Exhibit 10.1


 


EMPLOYMENT AGREEMENT


 


This Employment Agreement (“Agreement”) is
made and entered into as of the 9 day of April, 2010 (“Effective Date”) by and
between the River Rock Entertainment Authority (“Authority”), a governmental
instrumentality of the Dry Creek Rancheria Band of Pomo Indians (“Tribe”), and
David F. Fendrick (“Key Employee”).  The
day on which the term of this Agreement begins shall be referred to as the “Commencement
Date” and is further defined in Section 3 below.


 


The parties hereto expressly intend that
this Agreement describe Key Employee’s relationship as an employee of the
Authority and not as a management contractor, including but not limited to any
management contractor referred to in 25 USC § 2711 and 25 CFR § 502.15. The
parties have purposefully structured the terms and provisions of this Agreement
consistent with, and in furtherance of this expressed intent.


 


1.       Employment.
On and subject to the terms and
conditions of this Agreement, the Authority hereby employs Key Employee, and
Key Employee hereby accepts the employment offer by the Authority, as the Chief
Executive Officer (CEO) of the Authority and as General Manager of the River
Rock Casino (“Casino”), a wholly owned Tribal economic development project that
is operated through the Authority. Key Employee shall assume overall management
responsibility for the operation of all Authority and Casino related gaming
operations.


 


2.        
Reporting. Key 
Employee shall report and be accountable to, and work under the direction
of, the Authority’s Board of Directors (the “Authority Board”), or such Tribal
agency or entity as the Authority, or if the Authority shall cease to exist,
the Tribe’s Board of Directors (“Tribal Board”), may hereafter designate, which
thereafter shall be regarded  herein as
the Authority Board as that term is used in this Agreement.  Key Employee shall report to the Authority
Board no less than monthly and as requested by the Authority Board with respect
to all aspects of the Casino.  Without
limiting the foregoing, Key Employee shall perform such executive duties as are
commonly attendant upon the office of a casino CEO/GM and such further
executive duties as may be specified from time to time by the Authority Board,  which include:


 


(a)  Overall supervision of  the Casino and its staff,. departments, and
operations, including but not limited to ensuring compliance with all
procedures, controls, policies, and other requirements necessary to the
efficient, profitable and legal operation of the Casino;


 


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(b)  Planning and preparation of
food, beverage and other services of the Casino;


 


(c)  Working in conjunction with the
Tribe’s Human Resources Department to assure the recruitment and hiring of
competent Casino managers, supervisors and employees;


 


(d)  Working with the Tribe’s Human
Resources Department to recommend and participate in the design, preparation
and implementation of Casino management, and employee policies and procedures,
training programs; and matters related thereto;


 


(e) Structuring or restructuring,
employing and terminating such employees with consultation from Human Resources
(subject to the approval by the Authority Board with respect to the termination
of any employee subject to a written employment agreement), and the
implementation of all Casino personnel, wage and benefit policies, which
policies shall be subject to Authority Board approval.


 


3.             Term. The term
of this Agreement (“Term”) shall commence on the Commencement Date and shall
end three (3) years after the Commencement Date, unless terminated earlier
by the parties as provided herein. The Commencement Date shall be the last date
following the Effective Date when 1) all documents as required prior to the
commencement of employment have been submitted in satisfactory form to the
Human Resources Department; 2) the Tribal Gaming Commission has issued a
license permitting the Key Employee to hold the position contemplated in this
Agreement; and 3) any background investigations, licenses or suitability
findings have been made in accordance with applicable law as a condition to
employment, provided that at the discretion of the Authority Board, in the
event the Commencement Date does not occur within 30 days of the Effective Date,
this Agreement may be terminated.


 


4.             Full-Time Service. Key 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



 


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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 Authority Board.


 


5.             Compensation.


 


(a)  Key Employee will be paid a base
salary of Three Hundred Thousand Dollars ($300,000.00) per annum (“Base
Compensation”), subject to applicable withholding taxes and required
deductions.


 


(b)  Base Compensation shall be paid
every other work week on the day established by the Authority for all Casino
employees.


 


(c)           Key
Employee will be eligible for an annual bonus, at the discretion of the
Authority Board, which will be payable within 45 days after the end of each
Contract Year, and shall not exceed thirty percent (30%) of Key Employee’s Base
Compensation, based on the following criteria:


 


(i)            Key
Employee’s success in meeting or exceeding Casino performance criteria proposed
by the Key Employee prior to the start of each Casino fiscal year and approved
by the Authority Board;


 


(ii)           Key Employee’s success in establishing and successfully
implementing various programs for the improvement and effective and profitable
operation of the Casino established by the Authority and as to which the Key
Employee is charged with responsibility; and


 


(iii)          Key Employee’s demonstrated leadership and communication
skills.


 


(d)           Key
Employee will be entitled, on the same basis as other employees of the Casino,
to participate in and to receive benefits under any of the Casino’s employee
benefit plans, if any, as such plans may be modified from time to time, except
that Key Employee will be entitled to one week of vacation in excess of the
Authority’s normal vacation policy for employees of the Casino, accrued in
accordance with the Casino’s normal vacation policy.


 


(e)           The
Authority will reimburse Key Employee 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 Authority and such expenses being within an annual budget
approved by the Authority Board, or if there is none, the average amount
expended for such purposes over the previous three year period. 


 


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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.


 


(f)            Key
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 Key
Employee’s obligations under this Agreement, except for conduct that
constitutes a basis for Good Cause termination under Section 7.3 below;
provided that all such defenses shall be managed and controlled by the
Authority and with counsel reasonably approved by Authority. Key Employee is
and will continue to be covered under the Authority’s errors and omissions
insurance as such insurance covers all members of the Authority Board.


 


6.  Licensing Issues. Key Employee
warrants and represents that he is eligible and suitable for a background
clearance and license as being suitable for holding a key employee or manager’s
position in a gaming establishment under Tribal, State and federal law. Key
Employee agrees to timely apply for any license(s) and background
investigations as may be required under applicable law and as may be necessary
to enable him to engage in his employment hereunder. The Authority or the
Casino shall pay all costs
associated with such licensing and backgrounding. Key Employee will maintain
all gaming licenses and suitability determinations in good standing as a
continuing condition of his employment under this Agreement, and shall notify
the Dry Creek Gaming Commission (“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 Key Employee.


 


7.             Termination.


 


7.1           Either
the Authority or the Key Employee may terminate this Agreement and Key Employee’s
employment at any time, but any termination shall be subject to the terms set
forth below.


 


7.2           The
termination, revocation or final disapproval of any license or suitability determination required by law to be held by or determined with respect to Key  Employee in connection with his employment at or in
connection with the Casino or any other gaming activities of the Authority, or
a final determination by any governmental gaming licensing or backgrounding
agency that Employee is unsuitable 


 


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for employment in gaming, shall be grounds
for the immediate termination of Key Employee.


 


7.3           The
Authority may terminate Key Employee and this Agreement for “Good Cause” at any
time after such Good Cause has occurred. 
For purposes of this Agreement, Good Cause means:


 


(a)           Key
Employee’s conviction  in state or
federal court of any felony, or of any crime involving moral turpitude, including,
but not limited to those involving fraud, theft, embezzlement, dishonesty, or a
violation of any gaming law; any act of dishonesty, moral turpitude, or theft;
or any conduct which reflects negatively on the honesty, integrity or fairness
of the Tribe, the Casino or the Authority or its officers, directors,
employees, representatives, or members;


 


(b)           Any
act or failure to act by Key Employee that places the Tribe, the Authority or
the Casino in violation of the law, including but not limited to IGRA, the
Compact or the Ordinance;


 


(c)           Key
Employee’s gross negligence or willful misconduct in performing, or the
deliberate or intentional refusal or failure (except by reason of disability)
to perform, his duties as CEO/GM or to follow the lawful directives, orders or
mandates of the Authority Board, the NIGC, the State or the Tribal Gaming
Commission issued in order to carry out the requirements of IGRA, the Compact
or the Ordinance;


 


(d)           Key
Employee’s possession, use, or being under the influence of any unlawful
controlled substance at any time, or abusing a lawful substance or being
inebriated at the workplace, during the Term of this Agreement.  Employee consents to drug and alcohol testing
in accordance with applicable law in order to determine compliance with this
subsection.


 


(e)           The
discovery or development of a criminal record or any reputation, prior
activities, habits or associations which might reasonably be deemed to pose a
threat to the public interest or to the effective regulation of gaming, or in
Key Employee’s background which might reasonably be deemed to create or enhance
the dangers of unsuitable, unfair, or illegal practices and methods and
activities in the conduct of gaming;


 


(f)            Key
Employee’s intentional omission or misrepresentation of any fact required to be
disclosed on any license, suitability or backgrounding application or
questionnaire, or in any gaming regulatory agency or law enforcement
investigation, in connection with his employment,  licensing or backgrounding; Key Employee’s
knowing failure to timely report any change in any such information when known;
or Key Employee’s refusal to timely provide such information or cooperate in
any investigation when requested to do so by such regulatory 


 


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or law enforcement agency;


 


(g)           The
physical or mental incapacity of Employee for a period of 90 consecutive days
which, in the opinion of a health care provider mutually acceptable to the
parties, renders Key Employee substantially unable to perform the essential
functions of his CEO/GM position;


 


(h)           Aiding
a competitor, or the unauthorized disclosure of confidential or proprietary
information;


 


(i)            Gross
neglect or willful disregard of the rules, laws or customs governing conduct on
the Dry Creek Rancheria, or knowingly or through  gross negligence permitting others under his
supervision to do so;


 


(j)            Deliberate
failure by Key Employee to obey lawful orders given by the Authority Board in
connection with his duties as CEO/GM;


 


(k)           Any
material breach of this Agreement by Key Employee.


 


7.4           If
the Authority terminates Key Employee for Good Cause, his employment and this
Agreement may, at the discretion of the Authority Board, be terminated
immediately or at such other date as the Authority Board shall determine “Actual
Termination Date”. Key Employee shall faithfully and competently perform his
duties through the Actual Termination Date. 
If the termination is for Good Cause, no compensation or benefits shall
be due, paid or provided to Key Employee other than the salary and benefits
(but not including any bonuses or severance payments) earned by Key Employee
prior to the Actual Termination Date, except to the extent required by law.


 


7.5           If
the Key Employee resigns for any reason, the following shall apply:


 


(a.)          Key
Employee shall provide Authority with at least 30 calendar days’ advance
written notice prior to the intended resignation date, provided that
notwithstanding such notice, the Authority in its sole discretion may waive any
or all of the 30-day notice and accept Key Employee’s resignation and terminate
his employment and this agreement effective immediately or as of any Actual
Termination Date which is set by the Authority Board for a termination during
said 30-day notice period.


 


(b.)          Key
Employee agrees that following such notice of resignation and until the Actual
Termination Date, he shall faithfully carry out all of his employment
responsibilities under this Agreement and as the Board shall assign and shall
make no statements concerning his resignation without the written consent of
the Board.


 


(c.)          Provided
that Key Employee fulfills his employment duties 


 


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if employment continues during said 30-day
period, Key Employee will continue to be paid, on a pro rata basis, his annual
salary for services performed through the Actual Termination Date, but
following his notice of resignation shall not accrue or be paid any PTO with
respect to said period, and shall waive any right to any bonus or severance
payment whatsoever.


 


(d)           Notwithstanding
any other provision of this Agreement, any resignation by Key Employee will
constitute a waiver and release by Key Employee of all claims, whether known or
unknown, against the Tribe, the Authority and the Casino, and their respective
members, officers, directors, employees, agents, representatives, heirs,
assigns, attorneys, and successors. Key Employee waives the provisions of
California Civil Code § 1542, which states: “A general release does not extend
to claims which the creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him must have materially
affected his settlement with the debtor.” Following Key Employees notice of
resignation, Key Employee shall not accrue or be paid any PTO with respect to
the period, between the notice of termination and the Actual Termination Date,
if any and shall waive any right to any bonus or severance payment whatsoever.


 


8.             Termination by Authority.  Should the Authority terminate Key
Employee without Good Cause, the Authority shall provide the Key Employee sixty
(60) days written notice.  Should the
Authority require the Key Employee to leave his position prior to the Sixty
(60) days, the Authority shall pay the Key Employee for the time not worked.


 


As sole compensation for such termination,
and provided such termination is more than 90 days following the Commencement
Date and Key Employee executes a release and waiver as described in Section 7.5
(d) above,  the Authority shall pay
to Key Employee an amount equal to his salary for a period of three (3) months
from the Actual Date of Termination, together with all employee benefits during
that three-month period which he would have earned had he remained employed
during said period.


 


9.             Mutual Termination. Key Employee
and the Authority may terminate this Agreement by mutual agreement at any time
upon such terms and conditions as are mutually agreeable


 


10.           Confidentiality of Proprietary Information. Any information acquired by Key
Employee while in the employ of the Authority related to employee lists, patron
lists, marketing plans,
operating procedures and other information proprietary to the Authority or


 


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the Casino are acknowledged by Key
Employee to be confidential information belonging to the Authority, and Key
Employee shall not disclose such information without the express written
authorization of the Authority except in the ordinary course of the business of
the Casino. Key Employee shall, upon termination of this Agreement for any
reason whatsoever, turn over to the Authority any and all copies he may have of
employee lists, patron lists, marketing programs, operating procedures and
other information proprietary to the Authority or the Casino. Key Employee
acknowledges that employee lists, patron lists, marketing programs, operating
procedures and other information proprietary to the Authority or the Casino are
confidential and proprietary information belonging to the Authority and the
Authority may exercise any and all remedies available to it at law or in equity
to enforce this Agreement with respect to non-disclosure of any such
proprietary information to which Key Employee has or will become privy while an
employee of Authority. Particularly, the parties agree that, because of the
nature of the subject matter of this paragraph 10, 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 Authority in the
event of a breach of this Agreement by Key Employee. 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 to Authority and that money damages alone will not provide
an adequate remedy to Authority. Notwithstanding the foregoing, Authority also
shall be entitled to money damages for any loss suffered or to be suffered as a
consequence of Key Employee’s breach of this Agreement. The parties acknowledge
that this provision shall survive the termination of this Agreement.


 


11.   Assignment.  This
Agreement may be assigned by the Authority 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 Key Employee and neither this Agreement nor any of the rights
herein granted to Key Employee or the duties assumed by him hereunder may be
assigned by him.


 


12.  Miscellaneous.


 


(a.)   
Key Employee represents to Authority 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, 


 


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interpretation, performance and
enforcement shall be governed by and construed in accordance with the laws of
the Dry Creek Rancheria.


 


(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 out of this Agreement shall be determined in accordance
with the laws of the Tribe. In no event shall any liability of the Tribe, the
Authority, Tribal Gaming Commission or the Casino or any of them exceed an
amount equal in total to three (3) months of the Compensation for a one
year period.


 


The Parties have executed this Agreement
this 9 day of March, 2010, effective as of the Effective Date first written
above.


 


RIVER ROCK ENTERTAINMENT AUTHORITY


 


 




	
  By: 

  	
  /s/ Harvey  Hopkins

  	
   

  	
  Date: April 9, 2010

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Harvey Hopkins, Chairman

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  KEY EMPLOYEE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David F. Fendrick

  	
   

  	
  Date: April 9, 2010

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  David F. Fendrick

  	
   

  	
   

  






 


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