Redding Rancheria Ordinances
Last amended: 2001
WATER AND WASTEWATER SERVICE FEE AGREEMENT
THIS AGREEMENT, made and entered into this 21st day of November, 2000, by and between the TRIBAL COUNCIL OF THE REDDING RANCHERIA (Tribe), the governing body of a Federally recognized Indian Tribe, and the CITY OF REDDING (City), a general law municipal corporation organized and existing under and in compliance with the laws of the State of California:
1. Tribe is a Federally recognized Indian Tribe governed by a seven-member tribal council, exercising sovereign powers of self-government over the Rancheria land and its people. Tribe provides services to its members and Rancheria residents, some of which are provided by the City to its residents. Other services, such as health, education, and other services are outside the range of services provided by the City.
2. The Rancheria consists of 30.89 acres of land, some of which is owned by the United States in trust for Tribe or for individual tribal members and some of which is owned by individuals in fee simple.
3. City is a general law municipal corporation organized and existing under and in compliance with the laws of the State of California and is a provider of a broad range of services to its residents.
4. The Rancheria and the City of Redding are adjacent to each other.
5. The Rancheria is within the Redding sphere of influence as adopted by the Shasta County Local Agency Formation Commission.
6. The issue of providing services outside City is of crucial importance to the future of City and its long-range planning.
7. City has a policy of requiring annexation td City to obtain City services in order to ensure quality development and to avoid loss of sales tax, property tax, gas tax, franchise fees, development fees, and business license fees.
8. City feels urban development should have a broad range of urban services in order to minimize health and safety problems.
9. Tribe and City wish to enter into an Agreement that represents orderly urban development and efficiency in delivery of urban services, avoids duplication of services, and provides similar standards between the two jurisdictions.
10. Residents and operations in the Rancheria will use or cause to be used, directly or indirectly, many services of City for which there is not any direct cost recovery, including, but not limited to:
11. Tribal employment and economic development on the Rancheria provides direct and indirect economic benefits to the City of Redding. Wages earned on the reservation are spent in City businesses and generate tax revenues for the City. Customers of tribal businesses frequently come from out of the area and generate additional business and tax revenues for the City. These revenues help to off-set the City's cost of providing services to the Tribe and its residents. It is in the City's interest to support economic prosperity on the Rancheria in harmony with the economic prosperity of the greater Redding area.
12. Tribe, in order to improve the quality of services to its members and Rancheria residents, wants to purchase water and wastewater services from City and may wish to purchase other municipal services at such future time as it becomes financially feasible to do so. Obtaining such additional service not covered by this Agreement will require an amendment of this Agreement.
13. City is willing to provide water, wastewater, and other municipal services to the Rancheria provided that the development those services make possible complies with certain basic standards and the effects of that development, taking into account both the added costs and benefits to the City, do not adversely impact City and its residents.
14. The City owns and operates a wastewater treatment system for the treatment of domestic and industrial waste under the applicable state and federal law.
15. The City is required to implement and enforce a pretreatment program to control discharges from all industrial users of its wastewater system pursuant to requirements set out in 40 Code of Federal Regulations, Section 403, and California Government Code, Section 54739, as amended from time to time.
16. The City currently has no authority to control the discharge of domestic and industrial waste by facilities located in the unincorporated areas of the Redding Rancheria.
17. The Parties recognize that it is in their best interest, and that of their citizens and the citizens of this state to enter into an agreement requiring the Tribe to adopt a sewer use ordinance that has the same standards as the City's in regard to the discharge of waste into the City's wastewater treatment system.
18. The Parties recognize that an Agreement will provide the City with the required authority to enforce its obligations under the applicable federal and state law regarding the discharge of domestic and industrial waste by agreeing that the Tribe will adopt a sewer use ordinance that subjects domestic and industrial users located within the unincorporated area of the Redding Rancheria to the same required pretreatment controls and authorizes the City to implement and enforce said sewer use ordinance.
In consideration and reliance upon the recitals and the terms and conditions as further stated herein, the parties hereby agree as follows:
As used in this Agreement, the terms "Tribe" and "Rancheria" shall both pertain to the Tribal Council. The term "Rancheria" may also pertain to the geographic area of the Rancheria.
1. Term: This term of this Agreement shall be for 10 years from the effective date of the Agreement. At the end of 10 years, the Parties shall meet and confer about whether to continue the Agreement, modify the Agreement, or terminate the Agreement.
1. General. The City of Redding operates various utilities as enterprise operations, including electric, storm drain, wastewater, water, and solid waste. At present, it is financially feasible for Tribe to extend City water to the Rancheria and it is feasible at this time for City to permit the extension of wastewater services to the Rancheria. If it becomes feasible in the future to extend solid waste collection or electrical services to the Rancheria, the parties may amend this Agreement to do so upon such terms as they may agree. Upon the effective date of this Agreement, Tribe may commence extending a wastewater line to the Rancheria from the City of Redding Clear Creek Wastewater Treatment Facility. It will be the responsibility of the Tribe to obtain all permits and right-of-way encroachment on non-City property. If requested, the City will assist the Tribe in obtaining any permits and right-of-way encroachments wherever possible. It will also be the responsibility of Tribe to build all wastewater lines necessary to connect to the nearest existing and adequate wastewater line. It will also be the responsibility of the Tribe to
andmaintain water and all wastewater lines within the Rancheria and non-gravity wastewater lines outside the Rancheria and to bill its customers, tenants, or facilities accordingly.
2. Water. The Tribe shall construct and maintain its own internal water supply system for both domestic and fire flows. The City shall supply water to the Rancheria through a master meter located at the property line. The City will own, operate, and maintain all water facilities on the supply side of the master meter, including the meter and box. The City's responsibility for maintenance will end at the master meter. The supply of water will be subject to the following:
a. Maximum supply: Excluding water required to maintain sufficient flow for fire protection (which may only be used to respond to a fire on the Rancheria), the flow of water through the master meter shall not exceed a maximum monthly amount of 7800 hundred cubic feet ("ccf") and shall not exceed a total annual amount of 39350 ccf. This quantity shall be sufficient to provide water for existing development on the Rancheria, including the existing residences, the existing Win-River Casino Bingo facility, the existing Tribal Offices, the existing Tribal Head Start facility, the existing Tribal Community Center, ("existing uses") and the proposed Casino expansion and amphitheater. City may reduce the quantity of water available to the Rancheria under this Agreement only in a declared water emergency subject to duly adopted policies that apply equally to all customers of the City of Redding municipal water system who make the same use of water. If the Rancheria's water use exceeds the limits contained in this subparagraph, the parties shall met and confer in good faith to determine the reason for the excess usage. The maximum usage limits shall be adjusted to accommodate this excess usage, unless the excess use results from new uses or wasteful or unreasonable use of water by existing uses. If the parties cannot agree on the reasons for the excess water use or the amount of the adjustment, the dispute shall be subject to binding dispute resolution as provided herein. Exceeding the limits shall constitute grounds to terminate this Agreement for cause as provided in subparagraph G.
b. Design of off-site and on-site improvements: Should there be a need to improve the water main system, the Tribe will be responsible for on-site improvements and the City shall be responsible for off-site improvements.
(1) The off-site and on-site water mains shall be sufficient to handle expected service volumes of City of Redding Fire Department fire- flow requirements per the requirements of the Insurance Service Office.
(2) The Rancheria shall design any necessary modifications or improvements to the Rancheria water distribution system ("on-site facilities") to accommodate any increased water pressure or volume from the City-furnished supply as compared to the current Rancheria sources and to provide adequate pressure and volume for fire hydrants to serve the Rancheria.
(3) There shall not be any connection between the existing community well and the City's water system if the Rancheria well is not abandoned and removed. Any private wells that exist shall not be connected to any lines for which the City's system supplies water.
c. Construction and inspection:
(1) The City shall have the right to inspect and approve the construction of the on-site water distribution facilities, and Tribe shall ensure that the City's inspector has reasonable and timely access during construction to conduct any necessary inspections.
d. Fire hydrants and testing:
(1) At the time of any additional construction of structures on the Rancheria, additional fire hydrants, as required by the Uniform Fire Code, will be installed. In addition, a mutually agreeable testing agency shall annually test each fire hydrant to ensure its operation as part of the City's citywide fire- hydrant testing program. Reports will be submitted to City Public Works Department. Hydrants that fail to pass the test shall be replaced or made to meet Uniform Fire Code specifications within thirty (30) days. In the alternative, Tribe may contract with the City for this service by separate agreement.
(2) The costs for testing the lines and fire hydrants by the testing agency shall be paid for by Tribe.
(1) Following acceptance of the off-site improvements, the City of Redding will be responsible for operation and maintenance of those off-site improvements up to and including the master meter.
(2) Tribe will be responsible for the operation and maintenance of all on-site improvements, including the reduced pressure principle cross connection control device (RPP).
(3) The City of Redding will test the RPP annually. Tribe will be responsible for any needed repairs. The monthly bill shall include a fee for the annual test of the RPP device.
f. Provision of water service: The City shall provide water to the Rancheria in accordance with the terms of this Agreement.
g. Charges and payment: The City shall charge Tribe, and Tribe shall pay for water furnished pursuant to this Agreement according to the rates specified herein:
(1) Connection charges. Tribe shall pay connection charges based on the size of meter installed.
(2) City shall charge Tribe the City's applicable uniform water rates for water furnished under this Agreement at the City's current standard rate as shown in the City of Redding's Municipal Utilities Schedule of Rates as adopted by the City Council.
(3) Tribe shall maintain a service contract with the City Utility Customer Services. That contract must be signed by an official representative of Tribe. Tribe will be the party responsible for payment and shall make any required deposits.
(4) The City shall read the master meter monthly.
(5) Within five (5) days of the meter reading, the City shall send a bill containing the charges for the monthly billing period to Tribe, which Tribe shall pay within twenty-one (21) days. Any bill which remains unpaid after said twenty-one (21) days shall be considered delinquent and shall be subject to such penalties and interest as the City prescribes by duly adopted policy for all delinquent accounts.
(6) If the account remains delinquent, including the payment of all accrued penalties and interest, for more than forty-five (45) days, the City shall have the right to terminate service after providing such notice to Tribe as is required by law. The parties agree that the provision of water to Tribe is a commercial and not a residential service within the meaning of Division 5, Chapter 1, of the Public Utilities Code, commencing with Section 10007. The City shall restore service only upon payment in full of all delinquent amounts and any generally applicable reconnection fee. The City shall not terminate water service as a means of enforcing the terms of this Agreement, except for nonpayment as specified in this subsection, Section I, or upon termination of the Agreement as provided in Section G.
3. Wastewater. The Tribe and the City both agree that it is feasible for the City to provide wastewater services to the Rancheria. To do so, both Parties must comply with the Federal Clean Water Act and its amendments and the California Regional Water Quality Control Board requirements. The following conditions meet the requirements necessary to comply with these laws and regulations, so as to protect the City's wastewater system. Therefore, notwithstanding any other provisions of this Agreement, the Federal Clean Water Act and its amendments and the California Regional Water Quality Control Board requirements set forth within this Agreement cannot be waived by the City and should any conflicts occur with other provisions of this Agreement, these same Federal Clean Water Act and its amendments and the California Regional Water Quality Control Board requirements listed herein shall hold precedence over all other provisions of this Agreement. The wastewater system will provide sufficient wastewater service to the Rancheria for its current needs as well as future needs that the Tribe may require by the development of the Rancheria as described in subsection B(2)(a) of this Agreement including, but not limited to, the expansion of the Casino.
Notwithstanding, the Tribe shall be responsible for paying any additional connection fees and constructing additional lines that may be required as part of any expansion projects that increase the Rancheria's need for wastewater service.
a. The Tribe agrees to comply with all applicable portions of the City's sewer ordinance (R.M.C. ch 14.16) that are not modified by specific terms within this agreement. Said sewer ordinance is attached as Appendix A to this agreement. Further, the Tribe agrees to allow City to take all reasonable measures to enforce tribe's compliance with said ordinance.
b. Whenever the City amends its sewer use ordinance, it will forward a copy of the revisions to the Tribe and the Tribe will be responsible for compliance with any applicable amendments.
c. Prior to the issuance or approval of any project, development, conditional use permit, subdivision, planned development, building permit, or any other land use entitlement which may result in the need of a facility to connect the City's wastewater treatment system or may result in an increase in intensity or change of use of the wastewater system, the Tribe shall submit to the City for comment any such connection, increase, or change prior to Tribe approval of the project. The City may charge a reasonable fee to the Applicant for processing any request to connect to the City's wastewater treatment system or to increase the intensity of; or change, an existing use.
d. The City will perform such technical and administrative duties as necessary to implement and enforce the sewer ordinance relating to the Redding Rancheria's facilities connected to the City's wastewater treatment system. Examples of such administrative and technical duties include, but are not limited to, the following:
(1) establish a list of appropriate City personnel, phone, and FAX numbers for the designated Tribal personnel to contact and coordinate all applicable and necessary information pertaining to inspections, applicable fees for new construction, expansions, or changes in use for properties within Redding Rancheria's jurisdictional boundaries;
(2) develop an industrial waste survey;
(3) issue wastewater discharge permits to all industrial users required to obtain a permit;
(4) conduct industrial user inspections, sample monitoring, and analysis;
(5) take all appropriate enforcement action against wastewater users as outlined in the City's enforcement response plan and provided for in the sewer ordinance;
(6) perform and coordinate any other technical or administrative duties to include plan checking of wastewater pretreatment requirements the City deems appropriate.
In addition, the City will take emergency action to stop or prevent any discharge which presents or may present an imminent danger to the health or welfare of humans, which reasonably appears to threaten the environment, or which threatens to cause interference, pass through, or sludge contamination in the City's wastewater system.
e. The Tribe will cooperate with the City in establishing effective procedures between the staff of the Redding Rancheria and the City regarding the implementation of the terms of this Agreement. To implement such procedures the Tribe will:
(1) establish and maintain a list of phone and FAX numbers of personnel assigned the responsibility of working with designated City personnel for the purposes of fulfilling this Agreement;
(2) develop timely internal Tribal procedures to identify and provide notification to the City of applicable intra-agency projects;
(3) establish acceptable and timely procedures, as applicable, for intra-agency integration of City Wastewater Utility pretreatment requirements, City wastewater connection fees, flow monitoring data, and other applicable charges adopted by the City Council and the Tribe.
f. Discharge to the wastewater system of any type of rainwater or storm water, or waste or wastewater originating from trucked or pumped operations, such as but not limited to septic tank or sand, oil or grease interceptor wastes, or any waste from outside the jurisdictional boundaries of the Redding Rancheria, is prohibited.
h. The Tribe shall pay to the City for all wastewater users located within the Redding Rancheria, all applicable wastewater connection fees, capacity charges, monthly service charges, and any other fees, charges, and fines in accordance with the City's approved schedule of fees and charges as adopted from time to time by the City Council of the City of Redding.
i. The Parties will review and revise this Agreement to ensure compliance with the Federal Clean Water Act (42 U.S.C.§ 1251 et seq. And rules and regulations (see 40 C.F.R. § 403) issued hereunder, as necessary, but at least once every five (5) years on a date to be determined by the Parties. Failure of the Parties to do so shall not affect the validity of this Agreement.
j. The Parties acknowledge that, except as may be specifically identified herein, they are independent contractors under this Agreement. This Agreement gives no rights or benefits to anyone not named as a party to this Agreement and there are no third-party beneficiaries to this Agreement.
k. The Tribe, at the request of the City shall cooperate in the preparation of periodic reports requested by the City pertaining to this Section of this Agreement (3. Wastewater). The Tribe shall maintain all records relating to the subject matter of this Section of this Agreement (3. Wastewater) and shall make such records available to City for its purposes.
l. Interpretation of and resolution of disputes under this agreement shall follow the process listed in Section H. "Binding Dispute Resolution", of this Agreement. However, the Federal Clean Water Act and its amendments and the California Regional Water Quality Control Board requirements set forth within this Agreement cannot be waived by the City and should any conflicts occur with other provisions of this Agreement, these same Federal Clean Water Act and its amendments and the California Regional Water Quality Control Board requirements listed herein shall hold precedence over all other provisions of this Agreement.
n. This Agreement, as written, forms a multi-jurisdictional agreement between the Parties containing all the required elements under the federal Clean Water Act, its amendments, and agency guidance documents. As such, this Agreement supersedes whatever oral or written understanding the Parties may have had prior to the execution of this Agreement. This Agreement shall not be altered, amended, or modified except by a writing signed by the City and the Tribe.
(1) The Rancheria will be responsible for contracting with a State of California licensed construction company for constructing a wastewater line to connect the Redding Rancheria to the City of Redding's Regional Wastewater System. The City shall have the right to approve the company as well as the plans and specifications.
(2) The connection will be constructed according to the recently developed "Alternative 3C" proposed in the PACE "Cost Summary for Connection to and Disposal of Wastewater to the City of Redding" dated August 11, 2000, created for the Redding Rancheria by PACE Civil, Inc., and attached as Appendix B to this agreement. Generally, it involves installing a lift station at the Casino and then a force main that can either be directed to the Rancheria emergency holding tank and leach field, or east under the Highway 273 overpass of Clear Creek and the Union Pacific railroad, then south along Eastside Road and finally east along the City property line to the City Clear Creek Treatment Plant Headworks facility. The details of this installation will be itemized during the final design by the Rancheria Engineer and must be approved by the City. Included in this design will be an odor control system at the Rancheria lift station and a permanently installed magnetic flow meter, refrigerated composite sampler installation, and a lockable manual shutoff valve on the end of the force main at the Clear Creek Headworks facility which are electrically interfaced with the Clear Creek Plant control system. Also, included in the specifications will be requirements for training of the Rancheria maintenance staff by the equipment manufacturer and the design engineer on proper operation and maintenance of these facilities.
To the extent, for some reason, the Tribe is unable to practically construct the connection under Alternative 3C, the City and Tribe will meet and confer over the effects of connecting to the wastewater system under a different option.
(3) In lieu of paying any of the costs associated with the Tribe connecting to the City's wastewater system, the City will credit up to $725,600 of the tribe's payments required under Section E of this agreement. These credits will begin effective the first quarter payment of the year 2001 and will continue until either the tribe's full costs of connecting to the system or $725,600 has been credited, whichever comes first. The Tribe, upon completion of the wastewater connection project, will submit to the City evidence of the cost of such connection.
(1) The wastewater facilities on the Rancheria and the entire force main to the City Clerk Creek Plant Headworks facility will be owned, maintained, and operated by the Rancheria. The Rancheria will operate and maintain these facilities according to the manufacturer's and design engineer's recommendations and in accordance with the Redding Municipal Code, Chapter 14.16 - Sewers.
(2) The flow meter, sampler, and shutoff valve assemblies that are on the end of the force main, as noted in subsection B(3)(s)(2) above, will be owned, maintained, and operated by the City.
q. Provision of Service:
(1) The City shall provide wastewater sewer service to the Rancheria in accordance with the terms of this Agreement.
(2) Interruption of service due may occur when the lift station is taken out of service for maintenance or as provided elsewhere in this agreement or as noted in subsection B(3)(q)(3) below.
(3) Interruption of service may occur if the City must take emergency action to stop or prevent any discharge which presents or may present an imminent danger to the health or welfare of humans, which reasonably appears to threaten the environment, or which threatens to cause interference, pass through, or sludge contamination in the City Wastewater system. If the Clear Creek Wastewater Treatment Plant were to go into alarm, warranting such an interruption of service, the Tribe contact person(s) previously established for such notification purposes, will be notified of the pending interruption of wastewater service and to prepare to divert the Rancheria force main to the emergency holding tank and leach field disposal system.
r. Charges and Payments: The City shall charge the Tribe and the Tribe shall pay for all wastewater sewer service furnished pursuant to this Agreement according to the rates specified herein:
(1) Connection charges. Tribe shall pay connection charges based on the projected capacity needed as itemized in a project report that is prepared by a California Registered Professional Engineer. The August 11,2000, PACE report itemizes an estimated capacity needed initially of 121.5 HEs (household equivalents). The HE capacity will be multiplied by the full wastewater connection fee in effect at the time of project approval and based on the City's Wastewater Connection Fees Schedule as adopted by the City Council.
(2) Tribe shall include wastewater service in the service contract maintained with the City under subsection B(2)(g)(3) of this agreement for the water service.
(3) The City shall send a bill every month to the Tribe based on the HEs utilized as determined by the magnetic flow meter and sampler installed at the Clear Creek Plant Headworks Facility under this Agreement and similar to the billing arrangement for other City Significant Industrial Users.
(4) The Tribe shall pay the monthly wastewater service bill with the same conditions as listed in subsection B(2)(g)(5) of this Agreement and with the delinquent penalties as listed subsection B(2)(g)(6) of this Agreement.
The Redding Rancheria will purchase from the City of Redding the parcel of land described as APN# 050-010-01 for $20,000. The Tribe will use the land for parking. If there is any other proposed use, the Tribe will confer with the City for approval.
The City will retain an easement on said property for the future extension of Eastside Road to be properly recorded on the Deed.
D. Uniform Code Requirements
The Tribe will provide to the City a copy of the Resolution from the Tribal Council certifying that the Redding Rancheria has adopted and complies with each of the Uniform Building Codes adopted by the International Conference of Building Officials (i.e. Building, Electrical, Plumbing, Fire, etc.) and all of its applicable provisions.
E. Payment for City Services
1. Payment for City services outlined in this Agreement will be $200,000 annually. The City will allocate the funds as it determines.
2. The Tribe shall pay the City $50,000 per quarter. The City will bill the Tribe and subsequently the Tribe will remit the payment to the City within 20 days.
3. If the City obtains money from the State of California from the funds set-aside from casino revenues, the City will meet and confer with the Tribe to determine whether it is appropriate to offset any amounts that it receives from the annual payment from the Tribe. If the Parties are unable to agree on any proposed adjustment, either Party may submit the dispute to binding dispute resolution as provided for elsewhere in this Agreement. The Tribe will make every effort to facilitate and provide information to the City in order that the City may apply for the funds.
4. This payment is not intended to cover direct fees for services such as water service, wastewater service, or sign-ups for City fee-based recreation programs.
5. Late Fees:
In the event any payment required by this Agreement or service contract is not received by the City on or before the applicable date, interest shall be charged at one and one-half percent (1.5%) per month from the due date.
F. Security for Performance
Tribe will be required to keep on deposit the identical amount of dollars that other businesses in the City of Redding are required. The City will return any excess amounts that the Tribe has on deposit including Letters of Credit that the Tribe provided under a previous Agreement.
1. Duty to Replenish. If City uses security furnished under paragraphs 1 or 2 to cure a default by Tribe, Tribe must restore the security to the full amount required by this Agreement within thirty (30) days of the withdrawal. Any failure to restore such security shall furnish City with grounds to terminate this Agreement for cause. If a dispute arises out of City's use of the security, the dispute shall be resolved by binding dispute resolution as provided in paragraph L.
G. Termination of Agreement
1. Voluntary Termination. This Agreement may be voluntarily terminated by Tribe by giving City six (6) months written notice of termination. Any such termination will not apply to the Payment for City Services as required under Section E of this Agreement for the first ten (10) years, unless by mutual agreement. City may voluntarily terminate this Agreement provided that the City gives reasonable notice (in no case less than six (6) months) to the Tribe to enable them to find a reasonable alternative source of water and/or wastewater. If the Tribe cannot find a reasonable alternative source of water and wastewater then the City may only terminate this Agreement for cause set forth below. Any disagreement over what is reasonable under this provision shall be resolved by binding dispute resolution as provided elsewhere in this agreement.
2. Termination for Cause. This Agreement may be terminated by either party for cause as provided for herein. Cause, within the meaning of this Agreement, shall include a breach of the Agreement, including the breach of any covenant contained in the Agreement, anticipatory breach or repudiation of the Agreement, negligent performance of any terms or covenants in the Agreement required to be performed by either party, or failure of consideration, including the legal inability by either party to perform any of the terms, conditions, or covenants required by this Agreement to be performed.
H. Binding Dispute Resolution
1. Notice of Intent to Terminate. Any act, failure to act, or event described in paragraph k as grounds for termination for cause shall constitute an event of default. Whenever a party to this Agreement determines that an act or failure to act of the other party or other event constitutes a default of this Agreement, it shall provide written notice thereof to the defaulting party within thirty (30) days of the act, failure to act, or event which constitutes the default. The notice shall describe the default and the action or actions which must be taken or accomplished by the defaulting party to cure the default. Failure of the defaulting party to cure the default or to demand binding dispute resolution as provided for herein within said thirty- (30) day period shall entitle the non-defaulting party to exercise the remedies set forth below.
2. Binding Dispute Resolution. Prior to the expiration of the thirty- (30) day notice of default, the party receiving the notice of default may initiate binding dispute resolution. Binding dispute resolution may only be initiated in the good faith belief that a default has not occurred. The Notice of Binding Dispute Resolution must describe the dispute which is to be submitted for resolution, the proposed remedy of the dispute, and the name, address, and phone number of the party's nominee (arbitrator) to Dispute Resolution Hearing Panel. Within ten (10) days of receiving notice initiating dispute resolution, the party receiving notice shall submit the name, address, and phone number of its nominee to the Hearing Panel to the other party. Within ten (10) days thereafter, the two nominees shall meet and/or consult and select a third panel member, which shall complete the formation of the hearing panel. Each party and its nominee shall endeavor to appoint members of the Panel who have expertise in the subject matter of the dispute. Within ten (10) days of the Notice of Binding dispute Resolution, the parties may agree to a single arbitrator as a less costly alternative to the Hearing Panel. All references to the Hearing panel shall include a single arbitrator, if the parties so agree.
3. Procedure of Hearing Panel. The Hearing Panel shall establish such rules of procedure as it deems necessary to resolve the dispute provided that such rules must provide for a hearing at which each party may be represented by legal counsel and at which each party is entitled to present written and oral evidence and legal argument in support of its position. The Panel must hold the hearing and issue its written decision within forty-five (45) days from the date the third panel member is selected and agrees in writing to serve on the Panel. The decision of the Hearing Panel shall be final and binding on the parties. The scope of the decision shall not exceed the remedies provided for herein.
4. Costs of Dispute Resolution. Each party shall bear its own costs and attorneys fees and shall each pay one-half (1/2) of the cost of the Hearing Panel, including the fees charged by the members of the Panel, provided that, if the Panel determines that a default has occurred and that the defaulting party did not initiate binding dispute resolution in good faith, the Panel may direct that all litigation costs, including the cost of the Hearing Panel and fees charged by the panelists, be paid by the defaulting party.
I. Remedies on Default
After final determination that a default has occurred, the parties shall have the following remedies:
1. Remedies of City on Default by Tribe. Recognizing the sovereign status of Tribe, City's sole remedy for default by Tribe is to terminate this Agreement and shut off all or any portion of water or wastewater service to Tribe. Notice that the Agreement is terminated and that water delivery or wastewater service is to be shut off or curtailed shall be given in writing and shall include the date of termination or curtailment of water delivery which shall be not less than thirty (30) days from the date of the written notice; provided that if Binding Resolution is timely requested by the Tribe, the City shall not terminate water or wastewater service, unless authorized to do so by order of the Hearing Panel. City may elect to waive a default and not terminate the Agreement. The waiver by City of any default shall not prevent City from exercising its right to terminate this Agreement upon determination that a subsequent default has occurred.
2. Remedies of Tribe in Event of Default by City.
a. Default Not Involving Delivery of Water or Wastewater. In the event of a default by City not involving the delivery of water or wastewater, Tribe shall be entitled to reimbursement for the damages proximately arising out of the default. The damages, to be determined in binding dispute resolution, shall be offset against any fees or payments required to be made by Tribe to City in accordance with the terms of this Agreement.
b. Default Involving Delivery of Water or Wastewater. In the event City, without justification, curtails or shuts off the delivery of water or wastewater service to Tribe, Tribe may either (1) terminate this Agreement and be entitled to an award of damages by the Dispute Resolution Hearing Panel which are incurred by Tribe by reason of the default of City, or (2) be entitled to specific performance of the provisions of the Agreement requiring the delivery of water. A determination by the Hearing Panel in binding dispute resolution that Tribe is entitled to specific performance may be specifically enforced by a court of competent jurisdiction.
Whenever notice, payment or other communication is required or permitted under this Agreement, it shall be deemed to have been given and received when personally delivered or when deposited in the United States mail with property first class postage affixed thereto and addressed as follows:
c/o Tribal Chairperson
2000 Rancheria Road
Redding, CA 96001
City of Redding
777 Cypress Avenue
Redding, CA 96001
Either party may change the address to which notice shall be given by providing notice of the address change as provided in this section.
K. Modification of Agreement
Either party may, from time to time, request changes in the terms of this Agreement. Such changes must be incorporated in written amendments to this Agreement which have been approved in the same manner as the original agreement. No other purported change in the terms of this Agreement shall be effective or binding on the parties.
L. No Severability
This Agreement is to be construed in its entirety, and no provision can be severed from the Agreement without the consent of both parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, either party may declare a default and obtain an appropriate remedy through binding dispute resolution.
This Agreement contains the entire agreement between the parties and supersedes all prior and contemporaneous oral and written agreements, understandings, and representations among the parties.
No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute a waiver of any other provisions, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
O. Paragraph Headings
The paragraph headings contained herein are for convenience and reference only and are not intended to define or limit the scope of this Agreement.
P. Duplicate Originals
This Agreement may be executed in one or more duplicate originals bearing the original signature of both parties and when so executed any such duplicate original shall be admissible as proof of the existence and terms of the Agreement between the parties.
This Agreement is not transferable to another party. It cannot be sold, transferred, leased, assigned, or disposed of; including, but not limited to, forced or voluntary sale; merger consolidation; receivership; or other means without the prior consent of the City and then under such conditions as the City may establish to ensure continued service throughout the Rancheria and proper use of City services.
Tribe shall promptly notify the City of any actual or proposed change in the sovereign structure of the Rancheria under Federal statute or treaty on the right of Tribe to manage properties within the Rancheria and any restriction of the rights of Tribe to adopt laws for or enter agreements on behalf of the Rancheria, its residents, and property owners.
This Agreement only pertains to land within the Rancheria and does not convey any right for Tribe to operate or maintain any wastewater, water, or electrical service outside the boundaries of the Rancheria within the City of Redding nor to resell to any party other than within the boundaries of the Rancheria as of June 1, 1995.
R. Compliance with State and Federal Laws
Notwithstanding this Agreement, the City and Tribal Council are governed by the regulations of the State, Federal Government, treaties, or administrative agencies, thereof. Thus, if a law or regulation is passed that prohibits a party from performing under this Agreement, the affected party shall notify the other party as soon as possible following knowledge thereof. If a material provision of this Agreement is affected by any subsequent action of the State or Federal Government, the parties, upon mutual consent, shall have the right to continue to give or receive services to prevent public health or safety problems.
S. Reservation of Legislative Authority
The entering into the Agreement by the City and Tribe shall not constitute a waiver or bar to the exercise of any government right or power of the City or Tribe except as provided herein.
T. Acquisition of Facilities
In the event Tribe chooses to not operate and maintain water or wastewater facilities within the Rancheria that are connected to City lines and such infrastructure has been developed, an irrevocable offer of dedication of said facilities along with appropriate easements shall be made to the City. The City is not obligated to accept such facilities unless they meet City specifications, including annexation. In the event the offer of dedication is not made or accepted, the City may discontinue service to the Rancheria or require that a special district under the control of the City Council be formed to operate the facilities for the residents and property owners of the Rancheria.
Tribe agrees that at all times during the existence of this Agreement, it will maintain in force at its own expense a general comprehensive liability insurance policy in protection of the City, its boards, commission, officers, agents, and employees in a company authorized to do business in the State to protect the City and such persons against liability for loss or charges for personal injury, death, or property changes accused by the operator of Tribe of utilities or road work accompanied by this Agreement. The minimum liability limits of $500,000 for personal injury or death of any one person and $1,000,000 for personal injury of two or more persons in any occurrence and $500,000 for change to property resulting from one occurrence shall apply. Said minimum rates are to be adjusted upwards to prevent devaluation of the protection value of the dollars in the amounts listed above.
V. Performance Bond
When connecting to the City water or wastewater system or doing public street or utility work outside the limits of the Rancheria as approved by the City, Tribe shall provide a performance bond or bonds in favor of the City with good and sufficient surety approved by the City Attorney in an amount as necessary to complete the work. The amount of the bond may be reduced when any construction that is covered by the bond is completed and accepted.
W. Right to Inspect
The City shall have the right to inspect all waterlines and wastewater lines and to make such tests as it finds necessary to ensure compliance with this Agreement and any Federal or State mandates placed upon the City and its operation of utility systems.
X. Right of Intervention
The City shall have the right to intervene in any suit or proceeding concerning this Agreement with Tribe and the right of Tribe to operate a water utility and wastewater system within the Rancheria in a manner that complies with this Agreement which suit or proceeding could affect the City's wastewater system, water system, or delivery of water.
Y. Prohibition Against Discrimination
Within the Rancheria, Tribe shall not deny service or access nor otherwise discriminate against people seeking to connect to tribe's wastewater, water, or electric lines on the basis of race, color, religion, natural origin, age, or sex.
Z. Effective Date
The effective date of this Agreement shall be the date on which the Agreement is executed by the authorized representative of City.
IN WITNESS WHEREOF the parties hereto have set their hands and seals on the dates set forth below.
|CITY OF REDDING|
ROBERT C. ANDERSON, Mayor
Connie Strohmayer, City Clerk
W. Leonard Wingate, City Attorney
|ATTEST:||TRIBAL COUNCIL OF THE REDDING RANCHERIA|
Barbara Murphy, Chief Executive Officer
Leon Benner, Chairperson
|Date of Execution: 11-14-00|
Tracy Edwards, Tribal Attorney
RANCHERIA TRIBAL COUNCIL RESOLUTION
|SUBJECT:||Approval of Water and Wastewater Service Fee Agreement with the City of Redding and authorization of Tribal Council Chairman to sign the Agreement.|
|WHEREAS:||A Water and Wastewater Service Fee Agreement has been negotiated between Redding Rancheria Tribal and City of Redding Representatives, and;|
|WHEREAS:||The Agreement has been reviewed and approved by the Tribal Attorney;|
THEREFORE BE IT RESOLVED, THAT: The Redding Rancheria Tribal Council hereby approves the Water and Wastewater Service Fee Agreement and authorizes the Tribal Council Chairman to sign the Agreement and all related documents.
The foregoing Resolution was adopted by a vote of 6 for, 0 against and 0 abstentions, at a duly called meeting of the Redding Rancheria Tribal Council, at which a quorum was present, this 6th day of November, 2000.
Chairman, Redding Rancheria[Leon Benner]
Secretary, Redding Rancheria [Hope Wilkes]