Ordinance
75, As Amended and Restated
AN
ORDINANCE ENACTING REGULATIONS PRESCRIBING PROCEDURES, TERMS AND CONDITIONS
UNDER WHICH 75-YEAR LEASES OF TRIBAL LAND MAY BE GRANTED.
BE AND IT IS HEREBY ENACTED by the Board of Directors of the Tulalip
Tribes of Washington (“Board of Directors”) pursuant to authority
vested in it by Article VI, Section 1(c) and (f), Article VIII, Section
3, of its Constitution and Bylaws and 25 USC Section 415(b), that the
following regulations prescribing procedures, terms and conditions under
which certain leases of Tribal lands of the Tulalip Tribes of Washington
(“Tulalip Tribes”) may be granted are hereby adopted, to-wit:
SECTION I.
EFFECTIVE DATE
These regulations
shall be in full force and effect upon approval of the Secretary of
the Interior or his duly authorized representative or designee (“Secretary).
SECTION II.
SCOPE
These regulations
shall govern and control the leasing of all Tribal lands on the Tulalip
Indian Reservation, either in trust, restricted or fee status, and whether
granted hereunder or heretofore pursuant to prior Tulalip Ordinance
No. 75, as amended, initially approved by the Secretary on August 22,
1991 for the purpose of public or private, religious, educational, recreational,
residential, commercial, industrial and business uses for a period of
duration in excess of thirty (30) years but not exceeding seventy-five
(75) years (including options to renew) by the Tulalip Tribes, an Indian
Tribe reorganized pursuant to Section 16 of the Indian Reorganization
Act of 1934, as amended, 25 USC Section 476; its corporations chartered
under Section 17 thereof, 25 USC Section 477; or any subordinate organization
chartered and duly empowered pursuant to Article VI, Section 1(m) of
the Tribal Constitution and Bylaws; or any Tulalip governmental corporation
chartered under Tulalip Ordinance 82, as approved by the Secretary.
SECTION III.
MANDATORY PROVISIONS
All leases
under and pursuant to these regulations shall contain the following
provisions in substantially the following form:
3.1 Nothing
contained in this lease shall operate to delay or prevent a termination
of Federal trust responsibilities with respect to the land by the
issuance of a fee patent or otherwise during the term of the lease;
however, such termination shall not serve to abrogate the lease. In
the event of such termination, all powers, duties or other functions
of the Secretary of the Interior or authorized representative or designee
shall terminate, and the responsibilities for enforcing compliance
with the covenants of this lease including those of the Secretary
shall be assumed by the lessor or successors in interest. The owners
of the land and the lessee and its lease sureties shall be notified
of any such change in the status of the land.
3.2 The
lessee agrees that they will not use or cause to be used any part
of the leased premises for any unlawful conduct or purpose.
3.3 Leases
granted hereunder shall contain provisions that payment of rentals
are to be made directly to the lessor.
SECTION IV.
RENTAL REQUIREMENTS
No lease
shall be granted at less than the present fair annual rental as determined
by appraisal, or, in the alternative, at a present fair annual or periodic
rental as the Board of Directors deems appropriate under all the circumstances
then present in regard to said lease; PROVIDED, HOWEVER, any lease made
and executed under these regulations to an adult member of the Tulalip
Tribes for homesite purposes on residential Tribal lands, or to a Tulalip
Tribally chartered housing authority for Indian homesites, or between
the Tulalip Tribes, and/or its corporations chartered under Section
17, 25 USC 477, and/or any subordinate organization chartered and duly
empowered pursuant to Article VI, Section 1(m) of the Tribal Constitution
and Bylaws, or any Tulalip governmental corporation chartered under
Tulalip Ordinance 82, as approved by the Secretary may be granted for
a nominal rental.
SECTION V.
BONDS AND INSURANCE
Each lease
granted for business, industrial or commercial uses or organization
shall have the performance of the lessee’s contractual provisions,
in not less than an amount deemed reasonable and prudent by the Board
of Directors, secured by insurance, bond or other security or undertaking
satisfactory to the Board of Directors as well as require the lessee
to provide insurance or other undertaking in an amount or manner adequate
to protect all insurable improvements on the leased premises and to
hold harmless and indemnify the lessor from any liability arising from
lessee’s use and occupancy of the leased premises; provided, that
the requirements of this Section may be modified or waived by the Board
of Directors in the exercise of its business judgment.
SECTION VI.
SPECIAL LIMITATIONS AND EXCEPTIONS
6.1 No
lease shall provide the lessee with any option to renew which would
result in the lessee obtaining a leasehold interest by the exercise
of successive options for a term in the aggregate of more than seventy-five
(75) years.
6.2 All
leases made and executed pursuant to these regulations shall be for
public or private religious, educational, residential, recreational,
commercial, industrial or business purposes and uses, grazing purposes,
and for those farming purposes which require the making of a substantial
investment in the improvement of the land for the production of specialized
crops.
6.3 No
lease shall be made and executed pursuant to these regulations for
the exploitation of any natural resource without the approval of the
Secretary.
6.4 No
lease shall contain an option to purchase.
6.5 Each
lease shall contain a covenant prohibiting a lessee or any number
thereof from forming or annexing to a state municipal corporation
or authority.
6.6 No
lease or combination thereof shall work with a divestiture or diminishment
of the Tribe’s civil regulatory authority and control over said
lands and occupants.
ARTICLE VII.
RENTAL ADJUSTMENT
7.1 Any
lease granted hereunder shall, in the sole discretion of the Board
of Directors, provide for (1) a periodic rental adjustment for the
purpose of allowing lessor to benefit form increases in the value
of the leased premises; (2) a periodic rental adjustment for the purpose
of maintaining the relative purchasing power of the rent contracted
to be paid by the lessee to the lessor; (3) a rental based primarily
on percentages of income produced from the leased premises; (4) a
rental based primarily on percentages of income produced from or by
sublessees; (5) a basic rental based upon a fair market rental return
for the value of the land and improvements, if any, rented; (6) any
combination of (5) above, and (1) through (4), inclusive.
7.2 In
the event of a periodic rental adjustment pursuant to paragraph 7.1(1)
and (5) above, such shall be made only after a determination of a
present fair market rental at the time of the adjustment through appraisal
conducted by not less than two (2) appraisers who shall be instructed
in the consideration of such fair market rental to exclude improvements
or developments accomplished by a lessee during the prior term of
the lease or the contributive value of such improvements unless they
are then the property of the lessor, and, further, in the instance
of residential leases shall not be based upon a highest and best use
different from that to which the leased premises are committed by
the lease.
In the
event of a rental adjustment for the purposes of Paragraph 7.1(2)
such shall be made by reference and comparison to an appropriate and
relevant cost of living index or portions and agreed to by the Board
of Directors.
SECTION VIII.
ASSIGNMENTS, SUBLEASES, AND ENCUMBRANCES
Leases
may contain provisions authorizing the lessee or such one’s successors
in interest to sublease the premises, in whole or in part, assign the
same, or encumber the leasehold interest for the purposes of borrowing
capital for development or improvement or purchase and sale of the leased
premises, including improvements. Such provisions may be with or without
approval of the lessor but if without such approval, any sublease, assignment
or encumbrance shall not serve to relieve or abrogate any sublessor,
assignor or purchaser upon foreclosure from any liability or obligation
to perform the terms, conditions and covenants of the original lessee
or perform the terms, conditions and covenants of the original or successor
lessee under the lease, including that for payment of rent unless the
lease expressly so provides. In the event of any sublease, assignment
or encumbrance by lessee or such one’s successor in interest of
the leasehold interest, the lessor may require notification thereof
together with a copy of the sublease, assignment or encumbrance. All
leases containing suretyship provisions shall provide that any surety
under any bond shall first consent in writing to any sublease, assignment,
encumbrance or amendment of the lease before any of such shall be valid
and binding upon the lessor. Notwithstanding the provisions of this
Ordinance, any lease granted hereunder authorizing the encumbrance of
the leasehold interest may contain such provisions necessary to conform
with the eligibility requirements for leasehold secured lending as may
be now or hereafter be promulgated by FNMA, FHLMC, FHA/HUD and/or VA
in the discretion of the Board of Directors.
SECTION IX.
OWNERSHIP OF IMPROVEMENTS
Improvements
placed upon the leased premises shall become the property of the lessor
upon the expiration of the lease unless specifically excepted therefrom
under the provisions of the lease. In the event of such exception, the
lease shall specify the maximum time allowed for removal of any improvements
so excepted and require restoration of the premises by the lessee.
SECTION X.
LEASE FEES
The following
fees may be charged by lessor to defray costs of lease administration
and shall be collected from lessee in addition to legal expense and
costs:
| a.
Original lease set-up fee |
$2,500.00 |
| b.
Upon assignment, sublease or encumbrance |
750.00 |
| c.
Upon amendment, extension, modification or other document issued
in connection with the lease |
500.00 |
The foregoing
fees may be increased or decreased in such amounts as are deemed by
the Board of Directors appropriate to defray costs of administration
of any lease or waived in the discretion of the Board of Directors.
SECTION XI.
VIOLATION OF LEASE PROVISIONS – VENUE
11.1
if, in the opinion of the lessor, any term, condition or covenant
of the lease has been breached by failure to perform, the lessee shall
be notified of such claimed breach and given the time prescribed by
the lease after transmittal or receipt of such notice in which to
perform and cure the same if the breach is capable of cure. A copy
of such notice shall be similarly transmitted to any surety on the
bond. Failure to remedy the claimed breach may be cause to declare
the lease terminated and canceled and lessor may thereafter proceed
to avail itself of such remedies as provided by law and/or by the
provisions of the lease. The lessee in all leases shall consent to
jurisdiction and venue of any lease enforcement action brought by
the lessor being laid in any court of competent jurisdiction. Provided,
however, nothing herein shall prevent lease provisions providing for
the mediation or arbitration of disputes.
11.2
Nothing herein contained shall be construed to deprive the Tulalip
Tribes of the right, at its option, to request the United States to
enforce any lease entered into under and pursuant to these regulations
or to bring any action for breach of any such lease by a lessee in
the federal courts, nor shall these regulations be construed as an
expression of intention of the Congress of the United States and of
the Tulalip Tribes of Washington to abrogate the trust responsibility
of the United States over lands to be leased hereunder held by it
in trust for the Tulalip Tribes, nor shall the adoption and implementation
of these regulations be deemed to exclude the right of the Tulalip
Tribes, should it deem fit to lease Tribal lands pursuant to other
laws and regulations now enacted or hereafter amended, should such
allow it to do so.
11.3
Nothing herein contained shall be construed or interpreted to have
either waived the sovereign immunity of or be deemed a consent to
be sued by the Tulalip Tribes, whether acting in its governmental
or proprietary capacities; provided, however, total or partial waivers
of sovereign immunity and/or consent to be sued may be contained in
any lease entered under the authority of this Ordinance and Regulation.
SECTION XII.
COMPATIBILITY TO COMPREHENSIVE PLAN AND LAND USE/BUILDING CODES
No lease
shall be granted unless the use to which the leased premises will be
utilizing and improvements to be constructed are in conformance and
compliance with the Comprehensive Land Use Plan of the lessor, its zoning
and subdivision ordinances and its
building
and other applicable codes. In the event there exists no valid Tribal
ordinance regulating the aforesaid subject matters, the otherwise appropriate
and relevant ordinances and codes of the County of Snohomish shall be
applicable.
SECTION XIII.
ENVIRONMENTAL IMPACTS
No lease
shall be made or executed pursuant hereto until the Board of Directors
has considered the environmental aspects thereof; considered the relationship
of the use to neighboring lands; the height, quality and safety of any
structures or other facilities to be constructed on the leased lands,
including but not limited to the operational effects from structures
and facilities so erected and the availability of a judicial forum for
all civil and criminal causes arising on the leased lands. Such review
shall be conducted by the appropriate Tribal staff which shall report
thereof to the Board of Directors prior to their execution and signing
of any lease made hereunder.
SECTION XIV.
TRIBAL ADMINISTRATIVE PROCEDURES ACT
Tulalip
Ordinance No. 83 shall not be applicable to this Ordinance or any Tulalip
Administrative Ordinances or Resolutions adopted or enacted pursuant
hereto.
ADOPTED by the Board of Directors of the Tulalip Tribes of Washington
at a regular/special meeting assembled on the ______ day of _________________,
2003, with a quorum present by a vote of _______ for and _______ against.
| |
TULALIP
TRIBES OF WASHINGTON
By:
Herman A. Williams, Jr.
Chairman, Board of Directors
|
|
ATTEST:
By:
Marie M. Zackuse, Secretary
|
|
| |
APPROVED
this ____ day of ______________, 2003. |
| |
SECRETARY
OF THE INTERIOR OF THE UNITED STATES |
| |
By: |
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