HomeMy WebLinkAbout1999-314
.I
.
~.
,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO.
1999-314
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO, APPROVING A CONTRACT AND PROMISSORY NOTE WITH THE SAN
MANUEL BAND OF MISSION INDIANS TO PROVIDE FIRE PROTECTION SERVICE TO
THEIR TRIBAL LANDS.
WHEREAS, The San Manuel Band of Mission Indians (Tribe) and the City of San
Bernardino wish to enter into a binding agreement for fire protection services;
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS
SECTION I. The Mayor or her designee is hereby authorized and directed to execute an
Emergency Services Agreement and a Promissory Note and Security Agreement, a copy of which
is attached and incorporated herein as Attachment A and B respectively.
SECTION 2. Said Agreement shall be for fire protection services, including 91 I response,
emergency medical advanced life support, for the term of July I, 1999 through June 30, 2006, with
potential renewals for successive five year terms.
SECTION 3. Compensation for the first seven year term shall be inclusive of the Tribe
purchasing all fire apparatus delineated in Exhibit A to said Agreement and the purchase of$69,500
in ancillary equipment and transfer of title and ownership of said apparatus and equipment to City.
SECTION 4. The authorization to execute the above referenced Agreement and
Promissory Note is rescinded if they are not executed within sixty (60) days of the passage of this
resolution.
1
.'
1999-314
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO, APPROVING A CONTRACT AND PROMISSORY NOTE WITH THE SAN
MANUEL BAND OF MISSION INDIANS TO PROVIDE FIRE PROTECTION SERVICE TO
THEIR TRIBAL LANDS.
I HEREBY CERTIFY that the foregoing resoluti~n was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a ~:~:larmeeting thereof, held on the
6th day of Decm~6009, by the following vote, to wit:
Council Members: AYES
ESTRADA x
LIEN x
MCGINNIS x
SCHNETZ x
SUAREZ x
ANDERSON x
MILLER x
ABSTAIN
ABSENT
NAYS
~~ CC(..<.lt-k
Rachel Clark, City Clerk
The foregoing resolution is hereby approved this _ day of December, 1999.
Approved as to form
and legal content:
dith Valles, Mayor
ity of San Bernardino
JAMES F. PENMAN,
City Attorney
25
26 By: '
27
28
Idcmlreso.sanmanuel. fire]
2
'.
1999-314
EMERGENCY SERVICES AGREEMENT
This Agreement is made and entered into in San Bernardino, California, by and between the
San Manuel Band of Mission Indians, a federally recognized Indian tribe having an address at 26524
Indian Service Road, Highland, California, ("Tribe") and the City of San Bernardino, having an
address at 300 North "D" Street, San Bernardino, California ("City"), effective as of July I, 1999.
RECITALS
WHEREAS, Tribe is a federally recognized Indian tribe with lands near the boundaries of City over
which it exercises governmental jurisdiction ("Tribal lands"); and
WHEREAS, the Tribe's General Council has determined that it is in the best interest of the tribal
government, for the purpose of ensuring adequate emergency services to the Reservation, that the
Tribe enter into this Agreement; and
WHEREAS, it is the intent of the parties that emergency services (as defined herein) be furnished
by City to Tribe with respect to Tribal lands, on the terms and conditions contained herein;
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
I. City will furnish fire protection services, including 911 response, emergency medical
advanced life support ("Emergency Services") to Tribe during the term of this
Agreement on a 24-hour a day, as needed basis.
2. City will furnish toTribe fire cause and origin determination services, including
investigatory services, to the same extent it provides such services within its own
boundaries.
3. City will cooperate with and work with Tribe at Tribe's request in developing fire
protection planning and related services, including but not limited to planning
services with regard to the safe evacuation of buildings on Tribal Lands, and
preventative engineering and related services. Tribe agrees to provide City with
copies of building plans and specifications to the extent necessary to facilitate such
planning and preventative services.
4. City shall submit to Tribe quarterly reports during the term of this contract of all fire
protection services provided during the preceding quarter. Quarterly reports will be
due within 45 days of the close of each calendar quarter.
HE/dcm[ agnnt3 .sanmanue!]
I
'.
1999-314
5.
This Agreement shall become effective as of the date set forth above and continue
in effect for a term of seven years. The term of this contract shall be automatically
renewed for successive five year terms unless either party gives the other party notice
of cancellation no sooner than the first day of the first month of the final year of the
term, and no later than the last day of the sixth month of the final year of the term.
Notwithstanding such term an,d cancellation provisions, the parties shall meet
once a year during the final quarter to review the extent to which the mutual
interests of the parties under this Agreement are being met as anticipated, and
shall negotiate in good faith to revise the Agreement for the remainder of the
term in the event modifications are reasonably required to meet such interests
on a fair and equitable basis.
6.
In consideration for the promises and services set forth in this Agreement for the first
seven year term, Tribe agrees to recompense City by purchasing certain fire apparatus
for the City as delineated in Exhibit A. In addition, Tribe agrees to purchase for City
ancillary equipment associated with said apparatus as approved by City with a dollar
amount not to exceed $69,500. Tribe shall complete the purchasing process no later
than 60 days from initiation of this contract. Delivery of apparatus and equipment
will be consistent with vendor and manufacturer's availability. Compensation and
payment to City for each successive five year term shall be negotiated and agreed to
by the parties no later than the sixth month of the [mal year of the then-current term.
7.
Title and ownership of apparatus and equipment shall be given to City by Tribe
immediately upon delivery of the apparatus and equipment. If this contract is
terminated prior to the end of the first seven year term, a prorated reimbursement of
the value of said apparatus and equipment shall be made by City to Tribe subject to
a repayment schedule agreed to by both City and Tribe which shall not extend beyond
the original ending date of the first seven year term. To the extent permitted by
current law, Tribe and City (through its Fire Chief and as approved by the Mayor)
agree to work together so that said apparatus and/or equipment reflects the Tribe's
efforts and contributions in the acquisition of same with appropriate signage such as
"Provided by the San Manuel Band of Mission Indians".
8.
The City agrees to indemnify and hold harmless Tribe and its officers, employees,
agents, and members, and Tribe agrees to indemnify and hold harmless City and its
officers, employees, agents and volunteers, from any and all claims, actions, losses,
damages or liability arising out of the other's performance or other obligations under
this Agreement, provided in the event either party is found to be comparatively at
fault for any claim, action, loss, or damage which results from their respective
performance or obligations under this Agreement, the party so at fault shall
indemnify the other to the extent of its comparative fault.
HE/dcm[ agrmt3 .sanmanuel]
2
1999-314
9.
Without in any way affecting the indemnity provisions herein and in addition thereto,
City shall secure and maintain throughout the term of this Agreement the following
types of insurance or self-insurance with limits as shown:
A) Workers Compensation, including employers' liability with $250,000 limits
covering all persons providing services on behalf of the City and all risks to
such persons under this Agreement.
B) Comprehensive general and automobile liability insurance for any vehicle to
be used in connection with fire protection services, having combined single
limits for bodily injury and property damages of not less than one million
dollars; and
C) Errors and omissions and professional liability policies on an occurrence
basis of no less than $10 million dollars.
10. All policies of insurance or self-insurance shall name Tribe as an additional insured.
II. City shall require the carriers or self-insurance of the above insurance policies to
waive all rights of subrogation against Tribe and its officers, employees, agents,
representatives and members.
12. All policies above are to be primary and non-contributory with any other insurance
or self-insurance programs carried or administered by Tribe.
13. Upon execution of this Agreement, City shall furnish Tribe with certificates of
insurance or self-insurance evidencing the foregoing coverage, including all
applicable endorsements, which certificates shall provide that such insurance shall
not be terminated or expire except with thirty days written notice to Tribe, and City
shall maintain such insurance throughout the term of this Agreement and shall
provide new certificates whenever such policies are amended or renewed.
14. The insurance provisions herein shall be subject to annual review by the parties and
the terms modified, as reasonable need shall require. Any disputes with respect to
such' modifications shall be resolved in accordance with Section 15 below.
15. Any disputes under this Agreement shall be resolved first by attempting to meet and
confer to resolve such differences on an amicable basis. If attempts to do so have
failed after sixty days from the date such meeting was first requested with regard to
a specific issue, a party may initiate judicial proceedings in accordance with
Paragraph 19 herein.
HE/dcm[ agrmt3 .sanmanuel]
3
1999-314
16. City acknowledges and agrees to comply with any and all applicable tribal, federal,
and state laws with regard to any pt;rformance taking place on Tribal Lands.
17. Any and all notices required or otherwise provided for under this Agreement shall be
served by certified mail, return receipt requested, or by overnight mail delivery for
which a signature is required and shall be addressed as follows:
A.
San Manuel Tribal Administration
P.O. Box 266
Patton, CA 92369
Attn: Tribal Chairperson
B.
Mayor
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418
Either party may change the name or address for notice by sending a written
request in the manner provided herein.
18. City shall and at all times be and remain an independent contractor under this
Agreement, and Tribe shall have no control over the employment, discharge,
compensation of or services performed by City's employees or agents. City and its
employees and agents shall have no authority to act on behalf of Tribe, nor to operate,
manage, or otherwise be involved in the gaming or other activities at Gaming
Establishment.
19. Subject to the provisions of this Section 19, Tribe hereby grants to the City a limited
waiver of its immunity from unconsented suit subject to the conditions set forth
below.
A. Claims authorized under this waiver are limited to claims arising under this
Agreement and no other.
B. This waiver shall only run in favor of the City and its successors in interest.
C. The claim is made in a detailed written statement to Tribe stating the specific
action or discontinuance of action by Tribe which would cure the alleged
breach or non-performance, or the sum of money claimed to be due and
owing from Tribe to the City by reason of such specific breach or non-
performance, and Tribe shall have sixty (60) calendar days to cure such
breach or non-performance or to make such payment before judicial
proceedings may be instituted.
D. Prior to initiation of judicial proceedings the parties shall meet and confer in
an effort to resolve any dispute arising under this Agreement. If the parties
fail to resolve the dispute following such meet and confer, a claim may be
filed in accordance with the provisions set forth below.
HE/dcm[agrmt3.sanmanuel] 4
1999-314
E. In the event there is a claim which is not resolved between the parties, any
court proceeding under this section shall be commenced within the later of
two (2) years after the claim accrues or one (1) year after the claim is
discovered, but in no event later than two (2) years from the date the claim
is first submitted to the Tribe, or such claim shall be forever barred. The
waiver granted herein shall commence on the execution date of this
Agreement and shall continue for two (2) years following the expiration,
termination, or cancellation of this Agreement (whichever is later), except the
waiver shall remain effective for any proceedings then pending, and all
appeals therefrom.
F. Any claim authorized under this section shall be made for specific
performance, injunctive relief or money damages not to exceed the monetary
value which is the subject of this Agreement. In no event shall this waiver
apply to punitive or consequential damages.
G. Tribe waives its sovereign immunity from a judgment or order consistent
with the terms and provisions of this Paragraph 19, which is final because
either the time for appeal thereof has expired or the judgment or order is
issued by a court having final appellate jurisdiction over the matter. Tribe
consents to the jurisdiction of the United States District Court for the Central
District of California and any court having appellate jurisdiction thereover,
consistent with the terms and conditions of this Section 19. None of the
parties shall object to the jurisdiction or venue of said federal court. In the
event the federal court does not have jurisdiction, Tribe will consent to the
jurisdiction of any court of competent jurisdiction in the State of California,
County of San Bernardino. Without in any way limiting the generality of the
foregoing, Tribe expressly authorizes any governmental authorities who have
the right and duty under applicable law to take any action authorized by any
court, to take such action to give effect to any judgment entered against Tribe
in accordance with this waiver.
H. The foregoing limited waiver of sovereign immunity is expressly conditioned
on the parties' agreement herein that the only assets, including property and
funds, which shall be available to satisfy any enforcement proceedings or
judgment in connection with this Agreement shall be limited to the income
or assets of Tribe, except that no interest in land, whether tangible or
intangible, legal or beneficial, vested or contingent, or any occupancy or other
rights or entitlements therein or related thereto, shall be subject to attachment,
execution, lien, judgments or other enforcements or satisfaction of any kind,
in whole or in part, with respect to any claim of the City against Tribe on any
basis whatsoever. No assets of any kind whatsoever of any member of the
Tribe, whether tangible or intangible, vested or contingent, shall be available
HE/dcm[agrmtJ.sanmanuel] 5
1999-314
to satisfy any judgment or subject to attachment, execution, lien, or other
enforcement or satisfaction of any kind with respect to any claim of the City
against Tribe.
1. Except as ordered by a court of competent jurisdiction, all parties shall bear
their own costs, including attorneys' fees, in connection with any judicial
proceedings authorized under this Agreement. The parties expressly agree
that this provision shall survive the termination, for any reason, or expiration
of this Agreement. The costs, salary and expenses of the City Attorney and
members of his office in enforcing this Agreement on behalf of the City shall
be considered as "attorneys' fees" for the purposes ofthis paragraph.
20. Tribe shall submit this Agreement to the Secretary of the Interior and the Bureau of
Indian Affairs (BIA) within 30 days after the parties' execution of the Agreement.
Upon receipt of such written approvals of the Secretary of the Interior and the BIA,
Tribe shall provide City with copies of same. Tribe shall not withdraw said submittal
to the Secretary of the Interior and/or the BrA without prior written 10 day notice to
City. If such submittal is withdrawn or is disapproved, City shall retain said fire
apparatus and ancillary equipment and shall have the option to either reimburse
Tribe for same pursuant to the provisions of Paragraph 7 herein or to complete
performance of its fire protection services to Tribe for the remainder of the first
seven year term.
21. In the event that any provision of this Agreement is held to be void or unenforceable,
except for the waiver of sovereign immunity set forth in Paragraph 19, the remaining
provisions shall remain in full force and effect.
San Manuel Band
of . ssion Indians
City of San Bernardino
Deron Marquez
Tribal Chairman
), .
, t{{.cz~
ES F. PENMAN
ty Attorney
HE/dcm[ agrmt3 .sanmanuel]
6
1999-314
Exhibit A
Type of Apparatus Unit Cost Total
Three (3) Pierce $281,880.00 $ 845,640.00
Dash 2000 Pumpers
One (1) Pierce Saber $345,724.00 $ 345,724.00
Hazardous Materials
Apparatus
Sub-Total $1,191,364.00
.
Less Manufacturer's - $ 39,412.00
Prepayment Discount
If Desired.
Total After Potential $1,151,952.00
Discounts.
DEe-OS-99 10:19
+3105538455
P02
R-89T
Job-498
1999-314
"
PROMISSOflV NOTR AND SRCIJRITY AGflRRMRNT
December _,1999
FOR VALUE RECENED. the City of San Bernardino, a Califomia chartered City ("City"),
promises to pay to the order of the San Manuel Band of Mission Indians, a federally recognized
Indian Tribe, having an address at 26524 Indian Service Road, Highland, California (the "Tribe''),
the principal sum of $1,221,452.00, together with interest at the rate of Ten Percent (10%) per
annum on the unpaid balance until paid in full, under the following terms and conditions:
1. Concurrently with the execution of this Note, City and Tribe entered into a
Agreement for a term of seven years, from July 1, 1999 to June 30, 2006, wherein Tribe agreed to
purchase and transfer to City cenain fire fighting equipment described therein valued at
$1,221,452.00 ("Equipment") and City agreed to provide fire and emergency services to Tribe's
reservation. The parties agreed to submit the agreement to the Secretary of the Interior for approval
under 25 V.S.C. 981, although the legal requirement that such approval must be obtained is an
unsettled question oflaw.
2. For the purposes of this Note only, City and Tribe agree that the value of services
provided to the Tribe by City each month the Agreement is in effect shall be $14,541.09 and that the
principal due under this Note shall be reduced for each month in which services are provided by said
amount.
3. City and Tribe agree that it is in their mutual interest that the transfer of the Equipment
to the City and the provision of fire and emergency services to the Tribe commenCe immediately,
without awaiting a decision of the Secretary regarding whether or not to grant the request for Section
81 approval. City has reserved to itself an option in the Agreement to terminate the Agreement in
the event that Section 81 approval is not obtained. Should City choose to exetcise its option to
tenninate, City will then repay Tribe for the prorated cost of the Equipment over the period of time
from the date oftennination to June 30,2006.
4. In order t9 secure the City's agreement to repay the Tribe for the Eqnipment in the event
of termination, City hereby grants to Tribe a security interest in the Equipment, and agrees not to
create or caliSe to be created any liens Or encwnbrances on the Equipment. This security agreement
shall continue until the repayment obligation has been s'ltisfied Or the option to terminate the
Agreement has been waived under the ten11S therein. City shall execute all documents required to
perfect or record Tribe's security interest, as Tribe shall reasonably request, including but not limited
to appropriate documents with the Department of Motor Vehicles and wlder the California
Commercial Code. Tribe shall execute all documents required to release said security interest upon
the City's repayment of the prorated cost of the Equipment referenced in Paragraph 3.
BIC:tCLlE/VToSAN-}'lANWGR'FlRE.'NOTE.OOI
Page t
DEe-OS-99 10: 19
+3105538455
1999-314
P.03
R-897
Job-498 .'
5. On or before the first day of the month folIowing the month in which the termination
notice is given to Tribe by City under the Agreement, City will begin making monthly payments of
the Principal and Interest to Tribe in equal monthly payments, each of which will be due on the 1"
of the month. Payments will be applied first fa outstanding Interest, then TO Principal. All payments
will be made at Tribe's address set fonh above. Interest shall be computed from the date payment
for the Equipment was made by Tribe, and shall be at the rate of 10% per annum.
6. [f any installment or other payment required under this Note is not paid when due, and
such default is not cured within fifteen (15) days after the due date of such payment, the entire
principal amount outstanding hereunder and accrued interest thereon shall at once become due and
payable, at the option ofthe Tribe. The Tribe may exercise its option to accelerate upon any default
by City in accordance with the foregoing regardless of any prior forbearance. In the event of any
default in the payment of this Note as aforesaid, City shall pay the Tribe its expenses and costs
inclmed in connection therewith, including, without limitation, reasonable attorney's fees, and any
costs, expenses and attorney's fees incurred if Tribe is the prevailing parry in connection with any
legal proceedings. Tribe shall pay City its expenses and costs incWTed in connection with any legal
proceedings jf City is the prevailing patty, including without limitation, reasonable attorneys' fees
and costs. The costs, salary and expenses of the City Attorney and members of his office shall be
considered as the City's "attorneys' fees" for the purposes of this paragraph. After any default under
this Note, the Tribe may accept panial payment of the sums then due under this Note without
prOljudice to its right ro collect the balance of the sums then due, and enforce this Note without
prejudice to any other right or remedy the Tribe may have.
7. If any installment under rhis Nore is not received within fifteen (15) days after the
installment is due, City shall pay to Tribe a late charge equal to two percent (2%) of such installment
for the purpose of defraying the additional costs and expenses of collection, it being impracticable
or extremely difficult ro fix the acnlal costs and expenses to the Tribe occasioned thereby. Such late
charge shall be immediately due and payable, and payment thereof shall be a condition precedent
to curing any default hereunder. During the existence of any such default, the Tribe may apply
payments received on any amount due hereunder or any other instrument evidencing or securing
payment ofmis Note, as tbe TJibe may detemline in its discretion.
8. This Note may be prepaid, in whole or in part, at any time, without premium or penalty,
provided that, in the case of a prepayment in full, all accrued interesl throllgh the date of prepayment
and all other charges due hereunder shall be paid. Any partial prepayment will not postpone the due
dates of subsequent monthly installments.
9. This Note shall be governed by the law of California. City represents and warrants that
it is authorized to enter into this Note. In the event any provision contained in this Note conflicts
wirh applicable law, such conflict shall not affect other provisions of this Note which can be given
effect without the conflicting provisions. To this end, the provisions of the Note are declared to be
severable. .
8tC.'\CLJEN1'&t.v~MAMAGA'..~'lJ/.fIvOl'f.." 001
Page 2
0~C-06-99 10:19
+3105538455
1999-314
P04
R-89T
Job-49B
. .
10. Any notice to City required or authorized herein shall be in writing and (I) delivered
personally, or (ii) sent by first-class mail, postage prepaid, addressed to City at its notice address
stated below, or such other address designated by written notice TO City as above provided. All
notices shall be deemed received upon receipted personal delivery or, if mailed, upon the earlier of
(I) actual receipt, or (ii) three (3) business days after being placed in the mail. If mOre than one
perSOll or entity has signed this Note as City, notice sent to City's notice address shall constitute
notice to all such persons or entities.
City's Notice Address:
Mayor
City of San Bernardino
300 North "D" Street
San Bernardino, California 92418
Copy TO:
City Anorney
City of San Bernardino
300 North "D" Street
San Bernardino, California 92418
EXECUTED AND DELIVERED on the date first written above.
By:
Name:
Title:
L BAND OF MISSION INDIANS
. ~~< ?uf'6
By:
Name: Deron Marque2
Title: Tlibal Chairman
Appr ved as to form and legal content:
ES F. PENMAN
Attorney
alc 'CLJEN'f'ISAN.MANlAGJ(IFlkEf\JOTt-~.(1fI1
Page 3