HEARTH ACT BUSINESS LEASE ORDINANCE CIIAPTER ONE (2021)

HEARTH ACT BUSINESS LEASE ORDINANCE CIIAPTER ONE

INTRODUCTION

1.1

Authority and Delegation. This Ordinance is enacted by the Colville

Business Council pursuant to tlle powers vested to it under Article V, Section 1 ofthe

Constitution ofthe Confederated Tribes of the Colville Reservation ("Colville Tribes" or the

"Tribes"), as approved by the Commissioner of Indian Affairs on April 19, 1938, as amended

and as may be amended from time to time ("Constitution"). This Ordinance be effective

immediately upon approval by the Assistant Secretary-Indian Affairs, or her designee.

1.2 Scope. The scope of application ofthis Ordinance shall be limited to Business Leases

approved by the Colville Business Council, in accordance with all applicable federal regulations

and laws of the Colville Tribes where such approval indicates that the Lease is to be govemed by

this Ordinance. Nothing herein shall be construed to affect the terms and conditions ofexisting

leases.

1.3 Purpose. The purposes ofthis Ordinance are to:

(a) Implement the Helping Expedite and Advance Responsible Tribal Home

Ownership (HEARTH) Actof 2012, Pub. L. 112-151, codified at 25 U.S.C.

$alsG);

(b)

Recognize the authority of the Colville Tribes to issue, review, approve, and

enforce Business Site Leases without BIA approval under the HEARTH Act

and establish streamlined procedures for environmental review; and

(c)

Promote self-determination, encourage economic self-suffrciency, and increase

business activity and employment on and around the Colville Reservation and on

and around other lands held in trust for the benefit of the Colville Tribes, including

such lands in the North Half, the former Moses Columbia Reservation, the Tribes'

aboriginal areas, and elsewhere outside the boundaries of the Colville Reservation.

1.4

Leases Subject to Ordinance: Only those Business Site Leases of surface

lands held in trust for the benefit of the Colville Tribes identifred in a resolution duly

enacted by the Colville Business Council shall be subject to this ordinance. Such Leases

shall not be effective until the date identified in the duly enacted Tribal Resolution. All

other Leases shall proceed through the default BIA review and approval process.

1.5 Short Title. This Ordinance shall be known and cited as the "Confederated

Tribes of the Colville Reservation HEARTH Act Business Lease Ordinance."

1.6 Applicable Law. Except where otherwise required by agreement or applicable law,

the Colville Business Council shall manage all Leases pursuant to this Ordinance. The law that

will apply to all Leases authorized under this Ordinance will be in the following order: the laws,

regulations, and ordinances ofthe Colville Tribes and any appiicable federal regulations.

HEARTH Act Business Lease C)rdinancc

Page I

CHAPTER TWO DEFINITIONS

2.1 Delinitions. As used in this Ordinance, the capitalized terms set lorth below shall

have the following meanings:

(a)

"Assignment" means an agreement between a Lessee and an assignee whereby the

assignee acquires all or some of the Lessee's rights and assumes all or some of the

Lessee's obligations under a Business Site Lease.

(b)

"Best Interest of the Tribes" means the balancing of interests in order to attain the

highest economic income, provide incentives to increase economic development,

preserve and enhance the value of Tribal Land, increase employment and jobs on

the Tribal Land, and preserve the sovereignty ofthe Colville Tribes.

(c)

"B1l " means the Bureau of Indian Affairs, United States Department of the

Interior.

(d)

"Business Site Lease(s)" means the same as "Lease."

(e)

" Change

in Land Use" means the change from residential to non-residential,

commercial to industrial, or one industrial use to another that significantly differs

from the former use.

(f)

(g)

"Development Period" means the period from when a Lease is executed to when

improvements are expected to be substantially completed.

Review Process" means the process for conducting tribal

environmental review to assess whether a proposed development or project as

defined under applicable Tribal law or regulations will have a Significant Effect

" Environmental

on the Environment.

(h)

"Environmental Reviewer" means the Tribes' lntegrated Resources Management

Plan (IRMP) Coordinator, or his or her designee, or any other individual otherwise

designated by the Colville Business Council.

(D

"Execuling Oficial" means the Director of the Tribal Realty Department, who

shall execute all Business Site Leases ofthe Colville Tribes and take all necessary

and proper action on Leases and Subleases, including amendments, modifications,

Assignments and cancellations of Leases and Subleases.

0)

"Fair Annual Lease Value" means the most probable dollar amount a property

should bring in a competitive and open market reflecting all conditions and

restrictions of the specified Lease agreement including term, rental adjustment and

revaluation, permitted uses, use restrictions, and expense obligations; the Lessee

and Lessor each acting prudently and knowledgeably, and assuming

rIEARTII Act Business Lease Ordinance

Page 2

consummation of a Lease contract as of a specified date and the passing of the

leasehold from Lessor to Lessee under conditions whereby:

(i)

(ii)

Lessee and Lessor are typically motivated;

Both parties are well-informed or well-advised, and acting in what they

consider their best interests;

(iii)

A reasonable time is allowed for exposure in the open market;

(iv)

The rent payment is made in terms of cash in United States dollars, and is

expressed as an amount per time period consistent with the payment

schedule of the Lease conlract; and the rental amount represents the

normal consideration for the property leased unaffected by special fees or

concessions granted by anyone associated with the transaction.

(k) "Holdover" means circumstances in which a Lessee remains in possession of the

leased premises after the Lease term expires.

0)

written agreement or contract between the Lessor and a Lessee

whereby the Lessee is granted a right to possess Tribal Land for a specified

purpose and duration. The Lessee's right to possess will limit the Lessor's right to

possess the leased premises only to the extent provided in the Lease.

'' Lease" means a

(m) " Leasehold Morlgage" means a mortgage, deed of trust, or other instrument that

pledges a Lessee's leasehold interest as security for a debt or other obligation owed

by the Lessee to a lender or other mortgagee.

(n)

Leasing Decision" means the following type of lease transactions that will be

acted on by the Tribal Realty Department: lease issuance, lease amendment or

modification, subleasing, lease assignment or transfer and tenanl leases.

(o)

"Lessee" means a person or entity who has acquired a legal right to possess Tribal

Land by a Lease pursuant to this Ordinance.

(p)

"Lessor" means the Tribal Realty Department, on behalf of the Tribes. who holds

property title and conveys the right to use and occupy the property under a Lease.

"

(q) "Land Title and Records Ofiice" or "I1"RO" means the office within the Bureau of

Indian Affairs charged with the Federal responsibility to record, provide custody,

and maintain records that affect titles to Indian lands, to examine titles, and to

provide title status reports for such land.

G)

(s)

"Project" means the activity contemplated by the proposed Lease.

"Public" for the purposes of the Environmental Review Process means the

enrolled members of the Colville Tribes and other individuals that have a concrete

interest that may reasonably be affected by a proposed Lease.

IIEARTI I Act Business lxase Ordinance

Page 3

(t)

"Restricted Land' means any tract held by the U.S. in restricted status for the

benefit ofthe Tribes.

(u) "SigniJicant Effict on lhe Environmenl" means a substantial, or potentially

substantial, adverse change in the environment, including land, air, water,

minerals, flora, fauna" ambient noise, cultural areas and objects ofhistoric, cultural

or aesthetic significance, as determined by the Director ofthe Environmental Trust

Department.

(v)

"Space Lease" means a Lease of space within existing facilities on Tribal Land

that is not already leased, i.e., not Subleases.

(w) "Sublease" means a written agreement by which the Lessee grants to an individual

or entity a right to possession no greater than that held by the Lessee under a

Business Site Lease.

(*)

"Tribal Land' means the surface estate of any tract of land held by the United

States in trust or restricted status for the beneht ofthe Colville Tribes.

(V) "Tribal Realty Department" means the administrative depanment of the Colville

Tribes that carries out realty transactions on the Tribes' behatf, including those

tribal personnel that perform BIA realty functions under a contract, compact,

cooperative agreement, or other instrument under the Indian Self-Determination

and Education Assistance Act of 1975. The Director of the Tribal Realty

Department has the authority to perform the duties and responsibilities of the Lessor

on behalf of the Tribes, and to approve or disapprove leasing transactions, which

include but are not limited to: lease issuance, bond, Iease amendment or modification.

(r)

"Trust or Restricted Land' means any tract held by the U.S. in trust or restricted

status for the benefit ofa tribe.

(aa) "Trust or Restricted Status" means that the U.S. holds title to the tract in trust for

the benefit ofa tribe; or a tribe holds title to the tract, but can alienate or encumber

it only with the approval of the U.S. because of limitations in the conveyance

instrument under Federal law or limitations in Federal law.

CHAPTERTHREE

BUSINESS SITE LEASE REQUIREMENTS

3.1

Terms and Conditions, Leases shall be govemed by the terms and conditions

set forth in the Business Site Lease agreement, this Ordinance, and applicable law. The terms

and conditions may be modified only with the approval olthe Office of the Colville Business

Council, its designee, or the Office of the Reservation Attomey. The Lessee is responsible for

understanding these terms and conditions.

3.2 Duration and Renewal. No Lease shall be approved more than 12 months prior

to the commencement of the term of the Business Site Lease. The term shall not be more

IIEARTH Act Business tlasc Ordinancc

Page 4

than 25 years except that any such Lease may include an option to renew for up to two

additional terms, each of which may not exceed 25 years. If the Lease includes an option to

renew. the Lease must specify:

(l) The time and manner in which the option must be exercised or is automatically

effective;

(2) That confirmation of the renewal will be submitted to the Tribal Realty

Departmentus, unless the lease provides for automatic renewal;

(3) Whether Colville Tribes' consent to the renewal is required;

(4) That the Lessee must provide notice ofthe renewal to the Colville Tribes and any

sureties and mortgagees;

(5) The additional consideration, if any, that will be due upon the exercise of the

option to renew or the start ofthe renewal term; and

(6) Any other conditions for renewal (e.g., that the Lessee is not in violation of the

lease at the time of renewal).

The Lessee shall notiff the Tribal Realty Department of the intent to renew, at least

one year before such Lease is due to expire.

3.3 Obtaining a Business Site Lease. Information on obtaining a Business Site Lease

shall be available from the Director ofthe Tribal Realty Department, or his or her designee.

(a) All applicants for a Business Site Lease shall submit the following documents to

the Tribal Realty Department:

(D

(ii)

financial statements, suflicient to inform the Colville Business Council of

the economic position of the applicant, including by not limited to bank

statements dating back twenty-four (24) months;

site survey and legal description, ifapplicable;

(iii) tribal environmental review where required under Chapter 7 ofthis

Ordinance; and

(i")

(b)

other documents as may be required by the Tribal Realty Department and

pursuant to the Tribal Realty Departrnent's Business Site Leasing

procedures.

All Business Site Leases shall contain, at a minimum, the following provisions:

HIARIII Act Eusiness I-ease Ordinance

Page 5

(i)

(iD

a legal description of the land that meets the requirements of the Land

Title Records Offrce and, at the request of the Land Title Records Office,

any additional information needed by the LTRO to enable the LTRO to

ascertain the location ofthe land;

The purpose ofthe Lease and authorized uses ofthe leased premises;

(iii) The parties to the Lease;

(iv)

The term ofthe Lease and the effective date ofthe Lease;

(v)

Identification of the responsible party for constructing, owning, operating,

removing, and maintaining any improvements to the leased premises;

(vi)

Indemnification and hold-harmless provision in favor of United States and

the Tribes, as Lessor;

(vii)

Payment requirements, acceptable forms of payments, and provisions

relating to late payments, including interest and penalties;

iii)

Unless otherwise provide for in the Lease, the Lessee shall make

payments directly to the Tribal Realty Departrnent using an acceptable

form of payment listed in Section 3.7(f) of this Ordinance;

(ix)

Due diligence, insurance and bonding requirements as provided in this

(v

Section; and

(x)

(c)

All powers of the Tribal Realty Department that are necessary and proper

to enforce the Lease terms, laws, ordinances, regulations, rules, policies,

and covenants, consistent with their business site leasing management

plans. This includes the power 1o enter the premises at a reasonable time,

with or without notice, assess penalties, and assess late payments.

The Colville Business Council shall approve or disapprove a Lease within sixty

(60) days of receiving a complete Business Site Lease application. Following

Colville Business Council approval of a Lease, the Tribal Realty Department

shall record Business Site Leases, Subleases, Assignments, amendments,

encumbrances, renewals, modifications, and cancellations with:

(i)

Land Title and Records Office

Confederated Tribes of the Colville Reservation

P.O. Box 150

Nespelem, WA 99155

(ii)

The Tribal Realty Department is responsible for maintaining all

records of all Business Site Leases and for disseminating recorded

lease documents to the Colville Business Council, the Environmental

IIEARTH Act Business l-casc Gdinance

Page 6

Trust Department, the Office of the Reservation Attorney, and if

required by the Colville Business Council, to the Colville Indian

Housing Authority.

(iiD The Tribal Realty Department shall send a copy of these Leases and

all amendments and renewals for information purposes only, to:

Superintendent, Colville Indian Agency, Bureau of Indian Affairs,

Post Office Box 111, Nespelem, WA 99155-0111.

(iu) The Tribal Realty Department shall send a copy ofthis Ordinance and

a Lease that allows for lease payments directly to the Colville Tribes

to: Superintendent, Colville Indian Agency, Bureau of Indian Affairs,

Post Office Box 111, Nespelem, WA 99155-01 11.

(c)

Records of activities taken pursuant to this Ordinance are the property of the

United States, the Tribal Realty Department, and the Tribes' Records compiled,

developed, or received by the Tribal Realty Department in the course of business

with the Secretary are the property of the Tribes.

(d) A Lease may include, consistent with tribal law, a provision to give Indian

preference in hiring for employment purposes.

3.4

Space Leases. To the extent these Leases require approval pursuant to federal

laws and policies, Space Leases shall be reviewed and approved pursuant to this Ordinance.

3.5

Land Descriptions. Business Site Leases shali contain a legal description ofthe

land that meets the requirements of the Land Title Records Office. Space Leases shall contain

adequate descriptions of the location and square footage of the space being leased and may

include renderings, architectural drawings, or other schematics to illustrate the location of the

space.

3.6 Appraisal; Local Studies.

(a) The Fair Annual Lease Value shall be determined by an appraisal or

equivalent procedure performed by the Tribal Realty Department utilizing the

following data: improvement cost, replacement cost, eaming capacity, sales and

lease data of comparable sites or by similar methodology as approved by the Tribal

Realty Department and deemed to be in the best interest of the Colville Tribes. An

appraisal log reporting the methods of appraisal and value of Tribal Land shall be

attached to every Business Site Lease.

(b)

Altematively, the Fair Annual Lease value shall be determined by an

appraisal performed by a licensed appraiser utilizing the Uniform Standards of

Professional Appraisal Practice or commonly accepted method of appraisal. An

appraisal log describing the method of appraisal and value of Tribal Land and shall

be attached to every Business Site Lease.

3.7

Fair Annual Lease Value.

HEARTH Act Busincss Lcasc Ordinarce

Page 7

(a) No Lease shall be approved for less than the present Fair Annual Lease Value as set

forth in the appraisal, except as follows:

(i)

The Lease is in the Development Period;

(iD

The Lessee is the Colville Tribal Federal Corporation or any other

business entity established by the Colville Business Council for the benefit

of the Tribes, and any of their affiliates or subsidiaries, provided the

Colville Business Council determines the Lease is in the Best Interest of

the Tribes; or

(iii)

The Colville Business Council has negotiated compensation satisfactory to

the Tribes, has waived valuation, and has determined that accepting such

negotiated compensation and waiving valuation is in its best interest..

(b)

A Lease may be structured at a flat lease rate.

(c)

A Lease may be structured at a flat lease rate plus a percentage ofgross receips.

(d)

A Lease may be structured based on a percentage ofgross receipts, or based on a

market indicator.

(e)

A Lease must specify the dates on which all payments are due.

(0

A Lease must specify that the Lessee shall make payments directly to the Tribal

Realty Departrnent using an acceptable form of payment. Acceptable forms of

payment include money orders, personal checks, certified checks, or cashier's

checks.

(e)

Unless otherwise provided in the Lease, payments may not be made or accepted

more tlan one year in advance of the due date.

(h)

The Lease may provide for periodic review and such review may give

consideration to the economic conditions, exclusive of improvement or

development required by the contract or the contribution value of such

improvements.

(D

Leases may be structured to allow for lease rate adjustments. The Lease shall

specify how adjustments will be made, who will make such adjustments, when

adjustments will go into effect, and how disputes shall be resolved.

C)

Leases may be amended to allow for lease rate adjustments.

(k)

The Tribal Realty Department shall keep written records of the basis used in

determining the Fair Annual Lease value, as well as the basis for adjustments.

These records shall be presented to the Lessee for its review and acceptance or

non-acceptance and included in any lease file.

HEARTH Act Business Lease Ordinance

Page 8

3.8 Environmental Review Process. Unless exempted from this requirement under

this Ordinance, the Colville Business Council shall not approve a Business Site Lease until

the proposed business site Lessee has completed the Environmental Review Process under

Chapter Seven of this Ordinance. Leases approved and executed without complying with

this section shall be null and void

3.9 Insurance and Indemnffication.

(a)

A Lessee shall provide insurance necessary to protect the interests of the

Colville Tribes and in amounts sufficient to protect all insurable improvements

on the premises. The insurance may include, but is not limited to, property,

liability or casualty insurance or other insurance as specified in the Business Site

Lease. The Colville Tribes and the United States must be identified as

additional insured parties. The Tribal Realty Department may waive this

requirement if the waiver is in the best interest of the Tribes. The waiver may be

revoked at any time if the waiver ceases to be in the Tribes' best interest.

(b)

Unless the Lessee would be prohibited by law from doing so, the Lease must

also contain the lollowing provisions:

(1) The Lessee holds the United States and the Colville Tribes harmless from

any loss, liability, or damages resulting from the Lessee's use or occupation of

the leased premises; and

(2) The Lessee indemnifies the United States and the Colville Tribes against all

liabilities or costs relating to the use, handling, treatment, removal, storage,

transportation, or disposal of hazardous materials, or the release or discharge of

any hazardous material from the leased premises that occurs during the lease

term, regardless of fault, with the exception that the Lessee is not required to

indemnifu the Colville Tribes for liability or cost arising from the Colville

Tribes' negligence or willful misconduct.

3.10 Performance Bond.

(a)

Unless waived in writing by the Colville Business Council in accordance with

this Ordinance, the Lessee shall obtain a satisfactory performance bond in an

amount sufficient to secure the contractual obligations ofthe Lease. Such bond

shall be for the purpose of securing the Lessee's contractual obligations under

the Business Site Lease and may guarantee the annual lease payment;, the

estimated development cost of improvements; and any additional amount

necessary to ensure compliance with the Lease.

If a performance bond is required

(1) the Lease must state that the Lessee must obtain the consent ofthe surety for

any legal instrument that directly affects their obligations and liabilities; and

HHAR l H Act Uusiness L€ase Ordinance

Page 9

(2) The performance bond or other security instrument must require the srrety to

provide notice to the Tribal Realty Office at least 60 days before canceling a

performance bond or other security. This will allow the Tribal Realty

Department to notifu the Lessee of its obligation to provide a substitute

performance bond or other security and require collection of the bond or

security before the cancellation date. Failure to provide a substitute

performance bond or security is a violation ofthe Lease.

(b)

(c)

The Colville Business Council may waive the bond requirement, or reduce the

amount, if it determines that doing so is in the Best Interest of the Colville

Tribes. The Tribal Realty Department shall maintain written records of waivers

and reductionsThe performance bond may be in one of the following forms:

(l)

Certificates of deposit issued by a federally insured financial

institution authorized to do business in the United States;

(2)

Irrevocable letters of credit issued by a federally insured

financial institution authorized to do business in the United

States;

(3)

(4)

Negotiable Treasury securities; or

Surety bond issued by a company approved by the U.S.

Department of the Treasury.

3.ll Improvements. All Business Site Leases shall require the Lessee to exercise

due diligence and best efforts to complete construction of any improvements within the

schedule specified in the Business Site Lease.

(a)

Lessee, at Lessee's expense or as otherwise provided in the Business Site

Lease, may construct improvements under a Business Site Lease if the Lease

specifies, or provides for the development of:

(i)

a plan that describes the type and location ofany improvements to be built

by the Lessee; and

(ii)

(b)

.

a general schedule for construction of the improvements.

Lessee shall provide the Tribal Realty Department written justification as to

the nature of any delay, the anticipated date of construction of the

improvements, and evidence of progress toward commencement of

construction.

(c)

When requested by the Tribal Realty Department or otherwise required in the

Business Site Lease, Lessee shall further provide the Tribal Realty

Department, in writing, an updated schedule for construction.

HEARTH Acl Busin€ss I-ease Ordinance

Page l0

(d)

(e)

Failure of the Lessee to comply with these requirements will be deemed a

violation of the Business Site Lease and may lead to cancellation of the

Business Site Lease pursuant to Chapter 5 of this Ordinance.

Improvements to the premises shall become the property of the Colville Tribes

unless otherwise provided for in the Business Site Lease. If improvements will be

removed, the Business Site Lease must specify the Lessee's responsibility for

such removal, the maximum time allowed for such removal, and the Lessee's

obligations to restore and reclaim the property to conditions acceptable to the

Tribes.

(0

A Lessee may develop equity value in the improvements, and sell its interest in

the Business Site Lease based on the equity value. The Colville Business Council

has a right offirst refusal to purchase the interest.

(e)

The Business Site Lease may provide that at expiration, cancellation, or

termination of the Business Site Lease, the Lessor shall purchase

improvements to the premises at fair market value. Any Business Site Lease

that includes this provision shall also include a depreciation schedule.

(h)

Improvements may be subject to taxation by the Colville Tribes.

3.12

Subleases, Assignments, Amendments and Encumbrances.

(a)

Subleases, Assignments, amendments or encumbrances of any Business Site

Lease shall be by written consent of the Tribal Realty Department and Lessee

and shall not be effective until approved by the Colville Business Council.

(b)

The Business Site Leases may authorize Subleases and Assignments, in whole

or in part, with the written approval of the Colville Business Council, provided a

copy of the Sublease or Assignment is provided to the Tribal Realty Department

and the following conditions, where applicable, are met and stated in the

Business Site Lease:

(D

There is no event of default under the Business Site Lease or this

Ordinance;

(ii)

Any restrictions and use limitations on the use of the premises shall

continue to apply to any subtenant or assignee;

(iii) The proposed assignee or sublessee submits a current financial statement

showing financial adequacy; and

(iv)

The Lessee shall not be relieved or released from any of its obligations

under the Business Site Lease.

This Section 3.12(b) in no way relieves the parties from carrying out their duties under

the Business Site Lease, which may contain additional restrictions and conditions.

HEARIH Act Business Lease Ordinance

Page 1 I

(c)

The Lease may authorize encumbrances to the leasehold interest for the purpose

of financing to develop and improve the premises subject to approval by the

Tribal Realty Department and execution from the Executing Oflicial.

(d)

If a sale or foreclosure of the Lessee's business or assets occurs and the

encumbrancer is also the purchaser, the encumbrancer may assign the Lease

without approval ol the Tribal Realty Department or Lessee, provided the

assignee agrees in writing to be bound by all the terms and conditions of the

Lease. If the purchaser is a party other than the encumbrancer, approval by the

Tribal Realty Department and execution from the Executing Official is required,

provided the purchaser agrees in writing to be bound by all terms and conditions

of the Lease.

CHAPTER TOUR BUSINESS LEASE MANAGEMENT

4.1 Management generally: Except where required otherwise by the terms ofthe Lease,

applicable law, or the Colville Business Council, the Tribal Realty Department shall manage all

Business Site Leases pursuant to this Ordinance. The terms of the Environmental Review Process

shall be managed by the Environmental Reviewer.

4.2 Administrative Fees. The Tribal Realty Department may charge administrative

fees for costs associated with issuing a Lease, Sublease, Assignment, amendment, mortgage or

other administrative transaction.

CHAPTER FIVE ENFORCEMENT

5.1 Generally. Following approval ofa Lease by the Colville Business Council, the

Tribal Realty Department shall have all powers necessary and proper to enforce the Lease

terms, laws, ordinances, regulations, rules, policies, and covenants, consistent with their

business site leasing management plans. This includes the power to enter the premises at a

reasonable time, with or without notice, assess penalties, and assess late payments. The

obligations of the Lessee and its sureties to the Colville Tribes are also enforceable by the

United States, so long as the land remains in trust or restricted status.

3.2 Default.

(a) The Lessee is in default if:

(i)

(iD

The Lessee has failed to make payments required by the Lease; or

The Lessee is otherwise in breach of the terms of the Lease or any other

requirement of this Ordinance.

(b) If the Tribal Realty Department determines the Lessee is in default, the Tribal

Realty Departrnent shall send the Lessee a notice of default within five (5)

business days of the determination. The notice of default may be provided by

certified mail, retum receipt requested.

HEARTH Acl Business kase Ordinance

Page 12

(c)

Within ten (10) days of the mailing, the Lessee shall:

(i)

Cure the default and notiry the Tribal Realty Department in writing that

the default has been cured.

(ii)

Dispute the Tribal Realty Department's determination that the Lease is in

default and explain why the Lease should not be canceled; or

(iii) Request additional time to cure the default.

5.3

Remedies.

(a)

If the Lessee fails to cure the default within the prescribed period, the Tribal

Realty Department may:

(D

Cancel the Lease pursuant to these regulations: Additionally, the BIA

may, upon reasonable notice from the Tribes and at the discretion of the

BIA, enter the leased premises for inspection and enforce the provisions of,

or cancel, any Lease executed by the Tribes;

(ii)

Grant an extension of time to cure the defaultl

(iii)

Pursue other remedies, including execution on bonds, collection of

insurance proceeds, or use of collateral under Section 5.8 of this

Ordinance;

(iv) Any combination of remedies listed above; or

(v) Any other remedy set forth in the business site lease management plan or

policy.

(b) If the Tribal Realty Department cancels a Business Site Lease, the Tribal

Realty Department shall send the Lessee a cancellation letter within a

reasonable time period. The cancellation letter may be sent to the Lessee by

certified mail, retum receipt requested. The cancellation letter shall:

(D

(ii)

Explain the grounds for cancellation;

Nodry the Lessee of unpaid amounts, interest charges or late payment

penalties due under the Lease;

(iiD Notifu the Lessee ofits right to appeal; and

(iv) Order the Lessee to vacate the premises within thirty (30) days of mailing

of receipt ofthe cancellation letter, if an appeal is not hled by that time.

(c)

A cancellation shall become effective thirty (30) days after mailing. The

filing of an appeal shall not change the effective date of the cancellation.

HEARTII Acl Business L€ase Ordinance

Page 13

Pending the outcome of an appeal, the Lessee shall make all requisite

payments, as well as comply with the terms of the Lease.

(d) If the Tribal Realty Department decides to grant an extension oftime to cure a

default, the Lessee shall proceed diligently to perform and complete the

corrective actions within a reasonable time period.

5.4

Penalties. The Lease shall specify the rate of interest to be charged if the

Lessee lails to make payments in a timely manner. The Lease shall identifu additional late

payment penalties. Unless the Lease provides otherwise, interest charges and late payment

penalties shall apply in the absence of any specific notice to the Lessee lrom the Tribal

Realty Department, and the failure to pay such amount shall be treated as a breach of the

Lease.

5.5 Harmful or Threatening Activities. If a Lessee or other party causes or

threatens to cause immediate and significant harm to the premises, or undertakes criminal

activity thereon, the Tribal Realty Department may take appropriate emergency action. The

BIA may, upon reasonable notice from the Tribes and at the discretion of the BIA, enter the

leased premises for inspection and enforce the provisions of, or cancel, any Lease executed

by the Tribes.

5.6 Holdover. If a Lessee remains in possession after the expiration or

cancellation of a Lease, the Tribal Realty Department shall treat such occupation as a

trespass. The Tribal Realty Department shall act to recover possession and pursue additional

remedies. Filing shall be pursuant to Tribal laws, or altematively, the Tribal Realty

Department may make a written request sent by certified mail to the BIA for resolution under

any applicable federal laws.

5.7 Trespass. If a person occupies the premises without the Tribal Realty

Depanment's approval, the Tribal Realty Department or t}Ie Colville Business Council may

pursue appropriate remedies, including the filing of a trespass action to regain possession

under tribal law.

5.8 Use of Collateral to Satisfy Obligations. The Colville Tribes may hold,

convert and apply toward unpaid balances, or otherwise utilize the assets of a Lessee or

person to satisfy any applicable provision of this Section 5.

CHAPTER SIX

APPEALS

6.1 Appeals. The Lessee or interested party may appeal a determination of the Tribal

Realty Department, within ten (10) days of the determination. Appeals may be filed with the

Colville Tribal Court or other hearing body or entity designated by the Colville Business

Council. Such appeals shall be effectuated by a wriuen notice setting forth the basis for the

appeal, a short statement indicating the nature and circumstances of the appeal, and a short

statement indicating the remedy being sought.

HEARTII Acl Busrness Lease Ordinance

Page 14

6.2 Scope of Review. The Colville Tribal Court or other hearing body designated by

the Colville Business Council shall review whether the determination was arbitrary,

capricious, or an abuse of discretion; not supported by substantial evidence in the record; or

otherwise, not in accordance with the law. The decision of the Colville Tribal Court or other

hearing body shall be frnal and shall not be subject to appeal. The BIA shall have

discretionary authority to review a determination of the Tribal Realty Department once the

Lessee or interested party has exhausted the Tribes' appeal process.

CHAPTER SEVEN

ENVIRONMENTAL REVIEW PROCESS

7.1 Generally. Unless exempt under this Chapter, the Tribal Realty Department shall

not submit a Business Site Lease to the Colville Business Council for review and approval

until the proposed Business Site Lease has completed the Environmental Review Process,

administered by the Environmental Reviewer and pursuant to this Chapter and applicable

Tribal regulations. Leases approved and executed without compliance with this Chapter shall

be null and void.

7.2

(a)

ThresholdDetermination.

Lessee Not Subject to Environmental Review Process: If the

Environmental Reviewer determines that the Leasing Decision by its natue

would not have a Significant Effect on the Environment, the Leasing Decision

is exempt fiom additional requirements of the Environmental Review Process,

subject to the environmental record requirements of applicable Tribal

environmental regulations.

(b)

Lessee Subject to Environmental Review Process: If the Environmental

Reviewer determines that the Leasing Decision might be expected to have a

Significant Effect on the Environment, the Lessee must fulfill the requirements

of the Environmental Review Process. The physical disturbances must be

direct, such as land clearing, new building construction, or discharge of

emission or effluent associated with the project.

historic properties.

archeological resources, human remains, or other cultual items not previously

reported are encountered during the course of any activity associated with the

Lease, all activity in the immediate vicinity of the properties, resources,

remains, or items will cease and the Lessee will contact the Tribal Realty

Department to determine how to proceed and appropriate disposition.

If

(c)

Other Exemptions. The Environmental Review Process shall not apply to

any Business Site Lease where such review is exempt under any other

applicable federal [aw, regulation, or administrative authority.

7.3 Action on Leasing Decision Subject to Completion of Environmental

Review Process. If the Environmental Reviewer determines that the Leasing Decision is

subject to the Environmental Review Process, the Tribal Realty Department may not

HEARTII Act llusiness Lease (Jrdinance

Page l5

consider the Leasing Decision until the Environmental Reviewer closes the Environmental

Review Process in accordance with this Ordinance.

7.4 Environmental Review Process.

(a)

Unless an exemption applies or a Lease is otherwise not subject to the

Environmental Review Process, then, before the execution of any Business

Site Lease, the Environmental Trust Department shall cause to be prepared a

tribal environmental impact report ("TEIR"), that analyzes the potentially

significant effects of the proposed action on the environment; provided,

however, that information or data that is relevant to such a TEIR and is a

matter of public record or is generally available to the Public need not be

repeated in its entirety in the TEIR, but may be specifically cited as the source

for conclusions stated therein; and provided further that such information or

data shall be briefly described, that its relationship to the TEIR shall be

indicated, and that the source thereof shall be reasonably available for

inspection at a public place or public building. The TEIR shall include a

detailed statement setting forth all of the following:

(i)

A description of the physical environmental conditions near the

Project (the environmental setting and existing baseline conditions), as

they exist at the time the notice of preparation is issued;

(iD All Significant Effects on the Environment ofthe proposed Lease; (iii)

In a separate section:

(l)

Any Significant Effect on the Environment that cannot be

avoided if the Lease is executed; and

(2)

Any Significant Effect on the Environment that would be

irreversible if the Lease is executed.

(3)

(b)

Any mitigation measures proposed, recommended, or required.

In addition to the information required pursuant to subdivision (a), the TEIR

shall also contain a statement indicating the reasons for determining that

various effects of the Lease on the off-reservation enviroffnent are not

significant and consequently have not been discussed in detail in the TEIR. In

the TEIR, the direct and indirect Significant Effects on the Environment shall

be clearly identified and described, giving due consideration to both the shortterm and long-term effects.

7.5 Notice of Completion of Draft TEIR.

(a) Within no less than thirty (30) days following the completion of the draft

TEIR, the Environmental Trust Department shall file a copy of the draft TEIR

and a Notice of Completion with the Tribes. The Environmental Trust

HEARTII Acl Business Lease Ordinance

Page 16

Department shall also post the Notice of Completion and a copy of the draft

TEIR on the Tribes' website. The Notice of Completion shall include the

following information:

(b)

(i)

A brief description ofthe Project;

(iD

The proposed location ofthe Project;

(iii)

An address where copies ofthe draft TEIR are available; and

(iv)

Notice ofa period of thirty (30) days during which the Tribes will receive

comments on the draft TEIR.

To satisfu the requirement for public notice and oppommity to comment under

this Ordinance, the Environmental Trust Departrnent will provide public

notice by the procedures specified below:

(i)

(ii)

Publication ofthe draft TEIR in on the Tribes' public website; or

Publication ofthe Tribes' draft TEIR in the Tribal Tribune.

7.6 Response to Public Comments. After the thirty (30) day comment period has

ended, the Environmental Trust Department will review all comments received from the

Public. Prior to the approval and execution of the Business Site Lease, the Environmental

Reviewer will provide written reports detailing the responses to relevant and substantive

public comments on any Significant Effect on tlre Environment arising as a result of the

proposed project and proposed or recommended mitigation measures addressing any such

impacts. Such written report shall include a restoration and reclamation plan, as approved

by the Tribes. Upon completion of the Environmental Review Process, the Environmental

Trust Departrnent's written reports and final decision shall be posted on the Tribes' public

website as notice to the Public.

CHAPTEREIGHT

SOVEREIGN IMMUNITY

Nothing in this Ordinance shall be deemed to waive the sovereign immunity of the

Colville Tribes or any of its enterprises, authorities, oflicers, agents, or employees.

CHAPTER NINE

SEVERABILITY

lfany provision of this Ordinance, or the application thereofto any person or circumstance,

shall be held unconstitutional or invalid by the Colville Tribal Court or any other court of

HEARTH Act Business Lease Ordinaoce

Pagc l7

competent jurisdiction, only the invalid provision shall be severed and the remaining provisions and

language ofthis Ordinance shall remain in full force and effecl.

CHAPTERTEN

EFFECTIVE DATE; AMENDMENT

This Ordinance shall take effect upon its adoption by the Colville Business Council and

approval by the Secretary of the Interior and may be amended by the Colville Business

Council. All substantive amendments to this Ordinance must be submitted to and approved by

the Secretary of the Interior.

tlgARItl Act Business IEase Ordinance

Pagc 18