Execution Copy
DEVELOPMENT SERVICES AGREEMENT
THIS DEVELOPMENT SERVICES AGREEMENT (as further supplemented or amended
from time to time, the "Development Agreement") is made this 7th day of
February, 1998 between the Mohegan Tribal Gaming Authority (as further defined
below, the "Authority"), an instrumentality of The Mohegan Tribe of Indians of
Connecticut, a federally recognized Indian tribe (as further defined below,
the "Tribe"), and Trading Cove Associates, a Connecticut partnership (the
"Developer").
RECITALS
A. The Tribe is the beneficial owner of land located in the State of
Connecticut which is owned by the United States of America in trust for the
benefit of the Tribe pursuant to the Tribe's recognized powers of
self-government, and the statutes and ordinances of the Tribe (the "Property").
B. On behalf of the Tribe, the Authority has constructed a casino known
as Mohegan Sun on the Property to improve the economic conditions of the Tribe's
members and is now seeking development and expertise from Developer for the
following "Project": the construction of a new casino consisting of
approximately 100,000 square feet of gaming and related commercial space within
such casino, a luxury hotel containing approximately 1,500 guest rooms and
customary amenities, a convention/events center with indoor seating for
approximately 10,000 patrons and 100,000 square feet of convention space and
related food and beverage and parking facilities and other related
infrastructure, and any modifications of the foregoing elements agreed to by
the parties.
C. The Authority, on its own behalf and on behalf of the Tribe, and
Developer desire to replace, supersede and terminate all existing and prior
agreements, arrangements and understandings with respect to the design,
construction, equipping and opening of any gaming or non gaming facilities
between the Tribe and/or the Authority and Developer, including, without
limitation, (i) that certain Amended and Restated Gaming Facility Development
and Construction Agreement dated September 1, 1995 and approved by the Bureau
of Indian Affairs on September 29, 1995 (the "Gaming Development Agreement"),
which grants to Developer the exclusive right to develop certain facilities as
described therein, and (ii) that certain Hotel/Resort Facility Development and
Construction Agreement dated July 12, 1994 (the "Hotel Development Agreement"),
which grants Developer the exclusive right to develop certain hotel/resort
facilities described therein.
D. The Authority desires to grant Developer the exclusive right and
obligation to provide development services in respect of the design,
construction, equipping and opening of the Project upon the terms and conditions
set forth herein.
NOW THEREFORE, in consideration of the mutual covenants, conditions and
promises herein contained, the receipt and sufficiency of which hereby are
acknowledged, the Authority and Developer agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
Capitalized terms used in this Development Agreement shall have the
meanings set forth below:
"Affiliate" means, with respect to the Person in question, any Person
controlling, controlled by or under common control with, such Person. For the
purposes hereof, "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
the Person in question.
"Architect" means, as applicable from time to time, the design architect
(if retained) and/or the architect of record for the Project employed pursuant
to Section 4.2 below.
"Authority" means the Mohegan Tribal Gaming Authority, acting by the
Management Board, or any other instrumentality of the Tribe with the authority
to exercise the regulatory and proprietary authority of the Tribe over the
gaming and/or non-gaming facilities located on the Property in accordance with
the Mohegan Tribal Constitution, the Tribe's Gaming Ordinance, the Tribe's
ordinance establishing the Mohegan Tribal Gaming Authority, the Compact, the
IGRA or other applicable law, and any successor and assignee thereto.
"Authority Representative" has the meaning set forth in Article 3 below.
"Bid Packages" has the meaning set forth in Section 5.1 below.
"Bureau of Indian Affairs" is the Bureau of Indian Affairs of the
Department of the Interior of the United States of America.
"Certified Entities" has the meaning set forth in Section 8.1 below.
"Compact" means the tribal-state Compact entered into between the Tribe
and the State of Connecticut pursuant to the IGRA, as the same may be amended
from time to time, or such other Compact as may be substituted therefor.
"Completion Date" means the date upon which the Authority receives, with
respect to the Project: (i) a certificate from the Architect, as required
pursuant to the terms of the Architect's agreement, certifying that the
Project has been constructed in accordance with the Plans and Specifications
therefor and all applicable building, life/safety, environmental and other
laws and regulations applicable to the design and construction of the Project;
(ii) a certificate from Developer stating that it has completed all of its
obligations hereunder; (iii) certificates of such professional designers,
inspectors or consultants or opinions of counsel as the Authority reasonably
may determine to be appropriate verifying completion of the Project in
compliance with all Legal Requirements; and (iv) the Project is fully stocked,
staffed (including, without limitation, compliance with Section 8.8 below) and
ready to open to the public.
"Contract Documents" has the meaning set forth in Section 5.2 below.
"Contractors" has the meaning set forth in Section 5.1 below.
"Construction Financing" means the financing to be obtained by, and/or
committed to, the Authority sufficient, as determined by the Authority, for
the purposes of the design, construction, equipping and staffing of the Project.
"Construction Manager" means the professional employed pursuant to
Section 4.3 below.
"Cost Estimator" has the meaning set forth in Section 2.3 below.
"Design Development Documents" has the meaning set forth in Section 4.5
below.
"Developer" has the meaning set forth in the introductory paragraph hereof.
"Development Agreement" has the meaning set forth in the introductory
paragraph hereof.
"Development Fee" has the meaning set forth in Article 9 below.
"Director of Regulation" means the director of gaming operations appointed
by the Authority pursuant to the Tribe's Gaming Ordinance.
"Effective Date" means, the first (1st) day of the first (1st) calendar
month following the later of (a) the date the Authority receives all Required
Approvals with respect to the Development Agreement, or (b) closing of the
Proposed Financing.
"Executive Project Committee" means the Authority Representative, the
Project Executive and senior executives of each of the Architect and the
Construction Manager.
"Final Budget" has the meaning set forth in Section 5.3 below.
"Force Majeure Causes" means causes beyond the reasonable control of a
party to this Development Agreement, including casualties, war, insurrection,
strikes, lockouts and governmental actions (but excluding causes which can be
controlled by the expenditure of money in accordance with good business
practices).
"Gaming Development Agreement" has the meaning set forth in Recital C
hereof.
"Hotel Development Agreement" has the meaning set forth in Recital C
hereof.
"IGRA" means the Indian Gaming Regulatory Act of 1988, 25 U.S.C. §
2701 et seq., as amended from time to time.
"Key Personnel" means collectively the general manager of operations for
each major element of the Project, and the director of sales for each major
element of the Project, (or the equivalent of either of the foregoing
positions).
"Legal Requirements" means singularly and collectively all applicable
laws, including, without limitation, the Tribe's Gaming Ordinance, the Tribal
Employment Rights Ordinance, all other laws or regulations of the Tribe, the
IGRA, the Compact and applicable federal and Connecticut statutes, laws and
regulations.
"MTC Court" means the Gaming Disputes Court of the Tribe.
"NIGC" means the commission established pursuant to 25 U.S.C. Section 2704.
"Person" means any individual, sole proprietorship, corporation, general
partnership, limited partnership, limited liability company or partnership,
joint venture, association, joint stock company, unincorporated association,
instrumentality or other form of entity.
"Plans and Specifications" means the detailed plans and specifications
for the construction of the Project prepared pursuant to Section 4.6 below.
"Preliminary Budget" has the meaning set forth in Section 2.3 below, as
such may be modified from time to time in the Authority's sole and absolute
discretion in accordance with this Development Agreement.
"Project" has the meaning set forth in Recital B hereof, as modified in
accordance with the terms of this Development Agreement.
"Project Executive" has the meaning set forth in Section 2.1 below.
"Project Program" has the meaning set forth in Section 2.2 below, as
modified in accordance with the terms of this Development Agreement.
"Project Schedule" has the meaning set forth in Section 2.3 below.
"Property" has the meaning set forth in Recital A hereof.
"Proposed Final Budget" has the meaning set forth in Section 5.3 below.
"Proposed Financing" means the anticipated refinancing of certain of the
Authority's existing indebtedness, together with the Construction Financing.
"Proposed Project Program" has the meaning set forth in Section 2.2 below.
"Required Approvals" means the approval by the Bureau of Indian Affairs,
and/or the NIGC, to the extent those agencies determine such approval may be
required by law.
"Retail Consultant" has the meaning set forth in Section 2.4 below.
"Retail Facilities" means, if the Authority elects to pursue construction
of such facilities pursuant to Section 2.4 below, additional facilities
consisting of approximately 200,000 square feet of retail and restaurant
facilities and related parking facilities and other related infrastructure.
"Retail Facilities Architect" means the meaning set forth in Section 4.2
below.
"Retail Facilities Costs" has the meaning set forth in Section 2.4 below.
"Schematic Design Documents" has the meaning set forth in Section 4.5
below.
"Staffing Plan" has the meaning set forth in Section 8.8 below.
"Sun" means Sun International Hotels Limited.
"Term" has the meaning set forth in Article 10 below.
"Total Project Costs" means all costs of programming, budgeting,
designing, constructing, equipping and staffing the Project, including costs
related to professional services, but excluding all financing fees and expenses,
and interest payments on the Construction Financing prior to the opening of the
Project, which costs shall not exceed Four Hundred Fifty Million Dollars
($450,000,000), without the prior written approval of the Authority, which may
be withheld in its sole and absolute discretion.
"Tribal Employment Rights Ordinance" means the Tribal Gaming Authority
Employment Rights Ordinance enacted by the Authority on or about September 25,
1995 and any replacements thereof or amendments thereto adopted from time to
time, and all related or implementing ordinances and policies of the Authority
to give preference in recruiting and hiring to employees and Certified Entities.
"Tribe" means the Mohegan Tribe of Indians of Connecticut, a federally
recognized Indian tribe and its permitted successors and assigns.
"Tribe's Gaming Ordinance" means the Mohegan Tribal Gaming Ordinance No.
94-1, and any replacements or amendments thereto adopted from time to time,
and all related or implementing ordinances, which are enacted by the Tribe to
authorize and regulate gaming on the Tribe's reservation pursuant to IGRA.
ARTICLE 2
DEVELOPER
2.1 Retention of Developer. The Authority hereby retains Developer,
as its exclusive developer for the Project, to perform all required development
services relating to the programming (including concept development), design,
construction, equipping and staffing (pursuant to Section 8.8 below) of the
Project, upon, and subject to, the terms and conditions, and in consideration of
the payments, hereinafter set forth. Developer shall provide promptly and
diligently the services as hereinafter set forth as necessary to facilitate
the development of the Project and shall furnish, at its cost, a sufficient
number of trained personnel, as mutually agreed upon by Developer and the
Authority, with experience on projects of a scope and magnitude similar to the
Project, at all times as necessary to accomplish the same. The organizational
and reporting chart which describes the broad relationships and areas of
responsibilities to be used in the development of the Project is attached
hereto as Exhibit A. Within thirty (30) days of the full execution of this
Development Agreement, Developer, at its own cost and expense, shall (a)
appoint a senior executive with sufficient development, construction and project
management experience in the gaming and resort industry to be in charge of
coordinating the development, design and construction of the Project (the
"Project Executive"), and (b) provide to the Authority an initial staff outline
for the Project. The appointment of the Project Executive shall be subject to
the prior written approval of the Authority, in its sole and absolute
discretion. As soon as required (but in no event later than completion of the
Schematic Design Drawings), the Project Executive shall maintain a full-time
office and staff at the Property. Any substitution by Developer of the Project
Executive shall be subject to the Authority's prior written approval, in its
sole and absolute discretion.
2.2 Project Program. At a time which is mutually agreeable to the
Authority and Developer (but not later than thirty (30) days following full
execution of this Development Agreement) , Developer and the Authority shall
meet to review and discuss an initial draft of a Project brief, budget program
and schedule which outlines the key tasks and objectives for the Project.
Within thirty (30) days after such initial meeting, the Authority and
Developer shall meet a second time to review and update such information.
Within ninety (90) days following the full execution of this Development
Agreement (provided that the Authority and Developer may agree to extend such
period for an additional thirty (30) days), Developer shall provide to the
Authority a detailed program outline of the requirements for the Project, that
includes a conceptual program, design and construction objectives and
criteria, preliminary time schedules, amenities, preliminary space
requirements, infrastructure and support, preliminary cost estimates (based on
estimates prepared by the Cost Estimator) for each major element of the
Project and Developer's initial recommendations regarding the appropriateness
of proceeding with the design, construction and completion of the Project in a
series of independent stages (taking into account the desire of the Authority
to minimize disruptions to the operation of the existing facilities on the
Property) (the "Proposed Project Program"). The Project's theme shall reflect
the culture, history and art of the Tribe. The Authority shall either
approve, (in its sole and absolute discretion) or return with comments
consistent with the elements described in Recital B hereof and reasonable
construction practices and consideration of the limit on Total Project Costs,
on the Proposed Project Program within fifteen (15) days of delivery by
Developer. Developer shall modify the Proposed Project Program as required by
the Authority's comments and shall resubmit it for final approval within
fifteen (15) days (or such additional time as the extent of the comments
reasonably require). The final, approved proposal is hereinafter referred to
as the "Project Program".
2.3 Initial Cost Estimate and Submission of Project Schedule. (a)
Within thirty (30) days following full execution of this Development Agreement,
subject to compliance with the requirement set forth in Section 8.1 below,
during the period that the Project Program is being developed, Developer shall
recommend the selection and terms of employment by the Authority of a
professional cost estimator for the Project or portions thereof (the "Cost
Estimator"), which recommendation shall be subject to the approval of the
Authority, in its sole and absolute discretion. The Cost Estimator shall be
retained on terms recommended by Developer and approved by the Authority.
Within thirty (30) days after approval of the Project Program, the Cost
Estimator, under the direction of Developer, shall prepare more detailed cost
estimates, based upon the preliminary estimates contained in the Project
Program, for each major element of the Project and including pre-opening costs
relating to Section 8.8 (the "Preliminary Budget"), which shall be subject to
the approval of the Authority (which may be withheld in its sole and absolute
discretion). If such Preliminary Budget exceeds the ceiling on Total Project
Costs, Developer and the Authority shall work together either to revise the
Project Program as agreed, or to revise the ceiling on Total Project Costs, as
determined in the Authority's sole and absolute discretion.
(b) Within thirty (30) days following the approval by the Authority of
the Project Program, based upon the Project Program, Developer shall submit to
the Authority, for its approval, a more detailed schedule, which schedule shall
include, without limitation, target dates for the selection of all professionals
and consultants, completion of design and construction plans as described in
Article 4 below and initial conceptual budgets for the Project (the "Project
Schedule"). The Authority and Developer shall mutually agree upon target
commencement and completion dates for the design, construction, equipping and
opening of the Project (including stages thereof, if applicable).
2.4 Retail Facilities. Within thirty (30) days following full
execution of this Development Agreement, the Authority may elect, by written
notice to Developer, to pursue the development of the Retail Facilities with
Developer and in consultation with a retail development firm selected by the
Authority (the "Retail Consultant"). If the Authority so elects to pursue the
development of the Retail Facilities, the definition of "Project" in this
Development Agreement shall be deemed to include the Retail Facilities and all
terms and conditions set forth in this Development Agreement shall apply to
the Retail Facilities, except as expressly set forth herein, and except that
the ceiling for Total Project Costs shall be revised to incorporate the total
costs of designing, constructing, equipping and opening the Retail Facilities
(the "Retail Facilities Costs"). Developer and the Authority shall work with
the Retail Consultant to develop a program and a schedule for the Retail
Facilities in the manner described in Sections 2.2 and 2.3 above for the
Project and to determine the Retail Facilities Costs. Developer shall integrate
the construction of the Retail Facilities with the balance of the Project in
a manner agreed upon by the Authority, Developer and the Retail Consultant.
ARTICLE 3
APPOINTMENT OF AUTHORITY REPRESENTATIVE
The Authority, at its own expense, shall appoint a representative (the
"Authority Representative"), that is qualified to act as the principal liaison
with Developer in connection with the Project. The Authority Representative
may, at the Authority's option, have an office within Developer's on-site
office, shall participate in progress meetings pursuant to Section 8.4,
inspect work pursuant to Section 5.4 and coordinate all matters that require
the approval of the Authority. Unless otherwise indicated by the Authority,
any provisions in this Development Agreement requiring notice to the Authority
may be complied with by the giving of notice to the Authority Representative.
Unless otherwise provided in this Development Agreement or pursuant to the
written authorization of the Authority, however, the Authority Representative
shall have no right or authority to make decisions or take actions which bind
or require the consent of the Authority.
ARTICLE 4
DESIGN OF THE PROJECT
4.1 General Supervision. Developer shall represent the Authority and
act as the Authority's liaison with respect to the selection, direction and
management of the Architect selected pursuant to Section 4.2 and the
Construction Manager selected pursuant to Section 4.3, and any other
professionals engaged, in accordance with the terms of the Project Program, to
perform services in connection with the design and construction of any portion
of the Project. Subject to the limitations described herein, the Authority
shall delegate to Developer its responsibilities under any construction
management, architectural and other agreements with development professionals
in order to allow Developer to supervise, direct and administer the duties,
activities and functions of the Architect and the Construction Manager. Both
the Architect and Construction Manager shall review and advise the Authority
and Developer with respect to the Project Program.
4.2 Employment of the Architect. Within thirty (30) days of the
approval of the Project Program by the Authority, Developer shall prequalify
and interview architects with substantial and satisfactory experience in the
design and construction of hotel, resort, convention and gaming facilities.
The Architect shall be duly licensed to practice architecture in the State of
Connecticut, as required by applicable law, and (with respect to the architect
of record for the Project) shall be qualified to provide and/or secure and
supervise all necessary engineering and related consulting services in
connection with the design of the Project. The Authority shall advise
Developer in writing if it requires a design competition. The Authority shall
review and approve, in advance, the prequalification and design competition
(if required) criteria (which shall include, without limitation, a standard
form agreement prepared by Developer and all necessary specifications
developed by Developer). Developer shall advise the Authority Representative
concerning the status of, and the Authority may, at its option, participate
in, the prequalification, interview and design competition processes. Based
on the results of the design competition, subject to compliance with the
requirement set forth in Section 8.1 that preference be given to Certified
Entities, Developer shall recommend the selection and employment by the
Authority of the Architect to provide design services for the Project, which
recommendation shall be subject to the approval of the Authority, in its sole
and absolute discretion. Subject to the Authority's final approval and right
to participate in negotiations, Developer shall be responsible for preparing
and negotiating a contract with the Architect, which contract shall contain
such provisions for the protection of the Authority that are deemed
appropriate and are requested by the Authority. In the event the Authority
pursues the development of the Retail Facilities pursuant to Section 2.4
hereof, upon the mutual agreement of the Authority, Developer and the Retail
Consultant, an architect other than the Architect may be selected, as
described above in this Section 4.2, to perform the Retail Facilities design
services (the "Retail Facilities Architect"), in which event all provisions
regarding the Architect's role under this Development Agreement with respect
to the Retail Facilities shall apply solely to the Retail Facilities Architect.
4.3 Employment of Construction Manager. Within thirty (30) days of
the approval of the Project Schedule by the Authority, subject to compliance
with the requirement set forth in Section 8.1 that preference be given to
Certified Entities, Developer shall prequalify, interview and recommend the
selection and employment by the Authority of a construction manager with
sufficient experience in the construction of hotel, resort, convention and
gaming facilities, as necessary to complete the Project in the region where it
is located. The Construction Manager shall be properly licensed in the State
of Connecticut, as required by applicable law, and shall maintain a full-time
staff dedicated to a continuous presence at the Project. The Authority shall
review and approve, in advance, the prequalification and selection criteria
(which shall include, without limitation, a standard form agreement (consistent
with industry standards for owner/construction manager agreements) prepared by
Developer and all necessary specifications developed by Developer). Subject to
the Authority's final approval and right to participate in negotiations,
Developer shall be responsible for preparing and negotiating a contract with
the Construction Manager, which contract shall contain such provisions for
the protection of the Authority that are deemed appropriate and are requested
by the Authority.
4.4 Design, Construction and Furnishings Budgets. From time to time,
Developer, with the advice and assistance of the Architect and the Construction
Manager, shall update in writing the Preliminary Budget, consistent, in all
respects, with the Project Program and the Project Schedule, for the management,
supervision, design, construction, equipping and opening of the Project, which
update shall be subject to the approval of the Authority (which may be
withheld in its sole and absolute discretion). If such updated Preliminary
Budget exceeds the ceiling on Total Project Costs, Developer and the Authority
shall work together either to revise the Project Program and/or the Project
Schedule as agreed, or to revise the ceiling on Total Project Costs, as
determined in the Authority's sole and absolute discretion.
4.5 Design Development. Based upon, and consistent with, the
Preliminary Budget, Project Program and Project Schedule, the Architect, under
the direction of Developer, and in consultation with the Construction Manager
and/or the Cost Estimator, shall prepare "Schematic Design Documents"
consistent with industry standards which shall include, without limitation,
drawings and other documents illustrating the scale and relationship of the
proposed Project and the major divisions of each major element of the Project,
as well as a preliminary estimate of construction costs based upon the
proposed area, size and scope of each major element of the Project. The
Schematic Design Documents shall be submitted to the Authority for its review
and comment (consistent with the Project Program, the Project Schedule and the
Preliminary Budget) or approval, which approval shall not be withheld
unreasonably so long as such documents are consistent with the Project Program,
Project Schedule and Preliminary Budget.
Upon final approval of the Schematic Design Drawings for the Project by
the Authority (but not before receipt of the Required Approvals and closing of
the Construction Financing), the Architect, under the direction of Developer
and in consultation with the Construction Manager, shall prepare "Design
Development Documents" for the Project consistent with industry standards
which shall include, without limitation, drawings and other documents to fix
and describe the size and character of each major element of the Project as to
architectural, structural, mechanical and electrical systems, materials and
such other elements as may be appropriate. Further, the Architect,
Construction Manager and/or the Cost Estimator shall advise Developer and,
subject to the requirements of Section 4.4 above, update the Preliminary
Budget to the extent necessary. Following completion of any revisions which
Developer deems necessary to the Design Development Documents, Developer shall
submit copies thereof to the Authority, together with any necessary updates to
the Preliminary Budget (subject to the requirement of Section 4.4 above), for
the Authority's review and comment (consistent with the Project Program, the
Project Schedule, the Project Budget and the Schematic Design Documents) or
approval, which approval shall not be withheld unreasonably so long as the
Design Development Documents are consistent with the Project Program, Project
Schedule and approved Schematic Design Documents.
4.6 Construction Documents. Based upon, and consistent with, the
Project Schedule, approved Design Development Documents and Preliminary
Budget, the Architect shall prepare for Developer's approval, full construction
documents (the "Plans and Specifications") prepared so as to conform to all
Legal Requirements and to allow bids to be obtained on the work described
therein. The Plans and Specifications shall be consistent with industry
standards and shall include, without limitation, all architectural, mechanical,
electrical and plumbing drawings and specifications necessary to complete the
construction of the Project. In addition, subject to the requirements of
Section 4.4 above, the Architect and Construction Manager shall advise
Developer and update the Preliminary Budget to the extent necessary based upon
the Plans and Specifications. Following completion of any revisions which
Developer deems necessary to the Plans and Specifications, Developer shall
submit the Plans and Specifications, together with any necessary updates to
the Preliminary Budget, to the Authority for its review and approval, which
approval shall not be withheld unreasonably so long as the Plans and
Specifications are consistent with the Project Program, Project Schedule and
approved Design Development Documents.
4.7 Compliance with Construction Standards, Environmental Laws and
Regulations. The Project shall be designed and constructed so as to protect
the environment and the public heath and safety, as agreed upon by Developer
and the Authority. The design, construction and maintenance of the Project
shall, except to the extent waived in writing by the Authority, meet or exceed
all established standards pertaining to the Tribe or all building codes, fire
codes and safety and traffic requirements (but excluding planning, zoning and
land use laws, ordinances, regulations and requirements) which would be imposed
on the Project by existing local, state or federal laws or regulations which
would be applicable if the Project were located outside of the jurisdictional
boundaries of the Tribe, even though those requirements may not apply within
the Tribe's jurisdictional boundaries. Nothing in this Development Agreement
shall grant to the State of Connecticut or any political subdivision thereof
any jurisdiction (including but not limited to jurisdiction regarding zoning
or land use) over the Property or the design, construction, equipping and
opening of the Project.
4.8 Suspension of Obligations. On the earlier of (a) the date on which
the NIGC or the Bureau of Indian Affairs gives notice to Developer, the Tribe
or the Authority that the Required Approvals with respect to the Relinquishment
Agreement dated February 7, 1998 between the Authority and Trading Cove
Associates (the "Relinquishment Agreement") or this Development Agreement in
their current forms (including any changes mutually acceptable to the parties)
will not be granted or (b) the earlier of (i) six (6) months after the date of
execution of this Development Agreement or (ii) the date that the Schematic
Design Drawings are approved, if no response has been received from the NIGC
or the Bureau of Indian Affairs with respect to the Required Approvals of the
Relinquishment Agreement or this Development Agreement in their current forms
(including any changes mutually acceptable to the parties), Developer shall
not be authorized or required to provide any further services under this
Development Agreement, and all work relating to the development of the Project
shall cease, and shall not recommence until forms of the Relinquishment
Agreement and this Development Agreement agreeable to the Authority and
Developer have received the Required Approvals.
ARTICLE 5
CONSTRUCTION OF THE PROJECT
5.1 Employment of Contractors. Within thirty (30) days of the
Authority's approval of the Design Development Documents, the Construction
Manager, under the direction of Developer, shall begin to prequalify (in
accordance with criteria approved by the Authority) and interview contractors
with significant experience in the construction of comparable hotel, resort,
convention and gaming facilities in the region where the Property is located
based upon the need for such contractors as provided in the Project Schedule.
Thereafter, as may be required by the Project Schedule, the Construction
Manager, under the direction of Developer, shall prepare detailed bid packages
based upon the Plans and Specifications, which shall include, without
limitation, the Construction Manager's standard form agreement prepared under
the direction of Developer and approved by the Authority, and all necessary
performance specifications developed by or for Developer, with the assistance
of the Construction Manager (the "Bid Packages"). The Bid Packages shall be
subject to the Authority's prior written approval, in its sole and absolute
discretion. The Bid Packages shall be sent to at least three (3) pre-approved
contractors. Any bids not returned within the bidding period set forth in the
Bid Packages shall be disregarded unless the Authority elects to extend the
bidding period. Developer shall advise the Authority Representative
concerning the status of, and the Authority may, at its option, participate
in, the bidding processes. Based on the results of the bidding process and
subject to compliance with the requirement set forth in Section 8.1 that
preference be given to Certified Entities, Developer shall recommend the
selection and employment by the Authority of the contractors to construct and
equip the Project, which recommendation shall be subject to the approval of
the Authority, in its sole and absolute discretion. The approved contractors
shall be referred to herein as the "Contractors." Each of the Contractors
shall be properly licensed as required by applicable law and, if required by
the Authority, shall furnish a payment and performance bond or other guaranty
of performance reasonably satisfactory to the Authority, to cover the
construction and equipping of the Project. Neither Developer nor any Affiliate
of Developer shall be eligible to serve or be employed as a Contractor.
5.2 Contract Documents. Subject to the Authority's final approval
and its right to participate in negotiations, Construction Manager, under the
direction of Developer, shall be responsible for preparing and negotiating a
contract and other contract documents with the Contractors. The contract and
other contract documents with the Contractors (the "Contract Documents") shall
require the Contractors to construct and equip the Project in accordance with
the directives of the Construction Manager, the approved Plans and
Specifications and their approved bids and to be responsible for providing all
surety, administrative and other services, materials, equipment and labor
defined in the Contract Documents. The Contract Documents shall contain such
provisions for the protection of the Authority that are reasonably deemed
appropriate and are requested by the Authority and provide for insurance,
appropriate lien waivers and for construction schedules which include progress
payments and may include liquidated damages for delayed performance.
5.3 Final Budget. Within thirty (30) days following approval of the
Design Development Documents and commencement of preparation of the Plans and
Specifications, Developer, in consultation with the Architect, Construction
Manager and/or Cost Estimator shall prepare a proposed final budget for the
Project, which shall contain all costs related to the design, construction and
equipping of the Project, plus a contingency of ten percent (10%) of the hard
construction costs (the "Proposed Final Budget"). If the Proposed Final
Budget exceeds Total Project Costs, then Developer and the Authority shall
work together to either revise the Design Development Documents and/or the
Plans and Specifications as agreed, or revise the ceiling on Total Project
Costs, as determined in the Authority's sole and absolute discretion. Within
fifteen (15) days of submission thereof, the Authority shall either approve or
comment upon the Proposed Final Budget, which approval may be withheld in the
Authority's sole and absolute discretion. Developer shall modify the Proposed
Final Budget as required to conform to the Authority's comments and shall
resubmit it for final approval within fifteen (15) days (or such additional
time as the extent of the comments reasonably require) following receipt of
the Authority's comments. The approved budget shall be the "Final Budget."
Subject to the approval requirements set forth below, Developer may, after at
least fifteen (15) days prior written notice to the Authority (which shall
include an explanation): (i) revise the line items in the Final Budget from
time-to-time as necessary to reflect any unforeseen changes, variables or
events or to include additional, unanticipated items of expense, (ii)
reallocate part or all of the amount budgeted with respect to any line item to
another line item, and (iii) to make such other modifications to the Final
Budget, as Developer deems necessary. Any allocation of the contingency
contained in the Final Budget shall require the approval of the Authority. In
addition, the Authority shall receive written notices of all change orders,
and any change orders in excess of (x) Seven Hundred Fifty Thousand Dollars
($750,000) in any single instance, (y) Three Million Dollars ($3,000,000) in
the aggregate in any one month or, (z) Twelve Million Dollars ($12,000,000) in
the aggregate over the duration of the Project, shall, at the Authority's
option, require the prior written approval of the Authority (which may be
withheld in its sole and absolute discretion).
5.4 Supervision of the Contractor and Construction. The Construction
Manager, under the direction of Developer, shall supervise the Contractors
engaged to perform services in connection with the construction of the Project.
All Contractors shall be selected and employed in compliance with Section 8.1
of this Development Agreement. The Construction Manager, under the direction
of Developer, shall be responsible for the supervision, review and
administration of any and all Contract Documents or invoices during the
construction and close-out of the Project. Unless otherwise provided in this
Development Agreement, Developer shall have full power and authority to act on
behalf of the Authority in connection with any Contract Documents which have
been approved by the Authority; provided, however, that Developer shall not
have any authority to declare a default or exercise remedies under any Contract
Documents without the Authority's prior written approval, which may be withheld
in its sole and absolute discretion.
Developer and/or the Construction Manager, shall have control of and
charge and responsibility for, supervision of any Persons performing work on
the Property in connection with the Project. The Construction Manager, under
the direction of Developer and subject to review by the Architect, shall cause
the Contractors to construct the Project in accordance with the Plans or
Specifications and other requirements of the Contract Documents, including,
without limitation, any changes or modifications thereto approved by the
Authority, and shall not authorize the Contractors to pay or incur any
obligations not approved by the Authority (to the extent such approval is
required hereunder). Developer, in consultation with the Architect, the
Construction Manager and the Authority's Representative, shall review
applications for payment for submission to the Authority and review and
certify the amounts due. In addition, Developer, in consultation with the
Authority's Representative, shall supervise and assist the Architect and the
Construction Manager in: (a) interpreting and deciding matters concerning the
performance of any Contractor and the requirements of the Contract Documents;
(b) observing and evaluating the work performed and rejecting work which does
not conform to construction contracts and related documents; (c) using
reasonable efforts to cause the Contractors to pay punctually all sums due for
labor, materials, fixtures or equipment used or purchased in connection with
the construction of the Project; and (d) inspecting the work to determine the
dates of temporary occupancy, partial, substantial and final Completion of the
Project (which must be agreed to by the Architect and the Authority).
5.5 Late Payment Fees; Bonus; Delay Claims. The Authority and
Developer agree that time is of the essence in completing the Project and,
together with the Construction Manager, they may seek to include in certain
material Contract Documents, certain provisions that if a Contractor fails to
meet project schedules, the Contract Documents shall provide that such
Contractor shall pay to the Authority an amount to be determined by Developer
and the Authority for each calendar day that it fails to meet such project
schedules, as liquidated damages and not a penalty. In addition, subject to
the approval of the Authority (which may not be unreasonably withheld), the
Contract Documents may include a bonus payment if a Contractor completes its
work on the Project prior to the deadline therefor.
ARTICLE 6
SELECTION OF EQUIPMENT, FURNITURE AND FURNISHINGS
Subject to the Final Budget for the Project, Developer shall, through
itself or a purchasing agent retained by the Authority, arrange for the
selection of vendors and suppliers for purchase by the Authority of equipment,
furniture and furnishings required to operate the Project. Alternatively, at
the Authority's option, Developer shall arrange for the procurement of
equipment, furniture and furnishings on lease terms approved by the Authority.
All vendors and suppliers shall be selected and employed in compliance with
Section 8.1 below. Developer shall be responsible for the negotiation,
preparation, supervision, review and administration of any and all contracts,
agreements or invoices with vendors and suppliers, and, unless otherwise
provided in this Development Agreement, Developer, consistent with the terms
of the Final Budget, shall have full power and authority to act on behalf of
the Authority in connection with any contracts which have been approved by the
Authority with vendors and suppliers. Notwithstanding the foregoing, with
respect to any such contract in excess of Seven Hundred Fifty Thousand Dollars
($750,000), Developer shall not terminate such contract or exercise other
remedies with respect thereto without the Authority's prior written consent,
which may be withheld in its sole and absolute discretion.
ARTICLE 7
FUNDING REQUIREMENTS OF THE PROJECT
7.1 Tribe's Funding Obligations. Developer agrees to cooperate fully
with the Authority in the Authority's efforts to arrange the Construction
Financing. The Authority shall, prior to commencement of construction of the
Project, make available or otherwise cause to be established a development
fund into which shall be deposited all of the proceeds of the Construction
Financing. Said funds shall be designated exclusively for performing the
Authority's obligations under any agreements entered into with respect to the
management, supervision, design, construction, equipping and opening of the
Project. The funds procured under the Construction Financing shall be used to
discharge the Authority's obligations under any and all agreements entered
into for the management, supervision, design, construction, equipping and
opening of the Project, including, without limitation, consulting fees,
professional fees, on-site and off-site improvements, architectural,
engineering, contractors' fees and costs, furniture, signs, trade fixtures and
equipment necessary for implementing the operation of the Project, closing and
financing related costs, and interest as provided under the Construction
Financing.
7.2 Deadline for Construction Financing. Notwithstanding any contrary
provision contained herein, if the Authority fails to obtain Construction
Financing on or before December 1, 1998, the Authority shall provide Developer
with written notice that the Construction Financing has not been obtained,
together with written notice either, at its sole option that (a) the Authority
has elected to proceed with the design, construction, equipping and opening
of the Project based upon alternative financing arrangements or (b) the
Project has been suspended. Upon any such election to suspend the Project,
the Authority shall pay all amounts due to the Architect, the Construction
Manager or other Contractors for the period prior to the date of such
suspension and shall pay to Developer its reasonable out of pocket expenses
directly related to the Project Executive and the services provided in
connection with the performance of its duties hereunder prior to the date of
such suspension. If the Authority elects to proceed with the Project, the
Authority shall provide Developer with proof of alternative financing,
whereupon Developer shall proceed with its obligations pursuant to this
Development Agreement. If the Authority elects to suspend the Project,
Developer shall suspend its services under this Development Agreement pending
receipt from the Authority of a notice to proceed. If the Authority
subsequently obtains financing for the Project, the parties' obligations under
this Development Agreement shall be reinstated.
ARTICLE 8
ADDITIONAL DUTIES, OBLIGATIONS AND AUTHORITY OF DEVELOPER
8.1 Approval of Contractors, Vendors and Suppliers. Upon notice to the
Authority, Developer shall be responsible for determining the acceptability of
Contractors, vendors and suppliers proposed by the Architect and the
Construction Manager; provided, however, that if any Contractor, vendor or
supplier is to perform work with respect to the Project, including, without
limitation, performing labor or other services or delivering or installing any
materials, goods, equipment, furniture or furnishings, for an amount greater
than Seven Hundred Fifty Thousand Dollars ($750,000), the selection of such
Contractor, vendor or supplier must be approved in writing by the Authority.
In order to maximize the benefits of the Project to the Tribe and the
Authority, Developer shall implement procedures described in the Tribal
Employment Rights Ordinance or otherwise developed by the Authority so that
preference be given in the recruiting, prequalification, negotiation and
selection of the Architect and the Construction Manager and all Contractors,
vendors and suppliers to business entities or persons which have been approved
by the Authority (the "Certified Entities") in all employment categories
relating to the design, construction, equipping and opening of the Project.
If there are Certified Entities that are experienced in the relevant
employment category, the opportunity to compete for employment in such
employment category shall be made available to such Certified Entities. Only
in the event that the bids by such Certified Entities are unreasonable based
on commercially competitive standards or that the Certified Entities lack the
capability to complete the contract, shall the bidding with respect to such
employment category be reopened to entities or persons that are not Certified
Entities. If Developer or the Construction Manager determines that a Certified
Entity lacks the capability to complete a contract, Developer shall so notify
the Authority at least five (5) days before bidding therefor is opened to
entities or persons that are not Certified Entities, and Developer and the
Construction Manager shall require that the Certified Entities be considered
as a subcontractor with respect to portions of such contract for which they
are qualified.
8.2 Employment of Other Professionals. The Authority, in
consultation with Developer, shall select and employ other professionals,
including, without limitation, surveyors, attorneys, accountants and public
relations or advertising firms, to perform services required for the
Project.
8.3 Expenditures. Subject to variances and change orders
specifically permitted hereunder, Developer shall not authorize any
expenditure of funds other than expenditures authorized by the Authority as
set forth in the Preliminary Budget (as modified from time to time in
accordance with the terms hereof) or the Final Budget for the Project (as
modified from time to time in accordance with the terms hereof).
8.4 Progress Reports and Meetings. The Authority, the Project
Executive and the Construction Manager shall have weekly meetings (and other
meetings as may be needed) to discuss the progress of the Project. In
addition, on a monthly basis, the Executive Project Committee shall meet to
discuss all issues with respect to the Project, including, without limitation,
updates to the Project Schedule and Preliminary or Final Budget (as applicable),
any claims or disputes, the status of the work and all other relevant items.
Prior to such monthly meetings, Developer shall submit to the Authority monthly
progress reports showing the then present status of design and/or construction
of the Project. If the progress reports reflect a substantial deviation from
the budget or design or construction progress schedules approved by the
Authority, Developer shall submit to the Authority with Developer's design or
construction report an explanation thereof and proposed corrective steps, as
applicable.
8.5 Submission of Contracts. Developer agrees promptly to submit to
the Authority copies of all contracts and subcontracts relating to the Project
from time to time received by Developer and all other documents related to the
Project. Developer, with the assistance of the Construction Manager, shall
assist the Authority in complying with the terms of and maintain in full force
all contracts for design or construction of the Project and any surety bonds
issued in connection therewith. Developer shall give the Authority immediate
notice of any known failure of any party to comply with the terms of any such
contract or bonds and shall submit to the Authority copies of any correspondence
regarding an alleged default by any person in relation to any contract or
agreement relating to the Project, together with an explanation thereof and
proposed corrective steps.
8.6 Permits and Licenses. Except for permitting and licensing
requirements of the Tribe, Developer shall advise the Authority as to all
permitting and licensing requirements for the Project, and the Authority, in
consultation with Developer, shall obtain or cause to be obtained all permits
and licenses required for the design, construction equipping and opening of
the Project.
8.7 Maintenance of Records. Developer, the Construction Manager and
the Architect, shall maintain on the Property all books and records in
connection with the design, construction, equipping and opening of the Project,
together with all documents and papers pertaining to the Project, including,
without limitation, general maintenance of such full and detailed accounts as
may be necessary for proper financial management of the Project. All such
documents shall at all times be open to the inspection of the Authority. Copies
of such documents shall be provided to the Authority or the Authority's
Representative, and Developer shall cooperate with any audit of such books and
records. After the expiration or termination of this Development Agreement,
Developer shall deliver all such books and records together with all such
related documents and papers to the Authority, and Developer shall be entitled
to retain a copy.
8.8 Staffing of Project. (a) Developer shall have the responsibility
and authority to direct the selection, retention and training of all initial
employees performing regular services in connection with the management,
operation and maintenance of the Project on the Completion Date. No later than
sixty (60) days prior to the anticipated Completion Date of the Project (or
any portion thereof that will be opened for business), Developer shall submit
to the Authority, for its approval, a detailed staffing plan for all personnel
necessary to operate the Project (or portion thereof) in a first class manner,
which staffing plan shall include, without limitation, organizational charts,
a job classification system with job descriptions, salary levels and wage scales
(the "Staffing Plan"). The Staffing Plan shall be subject to the Authority's
review and approval (which approval may be withheld in its sole and absolute
discretion) and to compliance with the Tribal Employment Rights Ordinance.
(b) All prospective employees shall be subject to the Authority's
approval, which approval, with respect to Key Personnel, may be withheld in
the Authority's sole and absolute discretion. All Key Personnel and any and
all other employees as required by the Director of Regulation of the Authority
shall be subject to background checks to be performed by the Authority (and
the Authority shall have the right to reject any candidate for any position
based on the results thereof). In order to maximize the benefits of the
Project to the Tribe and the Authority, in accordance with the Tribal
Employment Rights Ordinance, Developer shall give preference in employment and
training for Key Personnel positions to qualified candidates recommended by
the Authority. In addition, in accordance with the Tribal Employment Rights
Ordinance, Developer shall give preference in recruiting, training and
employment by the Authority for all positions to qualified members of the
Tribe and their spouses and children in all job categories of the Project,
including, without limitation, management positions. Only if no tribal
members, spouses or children are qualified for a particular job opening may
other candidates be considered. Thereafter, preference shall be given to
qualified, enrolled members of other federally recognized Indian tribes.
Developer shall supervise all activities determined necessary by the Authority
to recruit and train Tribe members, spouses and children, including, without
limitation, providing job fairs for members of the Tribe and clearly specifying
in all job advertisements the preference for Tribe members.
(c) Notwithstanding anything contained herein to the contrary, from
and after the Completion Date of the Project (or any portion thereof which is
sooner opened for business), all decisions with respect to the management,
operation and maintenance of the Project (or portion thereof) shall be made
exclusively by the Authority.
8.9 Force Majeure Events. Notwithstanding anything in this
Development Agreement to the contrary, the parties hereto shall be excused
from their obligations hereunder to the extent and for so long as such party
shall be prevented from compliance by reason of "Force Majeure Causes",
provided notice of such inability to comply is given to the other party to
this Development Agreement within ten (10) days after the occurrence of the
applicable Force Majeure Cause.
ARTICLE 9
COMPENSATION TO DEVELOPER
The Authority shall pay to Developer as compensation forthe services set forth
herein, a fee in the amount of Fourteen Million Dollars ($14,000,000) (the
"Development Fee"). The Development Fee shall be paid as follows: on January
15, 2000 and thereafter within fifteen (15) days following the end of each
calendar quarter until the Completion Date, the Authority shall pay to
Developer a percentage of the Development Fee equal to the completion
percentage of the Project certified by Developer as of December 31, 1999 and
the end of each successive calendar quarter. The Authority shall make
payments of the Development Fee to Developer upon receipt of an application
for payment from Developer, which statement shall include evidence of
satisfaction of the foregoing conditions to payment.
ARTICLE 10
TERM
The "Term" of this Development Agreement shall commence on the Effective
Date and shall expire upon the earlier of (i) the Completion Date of the
Project in the event construction has commenced or (ii) ten (10) years from
the Effective Date of this Development Agreement.
ARTICLE 11
TERMINATION
Subject to Section 12.5 below, this Development Agreement may only be
terminated by the Authority or Developer if the other party commits any
material breach or fails to perform any material duty or obligation of this
Development Agreement. Upon learning of a material breach or default, the
non-breaching party shall send written notice of such material breach or
default to the breaching party. Subject to Section 12.5 below, if the
breaching party fails to cure the material breach or default within thirty
(30) days of receipt of such written notice from the non-breaching party, the
non-breaching party may terminate this Development Agreement by providing the
defaulting party with a notice of termination (which shall be immediately
effective).
ARTICLE 12
DISPUTE RESOLUTION
12.1 Authority's Consent to Suit. Subject to Section 12.5 below, the
Authority expressly waives its immunity from unconsented suit for the purpose
of permitting or compelling arbitration as provided in this Article 12, and to
be sued in any court of competent jurisdiction for any claims by Developer for
the purpose of compelling arbitration or enforcing any arbitration award or
judgment arising out of this Development Agreement. In no instance shall any
enforcement of any kind whatsoever be allowed against any assets of the
Authority other than the limited assets of the Authority specified in Section
12.4.
12.2 Arbitration. All disputes controversies or claims arising out
of or relating to this Development Agreement, or the termination of this
Development Agreement, shall be settled by binding arbitration in accordance
with the commercial arbitration rules of the American Arbitration Association
and the Federal Arbitration Act. The parties agree that binding arbitration
shall be the sole remedy as to all disputes arising out this Development
Agreement, unless the parties mutually agree otherwise. The arbitrator(s)
shall have no authority to award punitive damages and the parties and the
arbitrator(s) shall maintain strict confidentiality with respect to the
arbitration. In determining any matter, the arbitrator(s) shall apply the
terms of this Development Agreement, including, without limitation, Section
12.5, without adding to, modifying or changing the terms in any respect, and
shall apply the laws of the Tribe. All arbitration hearings shall be held at
a place designated by the arbitrator(s) in New London County, Connecticut.
12.3 Limitation of Actions. The Authority's waiver of immunity from
unconsented suit is specifically limited to the following actions and judicial
remedies: (i) the enforcement of an award of actual damages by arbitration
subject to Section 12.4; provided, however, that the arbitrator(s) and/or the
court shall have no authority or jurisdiction to order execution against any
assets or revenues of the Authority except undistributed or future revenues of
the Project and the existing Mohegan Sun casino; (ii) the enforcement of a
determination by an arbitrator that prohibits the Authority from taking an
action that would prevent Developer from performing this Development Agreement
pursuant to its terms, or that requires the Authority to specifically perform
any obligation under this Development Agreement; (iii) an action to compel
arbitration pursuant to Section 12.2; and (iv) an action to preserve the status
quo during disputes pursuant to Section 12.5.
12.4 Authority's or Tribe's Assets. Nothing in this Development
Agreement shall obligate or authorize the payment or encumbrance of any assets
or revenues of the Authority or the Tribe other than undistributed or future
revenues of the Project or the existing Mohegan Sun casino. Neither the Tribe
nor any director, officer or office holder, employee, agent, representative or
member of the Authority or the Tribe, as such, shall have any liability for
any obligations of the Authority under this Development Agreement or for any
claim based upon, in respect of, or by reason of such obligations or their
creation.
12.5 Limit of Damages Payable by Developer. Notwithstanding anything
in this Development Agreement to the contrary, Developer shall not be liable
hereunder for the payment of damages to the Authority in excess of the amount
of the Development Fee paid hereunder.
12.6 Performance During Disputes. The parties mutually agree that during
any kind of controversy, claim, disagreement or dispute, including, without
limitation, a dispute as to the validity of this Development Agreement, the
Authority and Developer shall continue their performance of the provisions of
this Development Agreement for a period of forty-five (45) days, provided
funds necessary to pay Project costs which continue to be incurred (other than
amounts in dispute) continue to be available.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 Authorization. The Authority and Developer represent and
warrant to each other that each has full power and authority to execute this
Development Agreement and to be bound by and perform the terms hereof. Each
party shall furnish evidence of such authority to the other. The Authority and
Developer each represent and warrant to the other that the execution, delivery
and performance of this Development Agreement shall not conflict with the
terms of their organizational documents, any agreement to which it is a party
or by which it is bound or any law, rule or regulation to which its subject.
13.2 Relationship. Developer and the Authority shall not be
construed as joint venturers or partners of each other by reason of this
Development Agreement, and neither shall have the power to bind or obligate
the other except as set forth in this Development Agreement. Developer is
retained by the Authority only for the purposes and to the extent set forth in
this Development Agreement, and Developer's relationship to the Authority
shall be that of an independent contractor.
13.3 Governing Law. The rights and obligations of the parties and
the interpretation and performance of this Development Agreement shall be
governed by the law of the Tribe, and, to the extent not addressed by the law
of the Tribe, by applicable federal law, and, to the extent not addressed by
the law of the Tribe or applicable federal law, the law of the State of
Connecticut, without regard to its principles regarding conflicts of law.
13.4 Amendment. No modification or amendment to this Development
Agreement shall be effective unless mutually agreed upon by both parties in
writing and unless such modification or amendment has received any required
regulatory approval.
13.5 Notices. All notices, demands, requests or other communications
which may be or are required to be given, served or sent to either party in
connection with the matters which are the subject of this Development
Agreement shall be in writing and shall be personally delivered to such party
or mailed first class, postage prepaid, or transmitted by a major overnight
commercial courier or by facsimile to the address for such party as set forth
below, or to such other address furnished by such parties for such purpose by
means of notice pursuant to this Section 13.5:
If to the Authority:
The Mohegan Tribal Gaming Authority
Xxx Xxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Chairman of the Management Board
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Mohegan Tribal Gaming Authority
Xxx Xxxxxxx Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Developer:
Trading Cove Associates
000 Xxxxxxxx Xxxxxxxx
X.X. Xxx 00
Xxxxxxxxx, XX 00000
Attention: Xx. Xxx Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Sun International Hotels Limited
Xxxxx Xxxxxx
X.X. Xxx X-0000
Xxxxxxxx Xxxxxx
Nassau, The Bahamas
Attention: Xx. Xxxxxxx Xxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Notices delivered by mail shall be deemed given five (5) days after such
mailing. Notices given by hand delivery shall be deemed given on the date of
delivery. Notices given by overnight commercial courier shall be deemed given
on the business day immediately following transmittal, and notices delivered
by facsimile shall be deemed given on the date of transmission if the
transmission is confirmed.
13.6 Third Party Beneficiary. This Development Agreement is
exclusively for the benefit of the parties hereto and it may not be enforced
by any party other than the parties to this Development Agreement and shall
not give rise to liability to any third party other than the authorized
successors and assigns of the parties pursuant to Section 13.7.
13.7 Successors and Assigns. The benefits and obligations of this
Development Agreement shall inure to and be binding upon the parties hereto
and their respective successors and assigns. This Development Agreement shall
not be assigned by Developer to an entity other than Sun or an Affiliate of
Sun without the prior written consent of the Authority (which may be withheld
in its sole and absolute discretion) and any required approvals by the Bureau
of Indian Affairs or its authorized representatives. At all times during the
term of this Development Agreement, Sun, or a wholly-owned subsidiary of Sun
must own at least fifty percent (50%) of the partnership interests in
Developer. The Authority may, without the consent of Developer, but subject
to any required approvals of the Bureau of Indian Affairs or its authorized
representative, assign this Development Agreement to the Tribe, another
instrumentality of the Tribe or an entity wholly owned by the Tribe organized
to conduct the Authority's gaming enterprise and the business of the Project.
In the event of any such permitted assignment by the Authority or its
authorized assignee, the assigning party shall be relieved of its obligations
under this Development Agreement which accrue from and after the date of the
assignment, provided that the assignee shall assume in writing the obligations
of the assignor under this Development Agreement and agree to perform and be
bound by the terms and provisions hereof effective from and after the date of
such assignment.
13.8 Severability. The invalidity of any one or more provisions
hereof or of any other agreement or instrument given pursuant to or in
connection with this Development Agreement shall not affect the remaining
portions of this Development Agreement or any such other agreement or
instrument or any part thereof, all of which are inserted conditionally on
their being held valid in law; and in the event that one or more of the
provisions contained herein or therein should be invalid, or should operate to
render this Development Agreement or any such other agreement or instrument
invalid, the parties agree to negotiate, in good faith, to modify or amend
such invalid provision to obtain for the parties the intended benefits of such
provision (or this Development Agreement and such other agreements and
instruments shall be construed as if such invalid provision had not been
inserted).
13.9 Entire Agreement. This Development Agreement (including any
exhibits referred to herein) represents the entire agreement between the
parties hereto with respect to the subject matter hereof. No other
representations, warranties, promises or agreements, express or implied, shall
exist between the parties unless such representations, warranties, promises or
agreements are in writing and bear a date subsequent to the date of this
Development Agreement.
13.10 Headings. The headings used in this Development Agreement are for
the convenience of the parties only and shall not modify nor restrict any of
the terms or provisions hereof.
13.11 Waivers. No failure or delay by Developer or the Authority to
insist upon the strict performance of any covenant, agreement, term or
condition of this Development Agreement, or to exercise any right or remedy
consequent upon the breach thereof, shall constitute a waiver of any such
breach or any subsequent breach of such covenant, agreement, term, or
condition. No covenant, agreement, term or condition of this Development
Agreement and no breach thereof shall be waived, altered or modified except by
written instrument. No waiver of any breach shall affect or alter this
Development Agreement, but each and every covenant, agreement, term and
condition of this Development Agreement shall continue in full force and
effect with respect to any other then existing or subsequent breach thereof.
13.12 Periods of Time. Unless otherwise specified herein, all
references to "days" shall mean calendar days. Whenever any determination is
to be made or action is to be taken on a date specified in this Development
Agreement, if such date shall fall on a Saturday, Sunday or legal holiday
under the laws of the State of Connecticut or the Tribe, then in such event
said date shall be extended to the next day which is not a Saturday, Sunday or
legal holiday.
13.13 Consents and Approvals. Where approval or consent or other
action of the Authority, or any agent or political subdivision of the
Authority, is required, such approval shall mean the written approval of the
Management Board evidenced by a duly enacted resolution thereof, or, if not
provided by resolution of the Management Board, the written approval of the
Authority Representative (to the extent authorized by the Management Board) or
such other person or entity designated by resolution of the Management Board.
If the approval of Developer or the Authority is required hereunder, Developer
or the Authority, as the case may be, shall request such approval in writing,
which request shall specify the matter as to which such approval is requested
and provide reasonable detail regarding such matter. If Developer or the
Authority, as the case may be, does not receive a negative response or a
notice that more time and/or information is necessary to make a decision
(which notice shall specify the amount of time and/or the information
necessary), in writing, from such other party within fifteen (15) days
thereafter, such other party shall be deemed to have approved the matter
referred to in such request.
13.14 Government Savings Clause. This Development Agreement shall be
submitted to the Bureau of Indian Affairs for its approval pursuant to its
authority under 25 U.S.C. § 81 and the NIGC, to the extent required by
law. In addition, each party agrees to pursue such approval and execute,
deliver, and if necessary, record any and all additional instruments,
certifications, amendments, modifications and other documents as may be
required by the United States Department of the Interior, Bureau of Indian
Affairs, the office of the Field Solicitor, or any applicable statute, rule or
regulation in order to effectuate, complete, perfect, continue or preserve the
respective rights, obligations and interest of the parties to the fullest
extent permitted by law; provided that any such instrument, certification,
amendment, modification or other document shall not materially change the
respective rights, remedies or obligations of the parties under this
Development Agreement or related agreements or documents.
13.15 Termination of Prior Agreements. As of the Effective Date, the
Authority and Developer terminate all prior agreements, arrangements or
understandings and all covenants, terms and provisions contained therein with
respect to development and construction of facilities on the Property,
including, without limitation, the Gaming Development Agreement and the Hotel
Development Agreement.
13.16 Representation before Public Bodies. Without the prior written
consent of the Authority, Developer shall have no right or authority to
represent the Authority before public and governmental bodies in connection
with any zoning, environmental, site, easement, title, design, construction or
other matter related to the Project.
13.17 Non-Impairment of Agreement. The Tribe shall not take any action,
enter into any agreement, amend its constitution or enact any ordinance, law,
rule or regulation that would prejudice or have a material adverse affect on
the rights of Developer under this Development Agreement. Neither the Tribe
nor any committee, agency, board or other official body of the Tribe shall, by
exercise of the police power, eminent domain or otherwise, act to modify,
amend or in any manner impair the obligations of the parties under this
Development Agreement without the written consent of Developer. Any such
action or attempted action shall be void ab initio. The Tribe acknowledges
that the MTC Court has the authority to provide equitable relief to enforce
this provision.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Development
Agreement on and as of the date first written above.
THE AUTHORITY:
MOHEGAN TRIBAL GAMING AUTHORITY
By:____________________________
Name: Xxxxxx Xxxxxx
Its: Chairman of the Management Board
DEVELOPER:
By: WATERFORD GAMING, L.L.C.
Its: General Partner
By: LMW INVESTMENTS, INC., member
By:_______________________
Name: Xxx Xxxxxx
Its: President
By: XXXXXX SUITES, INC., member
By:_______________________
Name: Xxx Xxxxxx
Its: Vice President
By: SUN COVE LTD.
Its: General Partner
By:_______________________
Name: Xxxxxx X. Xxxxxxx
Its: President
Date: Approved Pursuant to 25 U.S.C. § 81
United States Department of Interior
Bureau of Indian Affairs:
By:____________________________
Name:__________________________
Title:_________________________
JOINDER
The Mohegan Tribe of Indians of Connecticut hereby agrees to comply with
Section 13.17 of this Development Agreement.
Date: THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT
By:________________________
Name: Xxxxxx Xxxxxx
Title: Chairman of the Management Board
