Resolution No. SI-R23-016: Act Rescinding SI-R20-022 and SI-R22-027 and Authorizing Revised Second Amended Business Lease with San Ildefonso Services, LLC for the Totavi Gas Station and Convenience Store

At a duly called meeting of the Council of San Ildefonso Pueblo on the 15th day of December, 2023, the following Resolution was adopted:

WHEREAS, the Pueblo previously enacted a law titled "Act to Transfer Ownership and Operation of C-Stores to San Ildefonso Services, LLC"; and,

WHEREAS, the Pueblo and San Ildefonso Services, LLC entered into the Business Lease (the "Business Lease") for the Totavi Gas Station and Convenience Store dated May 9, 2018, and the term of such lease began on July 1, 2017; and,

WHEREAS, the transfer of ownership and operation of the Totavi and White Rock C-Stores became effective on July 1, 2017; and,

WHEREAS, on or about March 22, 2019, the Pueblo and San Ildefonso Services, LLC amended the Business Lease to correct the acreage of the leased premises and to update the date of the Surveyor's Certificate; and

WHEREAS, the Business Lease and its accompanying amendment were both approved by the Superintendent, Northern Pueblo Agency, Bureau of Indian Affairs (BIA), on March 27, 2019, a copy of which is attached hereto as Attachment A; and,

WHEREAS, on or around November 25, 2020, the Council and SIS further amended the Business Lease (the "Second Amended Business Lease") by Council Resolution No. SI-R20-022, whereby SIS LLC secured a loan for purposes of making upgrades and other improvements to the Totavi Gas Station and Convenience Store, and the lease was extended for an additional five years through September 30, 2027; and,

WHEREAS, a fully executed copy of the Second Amended Business Lease cannot be found and there is no record that it was recorded with the Bureau of Indian Affairs ("BIA") for review and approval; and,

WHEREAS, the Council and SIS executed and approved a Third Amended Business Lease for the Totavi Gas Station and Convenience Store by Council Resolution No. SI-R22-027, increasing the acreage of the leased area and removing Secretarial and sureties approval for subleases, assignments, management, agreements, or transfers of the Business Lease, and SIS submitted it to BIA for review and approval; and,

WHEREAS, upon submission of the Third Amended Business Lease to BIA, BIA informed SIS that it could not approve it without receiving and approving the Second Amended Business Lease for the Totavi Gas Station, which cannot be back dated and for which a Tribal Council resolution must accompany the submission to BIA; and,

WHEREAS, to satisfy BIA's review and approval process, and in the absence of the Second Amended Business Lease approved by SI-R20-022, Council wishes to rescind Council Resolutions No. SI-R20-022 and No. SI-R22-027, and to approve this Revised Second Amended Business Lease for the Totavi Gas Station (the "Revised Second Amended Business Lease") which incorporates and combines the terms initially approved by Council in SI-R20-22 and SI-R22-027; and,

WHEREAS, based on its previous decisions, the Council still desires to amend the Business Lease for the Totavi Gas Station and Convenience Store to extend the term to September 30, 2027; and,

WHEREAS, based on its previous decisions, the Council still desires to further amend the Business Lease to expand the acres included in the leased area as described in the Revised Second Amended Business Lease which is attached hereto as Attachment B; and,

WHEREAS, the Business Lease, as amended, prohibits subleases, assignments, management agreements, or transfers of the Business Lease or any rights to or interest in the Business Lease, without the written approval of the Pueblo, the Secretary and sureties, if any; and,

WHEREAS, based on its previous decisions, the Council still desires to amend Paragraph K, Sublease, Assignment, Management Agreement, Transfer of the Business Lease, as amended, to only require approval by the Pueblo and to remove approval of the Secretary and sureties, if any; and,

WHEREAS, based on its previous decisions, the Council still desires San Ildefonso Services, LLC (SIS) to diversify the services provided by the business on the property including all lawful business uses as described in the Revised Second Amended Business Lease.

NOW THEREFORE BE IT RESOLVED THAT, the Council hereby enacts the attached law entitled the "Act Authorizing the Revised Second Amended Business Lease with San Ildefonso Services, LLC for the Totavi Gas Station and Convenience Store"; and,

BE IT FINALLY RESOLVED, that the Pueblo de San Ildefonso Council hereby approves and adopts this Resolution in accordance with the requirements of the Revised Second Amended Business Lease, according to published Council procedures, and authorizes and directs the Governor, or his designee, to take such actions as deemed necessary to carry out the intent of this Resolution.

CERTIFICATION

The foregoing resolution was duly voted upon by the Council on December 15, 2023, at a meeting with a vote of 6 in favor, 0 opposed, 2 abstaining and 2 absent (Governor presiding and not voting) pursuant to the authority vested in the Council by the Agreement of the Pueblo de San Ildefonso.

________________________________

Irene Tse-Pe, Council Secretary

COUNCIL REPRESENTATIVE SPONSOR(S): Council Representatives

DELIVERY OF THE RESOLUTION TO THE GOVERNOR:

Resolution No. SI-R23-016 was presented to the Governor of the Pueblo de San Ildefonso on the 15^th day of December, 2023, pursuant to the Governing document of the Pueblo de San Ildefonso ("Agreement"), GOVERNOR, Sec. 4(c), and will become effective after signature by the Governor or veto override by the Council.

Irene Tse-Pe, Council Secretary

GOVERNOR'S ACTION:

{ X } APPROVED

{ } VETO - RETURNED TO COUNCIL WITH EXPLANATION:

On this 22^nd day of December, 2023.

Christopher A. Moquino, Governor

Presented by the Governor to the Council on the _______ day of ________________, 2023.

COUNCIL'S ACTION:

Override of Governor's veto:

{ } YES

{ } NO

CERTIFICATION

The foregoing resolution was duly voted upon by the Council on _________________, 2023, at a meeting with a vote of ______ in favor, _____ opposed, _____ abstaining and _____ absent (Governor presiding and not voting) pursuant to the authority vested in the Council by the Agreement of the Pueblo de San Ildefonso.

Irene Tse-Pe, Council Secretary

ACT AUTHORIZING THE REVISED SECOND AMENDED BUSINESS LEASE WITH SAN ILDEFONSO SERVICES, LLC FOR THE TOTAVI GAS STATION AND CONVENIENCE STORE

Section 1.1. Short Title

This enactment shall be known as "Act Authorizing the Revised Second Amended Business Lease with San Ildefonso Services, LLC for the Totavi Gas Station and Convenience Store" ("Act").

Section 1.2. Definitions

(a) "Agreement" means the Pueblo de San Ildefonso Governing Agreement.

(b) "Business Lease" means the Business Lease for the Totavi Gas Station and Convenience Store entered into on May 9, 2018, between the Pueblo de San Ildefonso and San Ildefonso Services, LLC and all amendments thereto.

(c) "Council" means the Pueblo de San Ildefonso Council.

(d) "USDA Loan" means the loan guaranteed by the U.S. Department of Agriculture that San Ildefonso Services.

(e) "Pueblo" means the Pueblo de San Ildefonso.

(f) "SIS LLC" means San Ildefonso Services, LLC, a single member limited liability company organized under tribal law and wholly owned by the Pueblo.

(g) "Totavi Convenience Store" means the Totavi Convenience Store and Gas Station located within the external boundaries of the Pueblo.

Section 1.3. Purpose

The purpose of this Act is to authorize the Revised Second Amended Business Lease. The Revised Second Amended Business Lease Totavi Gas Station and Convenience Store (the "Revised Second Amended Business Lease") sets out the second amended terms to the Business Lease, including the extension of the term and incorporating a payment schedule for the extended term; the expansion of the land included in the leased area; and, removing language prohibiting subleases, assignments, management agreements, or transfer of the Business Lease or any rights to interest in the Business Lease without the written approval of the Secretary and sureties to only require approval by the Pueblo.

Section 1.4. Findings

The Council hereby finds and declares that:

(a) SIS LLC is chartered under tribal law as a single member limited liability

company wholly owned by the Pueblo; and

(b) On June 21, 2017, the Pueblo de San Ildefonso enacted a law entitled "Act to Transfer Ownership and Operation of C-Stores to San Ildefonso Services, LLC," and

(c) To carry out the Act, the Pueblo and SIS LLC effected the transfer of ownership and operation of the Totavi and White Rock C-Stores on July 1, 2017; and

(d) Under Article VIII of its Articles of Organization, San Ildefonso Services LLC has authority to "buy, sell, lease and otherwise acquire and maintain buildings, offices, shops and other appurtenances proper and necessary for the carrying on of said business," and

(e) The Pueblo and SIS LLC entered into the Business Lease (the "Business Lease") for the Totavi Gas Station and Convenience Store dated May 9, 2018, and the term of such lease began on July 1, 2017; and

(f) On or about March 22, 2019, the Parties amended the Business Lease to correct the acreage of the leased premises and to update the date of the Surveyor's Certificate; and

(g) The Business Lease and its accompanying amendment were both approved by the Superintendent, Northern Pueblo Agency, Bureau of Indian Affairs (BIA), on March 27, 2019; and

(h) On or around November 24, 2020, the Parties further amended the Business Lease (the "Second Amended Lease") whereby SIS LLC secured a USDA loan for purposes of making upgrades and other improvements to the Totavi Gas Station and Convenience Store, and the Business Lease was extended for an additional five years through September 30, 2027; and

(i) The term of the USDA Loan extends beyond the current term of the Business Lease.

(j) The term of the Business Lease cannot expire during the term of the USDA Loan.

(k) The term of the Business Lease shall be extended through September 30, 2027, to ensure that the term of the Business Lease does not expire during the term of the USDA Loan.

(l) A fully executed copy of the Second Amended Lease cannot be found and there is no record that it was recorded with BIA for review and approval.

(m) The annual rental payments for Year 3 through Year 5 specified in the Business Lease shall remain in full force and effect.

(n) The rental payments for Year 6 through Year 10 shall be in accordance with the following payment schedule:

(o) The acreage shall be expanded in the leased area as described in the Revised Second Amended Lease.

(p) Approval of the Secretary and sureties, if any, for subleases, assignments, management agreements, or transfer of the Business Lease or any rights to or interest in the Business Lease shall be removed and the only approval required shall be by the Pueblo.

(q) The Council, finds it in the best intertest of the Pueblo to authorize the Governor to negotiate and execute the Revised Second Amended Business Lease.

(r) All other terms of the Business Lease, as amended, shall remain in full force and effect.

Section 1.5. Council Authorizations and Waivers

(a) The Council has reviewed the proposed monetary compensation that must be paid under the Proposed Business Lease and has determined the amount to be satisfactory to the Pueblo, and the Council hereby waives valuation that may otherwise be required under the Code of Federal Regulations, and has determined that accepting such negotiated compensation and waiving valuation is in the best interests of the Pueblo.

(b) The Council has determined that it is in the Pueblo's best interest that no periodic review of the adequacy of compensation or adjustment be required for the Proposed Third Amended Business Lease.

(c) The Council has determined that it is in the Pueblo's best interest to waive the requirement of a performance bond or an alternative form of security that may otherwise be required under the Code of Federal Regulations, and further requests that the Bureau of Indian Affairs, Department of the Interior, defer to the Council's express waiver of such bond or security.

(d) The Council has determined that it is in the Pueblo's best interest to provide an express and limited waiver of its immunity from suit, subject to the limitations herein, only as to actions to enforce the Business Lease, as amended, or any settlement agreement reached in mediation under the Business Lease, as amended, provided that the Pueblo's limited waiver of sovereign immunity is granted only to San Ildefonso Services, LLC and not to any other individual or entity, and that the Pueblo de San Ildefonso Tribal Court shall have exclusive jurisdiction over any lawsuit brought pursuant to this limited waiver of immunity.

(e) The Council has determined that the Governor may execute said Business Leases, as amended, or any other certification required by federal or tribal law.

Section 1.6. Authority of Tribal Governor to Execute the Revised Second Amended Business Lease

The Council hereby authorizes and directs the Governor of the Pueblo to negotiate and execute a final Revised Second Amended Business Lease in substantially the same form as the attached proposed Revised Second Amended Business Lease consistent with this Act, make any revisions and amendments that may be necessary and required to support the execution of a final Revised Second Amended Business Lease, as amended, and execute any certification that may be required by federal or tribal law to support the execution of a final Revised Second Amended Business Lease.