[History: Tribal Act #20-38.3291, enacted by Tribal Council in Special Session on October 28, 2020.]
Leases shall be governed by the terms and conditions set forth in the business site lease agreement and this ordinance. The lessee is responsible for understanding these terms and conditions.
[History: Tribal Act #20-38.3291, enacted by Tribal Council in Special Session on October 28, 2020.]
The term of any business site lease shall not be more than twenty-five (25) years except that any such lease may include an option to renew for up to two (2) additional terms, each of which may not exceed twenty-five (25) years. A lease shall require that the lessee notify the Authority of its intent to renew, in writing, at least one (1) year before such lease is due to expire, unless a shorter period is set forth in the business site lease. The lease shall include the amount of additional consideration that is due at the start of the renewal term. A lessee that is in violation of the lease terms may not exercise the option to renew, unless the lessee cures the violation to the satisfaction of the Authority at least three (3) months before the start of the renewal term.
[History: Tribal Act #20-38.3291, enacted by Tribal Council in Special Session on October 28, 2020.]
Information on obtaining a business site lease shall be available from the Authority.
(a) 
All applicants for a business site lease shall submit the following documents to the Authority:
(1) 
Financial information requested by the Authority it deems necessary to determine whether the proposed lessee can meet the obligations of the proposed lease and/or the requirements of the ordinance;
(2) 
Site survey and legal description, if applicable;
(3) 
Tribal environmental review where required; and
(4) 
Other documents as may be required by the Authority and pursuant to the Authority's Business Site Leasing procedures.
(b) 
All business site leases shall contain, at a minimum, the following provisions:
(1) 
The tract, location, or parcel of Tribal land being leased;
(2) 
A description of the project, including the purpose of the lease and authorized uses of the leased premises;
(3) 
The parties to the lease;
(4) 
The term of the lease;
(5) 
Identification of the responsible party for constructing, owning, operating, and maintaining any improvements to the leased premises;
(6) 
Payment requirements and late payments, including interest and penalties at negotiated rates;
(7) 
Due diligence, insurance, and bonding requirements as provided in this ordinance. If a performance bond is required pursuant to this ordinance, the lease must state that the lessee must obtain the consent of the surety for any legal instrument that directly affects its obligations and liabilities;
(8) 
Removal and restoration plan requirements applicable to the leased premises at the expiration or cancellation of the lease;
(9) 
If the leased premises are within an Indian irrigation project or drainage district, except as otherwise provided in 25 CFR Part 171, the lessee must pay all operation and maintenance charges that accrue during the lease term, to the appropriate office in charge of the irrigation project or drainage district;
(10) 
If historic properties, archeological resources, human remains, or other cultural items not previously reported are encountered during the course of any activity associated with the lease, all activity in the immediate vicinity of such properties, resources, remains or other cultural items shall cease, and the lessee shall contact the Authority to determine how to proceed;
(11) 
There must not be any unlawful conduct, creation of a nuisance, illegal activity, or negligent use or waste of the leased premises, and the lessee must comply with this ordinance and all applicable law covering both civil and criminal activity;
(12) 
The obligations of the lessee and its sureties to the lessor are also enforceable by the United States, so long as the land remains in trust or restricted status;
(13) 
Unless the lessee would be prohibited by law from doing so:
(A) 
The lessee holds the United States and the Tribe harmless from any loss, liability, or damages resulting from the lessee's use or occupation of the leased premises; and
(B) 
The lessee indemnifies the United States and the Tribe 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 materials from the leased premises that occurs during the lease term, regardless of fault, with the exception that the lessee is not required to indemnify the Tribe for liability or cost arising from the Tribe's negligence or willful misconduct; and
(14) 
Requirements for the Authority's approval of any amendments, assignments, subleases, or leasehold mortgages.
(c) 
Upon receipt of a business site lease and supporting documentation, including any required Tribal environmental review, the Authority will review and inform the lessee if the information is complete. If the information is not complete, the Authority will notify the lessee in writing as to what additional information or documents are required. If the information is complete, the Authority will notify the lessee in writing of the date of receipt and, within sixty (60) days, will approve, disapprove, or inform the lessee that it needs additional time. If additional time is needed, the Authority will inform the lessee of the reasons, and will have another thirty (30) days to approve or disapprove the lease.
(d) 
Unless the business site lease states otherwise, a lease may include, consistent with Tribal law, a provision to give Indian preference in hiring for employment purposes.
[History: Tribal Act #20-38.3291, enacted by Tribal Council in Special Session on October 28, 2020.]
Records pertaining to business site leases shall be maintained and recorded as follows:
(a) 
The Authority is responsible for maintaining all records of all business site leases, including all renewals and amendments thereto, and for disseminating recorded memorandum of lease documents to the Tribal Council Secretary, the Tribal Environmental Department and, if required by the Tribal Council, to the Housing Department. An original or certified copy of any business site lease document, including the lease, renewal, sublease or assignment, and any other amendment entered pursuant to this ordinance shall be sent to the BIA for recording in its LTRO or to be processed as required under applicable BIA regulations or policy.
(b) 
Records compiled, developed, or received by the Authority in the course of review and approval of a business site lease under this ordinance are the property of the Authority and the Tribe.
[History: Tribal Act #20-38.3291, enacted by Tribal Council in Special Session on October 28, 2020.]
Business site leases shall contain adequate site surveys and legal descriptions based on metes and bounds, rectangular or lot and block systems and/or be of sufficient detail to meet recording requirements for the BIA LTRO having jurisdiction over the Tribal land subject to the lease. To the extent that the lease includes a space lease, it 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 to a specific location upon a tract of land subject to the lease.
[History: Tribal Act #20-38.3291, enacted by Tribal Council in Special Session on October 28, 2020.]
(a) 
The fair annual lease value shall be determined by an appraisal or equivalent procedure performed by the Authority utilizing the following data: improvement cost, replacement cost, earning capacity, sales and lease data of comparable sites or by similar methodology as approved by the Authority and deemed to be in the best interest of the Tribe. An appraisal log reporting the methods of appraisal and value of trust land shall be attached to every business site lease, except as set forth in § 912(c) below.
(b) 
Alternatively, 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 trust shall be attached to every business site lease.
(c) 
The appraisal process as set forth in § 912(a) and (b) above shall not be required if expressly waived in any lease.
[History: Tribal Act #20-38.3291, enacted by Tribal Council in Special Session on October 28, 2020.]
(a) 
In determining the fair annual lease value for a business site lease, the Authority, in addition to the criteria in § 906(1), shall assume that the lessee and lessor each are acting prudently and knowledgeably, and that consummation of the lease contract as of a specified date and the passing of the leasehold from lessor to lessee shall occur under conditions whereby:
(1) 
Lessee and lessor are typically motivated;
(2) 
Both parties are well informed or well advised, and acting in what they consider their best interests;
(3) 
A reasonable time is allowed for exposure in the open market;
(4) 
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 contract; and
(5) 
The rental amount represents the normal consideration for the property leased unaffected by special fees or concessions granted by anyone associated with the transaction.
(b) 
No business site lease shall be approved for less than the present fair annual lease value as set forth in the appraisal, except as follows:
(1) 
The lease is in the development period;
(2) 
The Authority is providing an incentive for business to locate on business site lease land, and must provide lease concessions, lease improvement credits, and lease abatements to attract such businesses; or
(3) 
The Authority, in its discretion, waives such requirement and stipulates less than the present fair annual lease value because such action is in the best interest of the Tribe or for any other reason, including, without limitation, because the Tribe has a substantial membership interest in the tenant or lessee entity under a lease or derives a substantial economic benefit from a sublease given pursuant to a lease that is otherwise in conformity with this ordinance.
(c) 
A business site lease may be structured at a flat lease rate.
(d) 
A business site lease may be structured at a flat lease rate plus a percentage of gross receipts, if the lessee is a business located in a shopping center or mall, or the lessee generates over $1,000,000 annually in gross receipts.
(e) 
A business site lease may be structured based on a percentage of gross receipts or based on a market indicator.
(f) 
A business site lease must specify the dates on which all payments are due.
(g) 
A business site lease must specify that the lessee shall make payments directly to the Authority.
(h) 
Unless otherwise provided in the business site lease, payments may not be made or accepted more than one (1) year in advance of the due date.
(i) 
A business site 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.
(j) 
Business site leases for terms of less than five (5) years 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.
(k) 
A business site lease may be amended to allow for lease rate adjustments.
(l) 
The Authority shall keep written records of the basis used in determining the fair annual lease value, as well as the basis for adjustments, as applicable. These records shall be presented to the lessee for its review and acceptance or non-acceptance and included in any lease file.
[History: Tribal Act #20-38.3291, enacted by Tribal Council in Special Session on October 28, 2020.]
Unless exempted from this requirement under this ordinance, the Authority shall not approve a business site lease until the proposed lessee has completed the environmental review process under Part 6 of this ordinance. Leases approved and executed without complying with this section, unless exempted, shall be null and void.
[History: Tribal Act #20-38.3291, enacted by Tribal Council in Special Session on October 28, 2020.]
(a) 
A lessee shall provide insurance necessary to protect the interests of the lessor and in amounts sufficient to protect all insurable improvements on the premises.
(b) 
The insurance may include, but is not limited to, property, liability or casualty insurance or other insurance as specified in the business site lease.
(c) 
The lessor and the United States may be identified as additional insured parties.
(d) 
The Authority may waive the requirements of § 915(a) through (c) in its discretion, and by entering into a lease on different terms than as set forth in this § 914, the lease will control.
[History: Tribal Act #20-38.3291, enacted by Tribal Council in Special Session on October 28, 2020.]
(a) 
Unless waived in writing by the Authority in accordance with this ordinance, the lessee shall obtain a satisfactory performance bond in an amount sufficient to secure the contractual obligations of the lease. Such bond shall be for the purpose of securing the lessee's contractual obligations under the business site lease, shall be made payable to the Tribe and shall be deposited with the Authority, and may guarantee:
(1) 
The annual lease payment;
(2) 
The estimated development cost of improvements; and
(3) 
Any additional amount necessary to ensure compliance with the lease.
(b) 
The performance bond must require the surety to provide notice to the Tribe at least sixty (60) days before cancellation of the bond. Failure to provide a substitute performance bond is a violation of the lease. The Authority may waive the bond requirement, or reduce the amount, in its discretion, because such action is in the best interest of the Tribe or for any other reason, including, without limitation, because the Tribe has a substantial membership interest in the tenant or lessee entity under a lease or derives a substantial economic benefit from a sublease given pursuant to a lease that is otherwise in conformity with this ordinance. The Authority shall maintain written records of waivers and reductions.
(c) 
The performance bond may be in one (1) of the following forms:
(1) 
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) 
Negotiable Treasury securities; or
(4) 
Surety bond issued by a company approved by the U.S. Department of the Treasury.
[History: Tribal Act #20-38.3291, enacted by Tribal Council in Special Session on October 28, 2020.]
All business site leases may require the lessee to exercise due diligence and reasonable commercial efforts, subject to force majeure and lessor interference, to complete construction of any improvements within the schedule specified in the business site lease, if applicable.
(a) 
The lessee, at the 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:
(1) 
A plan that describes the type and location of any improvements to be built by the lessee; and
(2) 
A general schedule for construction of the improvements.
(b) 
The lessee shall provide the Authority 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 Authority or otherwise required in the business site lease, the lessee shall further provide the Authority, in writing, an updated schedule for construction.
(d) 
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 Part 5 of this ordinance, unless the requirements of this § 917 are waived by the Authority as provided in § 917(i) below.
(e) 
Improvements to the premises shall become the property of the Authority unless otherwise provided for in the business site lease. If improvements will be removed, the business site lease may specify the maximum time allowed for such removal.
(f) 
A lessee may develop equity value in the improvements, and sell its interest in the business site lease based on the equity value. The lessor shall have a right of first refusal to purchase the lessee's interest in the lease unless the terms of the lease provide otherwise.
(g) 
The business site lease may provide that at expiration, cancellation or termination of the lease, the lessor shall purchase improvements to the premises at fair market value.
(h) 
Improvements may be subject to taxation by the Tribe, except as otherwise set forth in the lease.
(i) 
The Authority may waive the requirements set forth in § 917(a) through (h), in its discretion, because such action is in the best interest of the Tribe or for any other reason, including, without limitation, because the Tribe has a substantial membership interest in the tenant or lessee entity under a business site lease or derives a substantial economic benefit from a sublease given pursuant to a lease that is otherwise in conformity with this ordinance, and such waiver shall not constitute a cancellation or nullity of the lease.
[History: Tribal Act #20-38.3291, enacted by Tribal Council in Special Session on October 28, 2020.]
(a) 
Subleases, assignments, amendments or encumbrances of any business site lease shall be by written consent of the Authority and lessee, unless otherwise provided herein.
(b) 
The business site leases may authorize subleases and assignments, in whole or in part, without approval from the Authority, provided a copy of the sublease or assignment is provided to the Authority and the following conditions, where applicable, are met and stated in the business site lease:
(1) 
There is no event of default under the business site lease or this ordinance;
(2) 
Any restrictions and use limitations on the use of the premises shall continue to apply to any subtenant or assignee;
(3) 
The proposed assignee or sublessee submits a current financial statement showing financial adequacy; and
(4) 
The lessee shall not be relieved or released from any of its obligations under the business site lease, unless a full assignment of the lease is made and the lease provides for a full release of the lessee from its obligations thereunder.
This § 918(b) in no way relieves the parties from carrying out their duties under the business site lease, which may contain additional restrictions and conditions.
(c) 
The business site lease may authorize encumbrances to the leasehold interest for the purpose of financing to develop and improve the premises subject to approval by the Authority.
(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 of the Authority 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 Authority is required, provided the purchaser agrees in writing to be bound by all terms and conditions of the lease.