Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of the 14th
day of October, 2005 ("Effective Date") by and between the River Rock
Entertainment Authority ("Authority"), a governmental instrumentality of the Dry
Creek Rancheria Band of Pomo Indians ("Tribe"), on behalf of its Tribal
governmental gaming project, the River Rock Casino ("Casino"), and Xxxxxx Xxxxxx
("Employee"), and succeeds and supersedes that certain Employment Agreement
("Initial Agreement") made and effective as of the 14th of October, 2002 by and
between the Tribe, predecessor in interest to the Authority, and Employee.
The parties hereto expressly intend that this Agreement describe
Employee's relationship as an employee of the Casino and not as a contractor,
including but not limited to not being a contractor as that term 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 Casino hereby employs Employee, and Employee hereby continues his
employment by the Casino, as its Chief Operations Officer (COO). As COO,
Employee shall undertake responsibility for the day-to-day operational
responsibilities for the Casino, assist in the development of the Casino and
other gaming related entities of the Authority as the Board shall direct, and
carry out such other duties as are set forth in Section 2. Employee shall report
to, be accountable to and work under the authority of the Authority's Board of
Directors (the "Board"), the CEO of the Authority, the Casino General Manager,
and such other Tribal entities as the Authority or, if the Authority shall cease
to exist, the Tribe may thereafter designate.
2. REPORTING AND DUTIES. Employee shall report directly to the CEO of
the Authority and General Manager of the Casino with respect to all operations
and expenditures of the Casino 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 Operations
Officer (COO) and such further executive duties as may be specified from time to
time by the Board, the CEO or the General Manager (in that order of precedence),
which shall include:
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(a) Assisting the CEO/General Manager with the overall
responsibility of managing, directing and supervising the
design, development, construction and operation of the Casino;
(b) Enforce the River Rock Casino mission statement;
(c) Provide leadership to all personnel and management of the
Casino;
(d) In collaboration with Human Resources, responsible for the
selection, assignment, re-assignment, structure of any and all
employees, department, duties, responsibilities and
organizational charts, and the implementation for personnel,
wage and benefit policies approved by the Board for the
employees of the Casino;
(e) Assist in the development of short and long term goals and
objectives for the operation;
(f) Preparation of annual operating budgets and required
modifications to such budgets, subject to the approval of the
Board, and implementation of such budgets;
(g) Oversee the marketing plan in conjunction with the Marketing
Manager, which includes all promotions, sponsorships,
advertising, media, and public relations;
(h) Assist in the analysis of Casino to ensure maximum efficiency;
(i) Planning and preparation for food and beverage and other
services of the Casino;
(j) Responsible for the overall ambience, maintenance and
cleanliness of the Casino;
(k) Optimize operational efficiency, increase cost effectiveness
and ensure that quality assurance programs are adopted and
implemented;
(l) Work with Human Resources in the Recruitment and hiring of
managers, supervisors, and employees of the Casino according
to the Tribal TERO plan
(m) Development and implementation of programs for training Tribal
members for supervisory and management positions in accordance
with the preference policies of the Tribe and the Casino;
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(n) Preparation, implementation and direction of Authority and
Casino compliance programs, including assurance that the
Casinos meets the requirements of the Indian Gaming Regulatory
Act, the Tribal-State Gaming Compact between the Tribe and the
State of California (the "Compact"), the laws and ordinances
of the Tribe and other applicable laws as well as agreements
to which the Tribe and/or the Authority is a party;
(o) Preparation, implementation and direction of programs to
assure that the Casino meets all federal, Tribal and Compact
requirements for internal controls, including establishment
and enforcement of policies designed to maintain the integrity
of the Casino and any other Tribal or Authority gaming
operations to which Employee is assigned, for the protection
of the Tribe, the Authority, the Board, the Casino, its
customers and the public in accordance with law and standards
in the industry; and.
(p) Attend all required meetings and trainings.
3. TERM. The term of this Agreement ("Term") shall commence on the
Effective Date and shall end three (3) years after the Effective Date, unless
terminated earlier by the parties as provided herein. The parties acknowledge
that this agreement succeeds and supersedes the Initial Agreement. It is the
intent of the parties hereto that there shall be no gap in the Employee's
employment between the expiration and termination of the Initial Agreement and
the commencement of the Term, and that Employee's employment shall be deemed to
have been continuous from the commencement of the Initial Agreement through the
date of termination of this Agreement..
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
Casino as a competitor or otherwise without the express prior written consent of
the Board in its sole discretion.
5. COMPENSATION.
(a) Employee will be paid a base salary of Two Hundred Fifty Thousand
Dollars ($250,000.00) per annum ("Base Compensation"), subject to
applicable withholding taxes and required deductions.
(b) Payments in discharge of the Base Compensation shall be paid in
1/26 payments thereof every other workweek on the day established for
payroll payments to other employees of the Casino.
(c) Employee's Base Compensation shall be increased annually, effective
on the anniversary of the Effective Date ("Anniversary Date"), by seven
percent (7%) unless otherwise agreed in writing by both parties.
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(d) Employee shall be paid an annual bonus of not less than seven
percent (7%) and not more than twenty-five percent (25%), as determined
by the Board in its sole discretion, of the Base Compensation earned
for the year in question, payable within 45 days after the Anniversary
Date.
(f) Employee will be entitled, on the same basis as other executive
employees of the Casino, to participate in and receive benefits under
the Casino's benefit plans for executives, if any, as such plans may be
modified from time to time, except that Employee will be entitled to
seven (7) days of additional Personal Time Off (PTO) in excess of the
Casino's normal PTO policy.
(g) The Employee shall be reimbursed all reasonable and necessary
business expenses incurred on behalf of his employment during the
performance of his duties under this Agreement, subject to the existing
reimbursement policy established by the Casino. Such reimbursements
shall be supported by adequate record-keeping and other requirements as
may be necessary or appropriate to comply with the Internal Revenue
Code.
(h) Employee will have the right to be reimbursed for any legal fees
incurred as the result of defending himself in any third party lawsuit
arising out of Employee's obligations under this Agreement; provided
that all such defenses shall be managed and controlled by the Authority
and with counsel reasonably approved by Authority. Employee is and will
continue to be covered under the Authority's errors and omissions
insurance as such insurance covers all members of the Board.
6. LICENSING ISSUES. Employee warrants and represents that he is
eligible and suitable for a license and background clearance under the
Tribe's and State's gaming 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 Casino shall pay all costs associated with such licensing. Employee
will maintain such licenses in good standing as a continuing condition
of his employment under this Agreement, and shall notify the Tribal
Gaming Commission of any information that is material to, or a change
from, any information sought or contained in his Tribal gaming license
application or his suitability in general for a gaming license, and
shall do so as soon as possible after such information is known to
Employee..
7. TERMINATION.
(a) Employee may be terminated prior to the end of the Term by the
Authority under the following circumstances:
(i) Upon termination, revocation or disapproval of any license
required by law to be held by Employee to perform as an
employee of a gaming operation of the Tribe, the Authority or
the Casino, or if any event renders it unlawful for the Tribe
or the Authority to continue to operate the Casino or conduct
casino gaming on the reservation; or
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(ii) Employee shall commit an act constituting "Cause", Cause
being defined as (a) an act of intentional dishonesty against
the Tribe, the Authority or the Casino; (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
(iv) The Authority shall for any reason cease to conduct the
Casino; 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; or
(vi) Either party shall give the other party hereto ninety
(90) 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 Authority shall within ten (l0) days of such
termination pay Employee the accrued Base Compensation, bonuses and
benefits to the date Employee is terminated, whereupon Authority 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 Authority has terminated
Employee), the Authority shall pay to the Employee on a pro-rata basis
the Base Compensation 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
Authority 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 for all losses and expenses
incurred by Authority if he is terminated for cause or if Employee
terminates his employment for any reason not authorized herein, with
the exception of termination by written notice agreed to by both
parties. Any such termination of or by Employee will constitute a
waiver by Employee of all claims against the Authority and the Casino
except for the accrued Base Compensation, bonus and benefits to the
date of his termination as provided for in this Section 7, and subject
to any amounts due from Employee.
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8. CONFIDENTIALITY OF PROPRIETARY INFORMATION. Any information acquired
by Employee while employed under this Agreement or in any way connected
with the Casino or any Tribal or Authority gaming operation, related to
employee lists, patron lists, marketing plans, operating procedures and
other information proprietary to the Tribe, the Authority or the Casino
are acknowledged by Employee to be confidential information belonging
to one or more of such entities, and Employee shall not disclose such
information without the express written authorization of the Board
except in the ordinary course of the business of the Casino. Employee
shall, upon termination of this Agreement for any reason whatsoever,
turn over to the Board any and all copies he may have of employee
lists, patron lists, marketing programs, operating procedures and other
information proprietary to the tribe, the Authority or the Casino.
Employee acknowledges that employee lists, patron lists, marketing
programs, operating procedures and other information proprietary to the
Tribe, the Authority or the Casino are confidential and proprietary
information of one or more of such entities and the Tribe, the
Authority or the Casino, or any of them, may exercise any and all
remedies available at law or in equity to enforce this Agreement with
respect to non-disclosure of any such proprietary information.
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 breach of
this Section 8 or to fully repair the harm done by such action.
Accordingly, Authority 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 and that
money damages alone will not provide an adequate remedy..
Notwithstanding the foregoing, Tribe, Authority and Casino or any of
them as may be appropriate 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. Notwithstanding anything
herein to the contrary, Employee acknowledges and agrees that
information regarding the internal operations, actions, plans,
statements (other than public statements), or activities of the Tribe,
the Authority, the Casino, the Board, the Tribal Board of Directors, or
the Tribal Council, or any of their officers, employees, members or
representatives (including personal information), are included within
the meaning of confidential or proprietary information herein and shall
be protected as such.
9. ASSIGNMENT. This Agreement may be assigned by the Authority, on
behalf of itself or the Casino, to any entity formed by the Tribe or
the Authority for the express purpose of operating the Casino 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.
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10. MISCELLANEOUS.
(a) Employee warrants and represents 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.
(d) Any controversy that arises between Employee and the Casino or the
Authority 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. In no
event shall any liability of the Tribe, the Authority or the Casino or
any of them, exceed an amount equal in total to three (3) months of the
Base Compensation for a one year period.
The Parties have executed this Agreement on November 8, 2005, as of the
Effective Date hereof.
RIVER ROCK ENTERTAINMENT AUTHORITY, a government Instrumentality of the DRY
CREEK RANCHERIA BAND OF POMO INDIANS, a federally recognized Indian tribe, on
behalf of its governmental economic development project, the RIVER ROCK CASINO,
By: /s/ Xxxxxx Xxxxxxx
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Name: XXXXXX XXXXXXX,
Its: Chairman of the River Rock Board of Directors
EMPLOYEE
/s/ Xxxxxx Xxxxxx
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XXXXXX XXXXXX
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