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HomeMy WebLinkAboutReso 95-163 - Approve entering into a "services, Developement, & Government to go Government agreement between COR & Tribal Council of the Redding Rancheria .� " � � RESOLUTION NO. 95-163 A RESOLUTION OF T�� CITY COUNCIL OF THE CITY OF REDDING APPROVING ENTERING INTO A "SERVICES, DEVELOPMENT, AND GOVERNMENT-TO-GOVERNMENT AGREEMENT" BETWEEN THE CITY OF REDDING AND THE TRIBAL COUNCIL OF THE REDDING RANCHERIA, AND AUTHORIZING THE MAYOR TO SIGN THE NECESSARY DOCUMENTATION IN CONNECTION THEREWITH. WHEREAS, the Tribal Council of the Redding Rancheria (Tribe) is a federally-recognized tribal council, providing a broad range of services to its members and Rancheria residents; and � WHEREAS, the Rancheria consists of 30.89 acres of land; and WHEREAS, the Rancheria and the City of Redding are adjacent to each other; and the issue of providing services outside the City is of crucial importance to the future of the City and its long-range planning; and WHEREAS, the Rancheria operations and its residents will use or cause to be used services of the City, for which there is no direct-cost recovery; and WHEREAS, the City is willing to provide water and other municipal services to the Rancheria, provided that the development made possible by those services will comply with certain basic standards; and that the effects of the development—taking into account both the added costs and benefits to the City—do not adversely impact the City and its residents; and WHEREAS, the Tribe and the City wish to enter into an agreement that represents orderly urban development and efficiency in the delivery of urban services; avoids the duplication of services; and provides similar standards in the two jurisdictions; NOW, THEREFORE, IT IS HEREBY RESOLVED that the City Council of the City of �, Redding hereby approves entering into the Services, Development, and Government-to- � Government Agreement between the City of Redding and the Tribal Council of the Redding � Rancheria, a true copy of which is attached hereto and made a part hereof. � �. G� � � BE IT FURTI3ER RESOLVED that the Mayor is authorized to sign said agreement and ancillary documentation in connection therewith; and the City Clerk is directed to attest the signature of the Mayor and to impress the official seal of the City thereto. I HEREBY CERTIFY that the foregoing Resolution was introduced, read, and adopted at a regular meeting of the City Council on the 18th day of July, 1995, by the following vote: AYES: COUNCIL MEMBERS: P• Anderson, R. Anderson, McGeorge and Murray NOES: COUNCIL MEMBERS: Kehoe ABSENT: COUNCIL MEMBERS: None ABSTAIN: COUNCIL MEMBERS: None ��� DAVID A. HOE, May ATTEST: `� V CONNIE STRO YER, City Clerk FORM APPR VED: y L�2�1'��,✓� � W. LEONARD W ' ATE, City Attorney 2 • � � • SERV'ICES, DEVELOPMENT, AND GOVERNME]�TT TO GOVERNMENT AGREEMEI�TT THIS AGREEMENT, made ��nd entered into this day of , 1995, by and between t.he 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: R E C I T A L S 1 . Tribe is a Federa.11y 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 a broad range of 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 to 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 s:\djr\agrmts95\redding5.cty 1 July 13, 1995 , � � 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 services of City for which there is not any direct cost recovery, including, but not limited to : Police services Fire response EMT services Parks maintenance and development Recreation programs Traffic-signal maintenance and traffic control Emergency dispatch Streetlights Long-term, land-use and traffic planning 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 service 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 and other municipal services to the Rancheria, provided that the development those services make possible complies with certain basic standards and that 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 . AGREEMENT In consideration of and reliance upon the recitals and the terms and conditions as further stated herein, the parties hereby agree as follows : s:\djr\agrmts95\redding5.cty 2 July 13, 1995 . � � A. General As used in this Agreement, the terms "Tribe" and "Rancheria" shall both refer to the Tribal Council . The term "Rancheria" may also refer to the geographic area of the Rancheria. B. Utilities 1. General. The City of Redding operates various utilities as enterprise operations, including electric, storm drain, sewer, water, and solid waste . At present, it is financially feasible for Tribe to extend City water to the Rancheria. If it becomes feasible in the future to extend � sewer, 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 connect the Rancheria to the City water system as further provided herein. It will be the responsibility of Tribe to build and maintain water lines within the Rancheria and to bill its customers, tenants, or facilities accordingly. Until such time as the Rancheria permanently interconnects with the City water main, the City shall continue to provide water to the Rancheria through the existing temporary connection provided, however, that a permanent connection shall be made within six months of the effective date of this Agreement . Failure of the Tribe to make permanent connection within said six months shall furnish grounds for termination of the agreement for cause as provided in paragraph K. 2 . Water. To obtain permanent City water services, 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 2200 hundred cubic feet ( "ccf" ) and shall not exceed a total annual amount of 15, 300 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 s:\djr\agrmts95\redding5.cty 3 July 13, 1995 � � existing and proposed Tribal Offices, the Tribal Head Start facility, the proposed Tribal Community Center, and the proposed mini-mart ( "existing uses" ) . 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 meet 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 a 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 adj ustment, the dispute shall be subject to binding dispute resolution as provided in paragraph L. If the maximum limits on water use are not adjusted as provided herein, exceeding the limits shall „ constitute grounds to terminate this Agreement for cause as provided in subparagraph K. b. Water supply: The supply of water to the Rancheria by the City is subject to approval of an amendment by the State or Federal Government of the City' s water ..- contract service area, if required under the terms of Federal or State law. Immediately upon the effective date of this Agreement, City shall notify Tribe of the legal requirements, if any, which require modification of the City' s water contract service area and of the procedures required to obtain such approval . City shall take all steps required to obtain such approval within the least amount of time that is administratively feasible . In the event the Federal government denies an amendment to the City' s water service area, this Agreement shall become null and void. c . Design of off-site and on-site improvements: Tribe shall develop plans and specifications for interconnecting the City' s water main, currently at Canyon Road, and Tribe' s water system. The plans shall be in accordance with City of Redding standards and be approved in writing by the Director of Public Works . The design shall incorporate the following: (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 s:\djr\agrmts95\redding5.cty July 13, 1995 4 � � requirements per the requirements of the Insurance Service Office . (2) Tribe shall obtain necessary encroachment permits for the proposed "off-site waterline facilities . " (3) Tribe shall install an approved Reduced Pressure Principal (RPP) cross connection control device at the Rancheria site of the master meter. (4) Tribe shall install a compound meter with a detector check capable of supplying both fire flows and domestic flows . (5) 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. (6) 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. d. Construction and inspection: (1) At no cost to the City, Tribe shall arrange for the construction of the on-site and off-site water facilities and complete the construction within six months of the effective date of this Agreement subject to limits by weather, war, acts of God, or other forces over which Tribe has no control . (2) The City shall have the right to inspect and approve the construction of the off-site facilities and to inspect on-site facilities, and Tribe shall ensure that the City' s inspector has reasonable and timely access during construction to conduct any necessary inspections . (3) All City of Redding costs associated with the design-review of on and off-site facilities and construction inspections of off-site facilities s:\djr\agrmts95\redding5.cty 5 July 13, 1995 � � shall be at the expense of Tribe . Upon submission of the plans and specifications, Tribe shall deposit one percent (lo) of the estimated water system improvement costs for the plan review. At the commencement of construction, Tribe shall deposit three percent (30) of the estimated improvement costs of the off-site facilities for City inspection services . At the completion of the project, if the deposit is not adequate to cover the cost of review and inspection, Tribe will reimburse the City the difference subject to reasonable justification. If at the completion of the project there is a balance remaining, the City will return the balance to Tribe . The City shall not charge more than its actual costs for inspection services . Within thirty (30) working days of completing such services, City will provide Tribe with a billing which details how City computed its cost of inspection services . (4) On- or off-site water improvements shall be constructed to meet City of Redding standards . Before construction, the City of Redding ...m Department of Public Works and Fire Department shall review and approve the plans . No amendments, changes, or additions to the plans shall be made without first obtaining the approval of the City. (5) Tribe will develop and maintain as-built drawings for its water- distribution and fire- suppression system within the Rancheria. A copy of said drawings or any changes to them shall be filed with the City of Redding Public Works Department and California Department of Forestry within sixty (60) days after the Rancheria system is connected to the City' s water main or of the completion of any changes in the Rancheria system. e . Fire hydrants and testing: (1) At the time the water main is installed, all fire hydrants in the Rancheria shall be replaced to meet City of Redding specifications . Additional hydrants as necessary will be installed to provide one (1) fire hydrant for each 300 feet of length of Rancheria Road. (2) A mutually agreeable testing agency shall annually test each fire hydrant to ensure its s:\djr\agrmts95\redding5.cty July 13, 1995 6 � � 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 City specifications within thirty (30) days . In the alternative, Tribe may contract with the City for this service by separate agreement . (3) The costs for testing the lines and fire hydrants by the testing agency shall be paid for by Tribe . f . Maintenance: (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 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 . g. Provision of water service: Upon satisfactory completion of the off-site and on-site facilities, the City shall immediately commence the provision of water to the Rancheria in accordance with the terms of this Agreement . h. 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 . Prior to receiving permanent water service, Tribe shall pay connection charges based on the size of ineter installed. (2) City shall charge Tribe for water furnished under this Agreement at the City' s standard rate as shown in the City of Redding' s Municipal Utilities Schedule of Rates as adopted by the City Council . The current rate Schedule of s:\djr\agrmts95\redding5.cty ,7 July 13, 1995 � � . Rates is attached here to as Exhibit A. (3) Tribe shall fill out 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 l, 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 subdivision (6) , or upon termination of the Agreement as provided in Section K. C. Roads All roads, alleys, or driveways, within the boundaries of the Rancheria shall be considered private streets and shall not be maintained by City. Within two (2) years of the effective date of this Agreement, Tribe shall upgrade Rancheria Road within the Rancheria to the following minimum standards to accommodate vehicles and pedestrians . Two paved lanes, each a minimum of twelve (12) feet in width, and curb and gutter on both sides equal to or better than City standards for renovation and reconstruction of existing roads . A four- (4) foot-wide sidewalk and s:\djr\agrmts95\redding5.cty 8 July 13, 1995 � • streetlights will be installed along the south side of the road within the Rancheria. The north side shall have a sidewalk to the Casino parking boundary as described in the plans attached hereto as Exhibit B and incorporated herein by reference . All road construction shall be designed to federal standards . If off-site easements are required to discharge storm water from the street or parking areas into Clear Creek, it shall be the responsibility of the Rancheria to obtain such storm-drain easements and any storm water discharge permits as may be legally required. Tribal Council shall be responsible for the establishment and enforcement of any parking or speed limit restrictions within the Rancheria. Within three (3) months of the effective date of this Agreement, Tribe shall contribute $25, 000 towards the installation of a traffic signal at the intersection of Canyon Road and Highway 273 as designed by California Department of Transportation Engineering Department and approved by City. This contribution shall not be refundable and is intended to mitigate the traffic impacts of the casino. If the Tribe owns or acquires through voluntary purchase sufficient land, when it improves Rancheria Road, the Tribe will construct a turnaround at an appropriate location on the rancheria big enough to permit a fire truck to turn around without having to use a private driveway. In addition, Tribe, within 12 months of the effective date of this Agreement, shall improve Rancheria Road between the eastern edge of the Rancheria and Canyon Road to meet the City' s standard for a commercial street, including curb and gutter on both sides and sidewalk and streetlights on the west side at the intersection with Canyon Road and the entrance to the Rancheria. The improvements within City right-of-way shall meet City of Redding specifications and shall be dedicated to City after completion of improvements . A 30-foot-radius corner rounding shall be installed on the inside curve at the entrance to the Rancheria. D. Fire Safety Within one (1) month of the effective date of this Agreement, the Fire Marshal and Building Official shall inspect the buildings or structures operated by Tribe for compliance with the 1991 Uniform Fire Code and Chapters 31 (accessiblity) , 33 (exits) , and 38 (fire extinguishing systems) and Appendix l, Division 1 (life -safety requirements for existing buildings other than high-rise buildings) of the 1991 Uniform Building Code provisions, relating to fire safety. Within one month of the inspection, a report shall be provided to Tribe on what is s:\djr\agrmts95\redding5.cty July 13, 1995 9 � � � required for the facilities to comply with these requirements . Tribe will then have one hundred twenty (120) days to have the facilities meet these codes, or such additional time as may be required in the case of reconstruction, if any, requiring structural changes . If the parties cannot agree on a reasonable time to comply in the case of structural changes, the dispute shall be submitted to binding dispute resolution as provided in Paragraph L. E. Uniform Code Requirements 1 . In undertaking any new construction, the Tribe will comply with the Uniform Building, Electrical, Plumbing, Mechanical and Fire Codes in effect in the City (collectively, "Building Codes" ) , and the amendments to those codes contained in Title 16, Buildings and Construction of the Redding Municipal Code as it reads on the effective date of this agreement . City shall provide Tribe with copies of any future locally adopted exceptions or amendments to the Uniform Codes adopted by the City, which Tribe shall have discretion to adopt or reject . Nothing herein shall prevent Tribe from adopting amendments to the Building Codes based on unique geographical, geologic, climatic or cultural conditions on the Rancheria, provided Tribe gives City not less than thirty (30) days' prior written notice before the changes are adopted. 2 . Tribe shall contract with City for building inspection and plan check services . The City shall charge Tribe the same fee for such services it charges for similar services within the City. Tribe shall submit all plans for construction by Tribe to the City Building Official for review and a determination of uniform code compliance within fifteen (15) days of the submission. Failure of the Building Official to approve or disapprove the plans in writing within said fifteen (15) days shall excuse the Tribe from further compliance with this subdivision as to the building for which the plans were prepared. The Building Official shall file his or her inspection reports with Tribe and shall issue a Notice of Completion upon completion of construction in accordance with the approved plan. F. Additional Connections Except as provided in B 2 (a) , no new uses shall use water furnished under this Agreement without the written approval of the City Council . The intent of the Agreement is to provide water for the uses that exist on the Rancheria on June l, 1995 , and to allow for construction of the following: s:\djr\agrmts95\redding5.cty 1 0 July 13, 1995 � . 1 . Removal of the temporary tribal offices and construction of permanent tribal offices not exceeding 12 , 000 square feet . 2 . Construction of a permanent head-start center not exceeding 6500 square feet . 3 . Construction of a tribal community center not used for gaming purposes and which does not exceed 5, 900 square feet . 4 . Construction of a mini-mart that does not exceed 3 , 000 square feet . O This additional development on the Rancheria is subject to the provisions of paragraph E. G. In-Lieu Payment for Direct and Indirect City Services l . Payment for City services that service the Rancheria, including commercial operations, or are used by its residents and customers shall be $75, 000 for the year beginning January 1, 1996 and ending on December 31, 1996 . In the second year, beginning on January l, 1997, the payment shall increase to $200 , 000 ( "the base year" ) . Payments shall be due and payable in four equal installments in each calendar year not later than the following dates : January 1 April 1 July 1 October 1 � The first payment of $18, 750 shall be due January l, 1996 . 2 . The Rancheria will assume responsibility for the maintenance of the road at the entrance to the Rancheria that is currently part of the City maintained road system; provided that the City conveys all its right, title and interest in said road to the Tribe within one hundred twenty (120) days from the effective date of this Agreement . 3 . Every three years on the anniversary date of this Agreement, Tribe and City shall meet to discuss whether to raise, lower, or maintain the same in-lieu payment . Any change shall be based on a change in the estimated cost of services provided directly or indirectly to the Rancheria and the tax benefits to the City of economic activity on the Rancheria. If, at any time, gaming at the Win River Casino Bingo is reduced or curtailed, the parties shall s:\djr\agrmts95\redding5.cty 1 1 Suly 13, 1995 , � � meet and confer on a reduction in the in lieu fee . If the parties are unable to reach agreement, either party may submit the dispute to binding dispute resolution under paragraph L. 4 . If the parties do not agree to changing in-lieu payment and the Hearing Panel does not otherwise order, the payment shall be increased by the Consumer Price Index' s annual percent changes for the western area of the United States, as published by the Bureau of Labor Statistics for urban customers, in cities over 50, 000 persons ( "CPI Index" ) . The annual payment shall be adjusted on the third anniversary date of this Agreement and each anniversary date thereafter by an amount computed by multiplying the base year fee by the CPI index for the year preceding the year in which such adjustment is calculated. If the Tribe enters a Class III compact with the State of California which requires the Tribe to pay fees to or for the benefit of the City, the Tribe and the City shall meet and confer on an adjustment to the in lieu fee based on the amount of the fees actually paid by the Tribe under a Class III compact that are received by the City. If the parties are unable to agree on an adjustment, either party may submit the dispute to binding dispute resolution under paragraph L. 4 . This payment is not intended to cover direct fees for services such as water service, building permits, 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 . 50) per month from the due date . H. Development Code The Tribe shall adopt a development code regulating land use and land development on the rancheria. The Tribe shall give the City not less than thirty (30) days notice of its intent to adopt a development code and shall afford the City an opportunity to review and comment upon the development code prior to its adoption. The City will not provide the Tribe with water for additional development on the rancheria, until the Tribe has complied with this paragraph H. I . Environmental Review Copies of all environmental documents required to be prepared by State or Federal law for which Tribe or a Federal agency are s:\djr\agrmts95\redding5.cty 1 2 July 13, 1995 � • the lead agency on behalf of the Rancheria are to be submitted to the City Planning Department for review and comment . J. Security for Performance Tribe shall provide City with a cash deposit, Letter of Credit, or Certificate of Deposit as provided below to secure Tribe' s performance, which requires the payment of money under this Agreement . City shall have the right to use the security to secure Tribe' s default arising out of the failure to pay as further provided herein. l . Letter of Credit. Tribe may furnish City wi_th a Letter of Credit issued by a bank or savings and loan association in a form approved by City in the amount of FIFTY THOUSAND DOLLARS ($50, 000) . The Letter shall provide that the City, upon stating in writing that a default in the payment of money has occurred, may draw upon the Letter by making demand upon the issuer. The issuer shall be obligated to pay such sums as are demanded by City up to the limits of the Letter of Credit without further approval from Tribe . If the City is required to demand payment under the Letter of Credit, thereafter the amount of the Letter of Credit shall be increased by three percent (30) per year for each year that service is provided. 2 . Certificate of Deposit. In the alternative, Tribe may furnish City with a Certificate of Deposit with an opening balance of FIFTY THOUSAND DOLLARS ($50, 000) in the name of the City with a term of not less than one (1) year. The Certificate of Deposit shall be automatically renewed for successive one- (1) year terms unless Tribe gives written notice of intent to substitute a different security at least thirty (30) days prior to the maturity date of the Certificate . If the City is required to withdraw funds under the certificate of deposit, thereafter the amount of the Certificate shall be increased by three percent (3a) per year for each year that service is provided. Tribe shall be entitled to the interest earned by the Certificate of Deposit, provided that City has not made any withdrawals therefrom to cure Tribe' s default . City shall be entitled to withdraw such sums from the Certificate of Deposit as it requires to cure any default in payment of money. 3 . 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 s:\djr\agrmts95\redding5.cty 1 3 Suly 13, 1995 � • dispute arises out of City' s use of the security, the dispute shall be resolved by binding dispute resolution as provided in paragraph L. K. Termination of Agreement 1 . Voluntary Termination. This Agreement may be voluntarily terminated by Tribe by giving City six (6) months written notice of termination. City shall not terminate this Agreement except for cause set forth below. 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 material terms, conditions, or covenants required by this Agreement to be performed. 3 . Additional Causes for Termination. City may terminate this Agreement for any of the following reasons : a. If the County of Shasta refuses to provide law enforcement services on the Rancheria through the County Sheriff' s Department for a period of sixty (60) days and the Rancheria fails to contract for law enforcement services from the City Police Department on terms and conditions acceptable to the City. The City shall not have the right to terminate this agreement for the reasons stated in this subdivision if Tribe establishes its own tribal police department in substantial compliance with the rules and standards provided for comparable police departments under state law or the rules and regulations applicable to tribal police departments under federal and tribal law, and enters into an agreement with the County for jailing of prisoners . b. If the County of Shasta, California Division of Forestry ( "CDF" ) or any special district ( "fire districts" ) refuses to provide fire protection or any other service that it currently provides to Rancheria for a period of sixty (60) days and Tribe fails to contract for fire protection or such other service as is available from the City on terms and conditions acceptable to the City. The City shall not have the right to terminate this agreement for the reasons stated in this subdivision if Tribe establishes its s:\djr\agrmts95\redding5.cty July 13, 1995 1 4 � � own tribal fire department capable of providing services equivalent to the fire prevention and protect'ion services previously provided by CDF and/or fire districts and Tribe enters into a mutual-aid agreement with City. c . Recision of Tribal Land Status by the Federal Government or Bankruptcy of Tribe. L. Binding Dispute Resolution l . 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 nondefaulting 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 s:\djr\agrmts95\redding5.cty 1 5 July 25, 1995 � • 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. M. Remedies on Default After final determination that a default has occurred, the parties shall have the following remedies : l . 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 service to Tribe . Notice that the Agreement is terminated and that water delivery 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 Dispute Resolution is timely requested by the Tribe, the City shall not terminate water 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. s:\djr\agrmts95\redding5.cty July 13, 1995 1 6 � • 2 . Remedies of Tribe in Event of Default by City. a. Default Not Involving Delivery of Water. In the event of a default by City not involving the delivery of water, 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. In the event City, without justification, curtails or shuts off the delivery of water 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 and be entitled to an award of damages for the period during which water was curtailed or shut off . A determin.ation 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. N. Notice 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 first class postage properly affixed thereto and addressed as follows : Tribal Council City Redding Rancheria City Manager c/o Tribal Chairperson City of Redding 2000 Redding Rancheria Road 760 Parkview Avenue Redding; CA 96001 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. O. 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 s:\djr\agrmts95\redding5.cty July 13, 1995 1 7 , i • purported change in the terms of this Agreement shall be effective or binding on the parties . P. 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. Q. Integration 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 . R. Waiver 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. S. 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 . T. 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 . U. Transferability 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 s:\djr\agrmts95\redding5.cty 1 8 July 13, 1995 � � . 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 sewer, 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 l, 1995 . V. 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 written consent, attached as an addendum hereto, shall have the right to continue to give or receive services to prevent public health or safety problems . W. 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. X. Acquisition of Facilities In the event Tribe chooses not to operate and maintain water 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. Y. Maintenance of Traffic Access Tribe shall be responsible for construction, repairing, and maintaining of all utility lines and private roads within the s:\djr\agrmts95\redding5.cty 1 9 July 13, 1995 � � Rancheria in a manner that will impose the least possible hinderance to the user and residents along Rancheria Road for the purpose of emergency vehicle response . Z. Indemnification 1 . Indemnity. Tribe shall hold City harmless from and defend City against all claims, liability, damage, or loss arising out of any injury or death of any person or damage to or destruction of property attributable to the negligent or willfully wrongful act or omission of the Tribe in operating its utility services or performing the road construction and maintenance required by this Agreement, except that caused by the sole and active negligence or willful misconduct of City or City' s employees . These indemnity obligations shall include reasonable attorney fees, investigation costs, and all other reasonable costs incurred by City from the first notice that any claim or demand is to be made or may be made . City shall promptly give notice to Tribe of any claim or demand. The provisions of this Section shall survive the termination of this Agreement for any event occurring prior to the termination. 2. Insurance. Tribe agrees that at all times during the existence of this Agreement, it will maintain in force at its own expense a comprehensive general liability ( "CGL" ) insurance policy naming as additional insureds the City, its boards, commission, officers, and employees issued by a company . authorized to do business in the State providing coverage coextensive with the Tribe' s indemnification of City as provided herein, subject to the terms and conditions in Insurance Services Office ( "ISO" ) form CG 1 11 (88) . 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 damage to property resulting from one occurrence shall apply. A.A. Performance Bond When connecting to the City water system or doing public street or utility work outside the limits of the Rancheria as approved by the City, Tribe or its contractor 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 a bond covering may be reduced when any construction that is covered by the bond is completed and accepted. AB. Right to Inspect The City shall have the right to inspect all construction s:\djr\agrmts95\redding5.cty 2 O , July 13, 1995 � • within the Rancheria and all waterlines 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 . AC. 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 within the Rancheria in a manner that complies with this Agreement which suit or proceeding could affect the City' s water system or delivery of water. AD. Effective Date The effective date of this Agreement shall be the date on which the Agreement is executed by the last party to execute the Agreement . ,d°" ��� � /✓ � / � � .�{ . s:\djr\agrmts95\redding5.cty July 13, 1995 2 1 � - • i IN WITNESS WHEREOF the parties hereto have set their hands and seals on the dates set forth below. CITY OF REDDING By David A. Kehoe, Mayor Date of Execution: ATTEST: Connie Strohmayer, City Clerk FORM APPROVED: W. Leonard Wingate, City Attorney TRIBAL COUNCIL OF THE REDDING RANCHERIA By , Chairperson Date of Execution: ATTEST: Barbara Murphy, Chief Executive Officer s:\djr\agrmts95\redding5.cty 2 2 July 13, 1995