date first written above.
DRY CREEK RANCHERIA BAND OF POMO INDIANS
By: /s/ Xxxxxxxxx Xxxxx XxXxxxx
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Name: Xxxxxxxxx Xxxxx XxXxxxx
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Its: Tribal Chairperson
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EMPLOYEE
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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