Warm Springs Construction Enterprise (WSCE) Plan of Operation

WARM SPRINGS TRIBAL CODE
CHAPTER 625
PLAN OF OPERATIONS FOR THE WARM SPRINGS CONSTRUCTION ENTERPRISE

Table of Contents

I. IDENTITY
Section 1. Name
Section 2. Enterprise History
Section 3. Place of Business
Section 4. Definitions

II. PURPOSE, OBJECTIVES AND PRIORITIES

III. GENERAL POWERS

IV. MANAGEMENT

V. CONTRACTS, FINANCES AND REPORTS
Section 1. Contracts General
Section 2. Bank Accounts
Section 3. Budget and Financial Planning
Section 4. Accounting and Operating Reports
Section 5. Audit
Section 6. Tribal Member and Indian Preference
Section 7. Affirmative Action for Contractors and Subcontractors

VI. CAPITAL
Section 1. Sources of Funds
Section 2. Use of Retained Earnings
Section 3. Distribution of Proceeds

VII. FISCAL YEAR

VIII. LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 1. General
Section 2. Derivative Actions
Section 3. Indemnification in Certain Cases
Section 4. Procedure
Section 5. Advances for Expenses
Section 6. Rights Not Exclusive
Section 7. Insurance

IX. AMENDMENTS

WARM SPRINGS TRIBAL CODE
CHAPTER 625
PLAN OF OPERATIONS FOR THE WARM SPRINGS CONSTRUCTION ENTERPRISE

A SUBORDINATE ORGANIZATION FOR ECONOMIC PURPOSES CHARTERED BY THE TRIBAL COUNCIL OF THE CONFEDERATED TRIBES OF THE WARM SPRINGS RESERVATION OF OREGON PURSUANT TO ARTICLE V, SECTION 1 (E, O AND S) OF THE TRIBAL CONSTITUTION

I. IDENTITY

Section 1. Name. The legal name of this Tribal enterprise shall be Warm Springs Construction Enterprise, herein after referred to as Enterprise.

Section 2. Enterprise History. Tribal Construction was originally started in 1979, to enter the construction business and to become the general contractor for Tribal projects. The Tribal Council now deems it appropriate for this Enterprise to be chartered, and to provide construction services, both on and off of the Warm Springs Reservation, to contribute to the profits of the Tribes.

Section 3. Place of Business. The principal place of the business of this Enterprise shall be on the Warm Springs Reservation of Oregon.

Section 4. Definitions. Wherever used herein, and unless otherwise indicated, the following terms shall have the meanings indicated below:

1. “Business Plan” means a detailed written plan for the conduct of the business of this Enterprise, approved by the Secretary-Treasurer or other designated official and reviewed at least annually on the anniversary date of the resolution establishing this Enterprise and amended if necessary;
2. “Chief Operating Officer” (COO) means the individual designated with that title and duties by the Tribal Council, or authorized representative;
3. “Constitution” means the Constitution and By-laws of the Confederated Tribes of the Warm Springs Reservation of Oregon adopted pursuant to Section 16 of the Indian Reorganization Act;
4. “Council” means the Tribal Council of the Tribe;
5. “Interim Management Board” hereinafter referred to as the “Interim Board,” a 3- person Interim Board comprised of the Chief Operations Officer, the Secretary- Treasurer and the Tribal Chairman or his designee formed to temporarily oversee and direct the start-up and operations of this Enterprise until such time as the Interim Board deems that the Tribes’ Economic Development Corporation is established and fully functional and its’ officers are capable of assuming such management duties and functions;
6. “Management” means the person, persons, firm or firms employed by this Enterprise to provide management services;
7. “Member” means a duly enrolled member of the Tribe;
8. “Reservation” means the Warm Springs Reservation of Oregon;
9. “Secretary” means the Secretary of the Interior or authorized representative;
10. “Secretary-Treasurer” means the individual appointed as the Secretary-Treasurer of the Council pursuant to Article IV, Section 11 of the Constitution, or authorized representative;
11. “Tribe” means the Confederated Tribes of the Warm Springs Reservation of Oregon.

II. PURPOSE, OBJECTIVES AND PRIORITIES

This Enterprise is formed to carry out construction projects, both on and off of the Reservation, including but not limited to, such projects as: Heavy (road, bridge, water and sewer and other municipal facility construction); Commercial and Industrial (commercial and industrial facilities); and Residential housing construction. The purposes, objectives and priorities of this Enterprise are:

1. Engage in the construction business in accordance with the approved Business Plan of this Enterprise;
2. To finance, operate and maintain a well managed business and necessary facilities and equipment to operate in accordance with its Business Plan at a level of efficiency comparable to that of an efficient and well-run business within the general construction industry;
3. To provide construction management and construction services at competitive rates, consistent with maintaining high quality and making an appropriate profit for the Tribes;
4. To operate said business so as to secure an optimum economic return for the Tribe and to fund long-term growth and increase tribal wealth;
5. To provide Tribe and its members with employment opportunities and such social benefits as may flow there from;
6. To design, develop and implement programs to increase and enhance employment and skills of Tribal Members and to encourage contracting with members and affiliates in all phases of its industry;
7. To enter into limited waivers of the sovereign immunity of this Enterprise, provided that any such waiver shall not be deemed a waiver of the sovereign immunity of the Tribe or any of its other entities;
8. To conduct all operations in a manner consistent with Tribal laws and policies. This Enterprise shall at all times conduct its operations openly, honestly and professionally and shall manage its operations based upon the following three priorities: (a) The first priority is to earn a level of profit and economic return for the Tribe and its members comparable to that which an efficient and well-run business in the same industry would earn under a similar economic conditions so as to fund long term growth and increase tribal wealth; (b) The second priority is to provide Tribe and its members with employment opportunities and such social benefits as may flow there from; (c) The third priority is to provide Tribe and its members with education and training benefits and such social benefits as may flow there from.

III. GENERAL POWERS

This Enterprise, subject to any restriction contained in the Constitution and laws of the United States, the Tribes’ Corporate Charter, the Constitution of the Tribe, or in this Plan of Operations, shall do and perform every act and thing whatsoever which it shall deem necessary, expedient or advisable to carryout the purposes and objectives of this Enterprise and the provisions of this Plan of Operations.

Without limiting the generality of the foregoing, this Enterprise shall have the power to obtain capital from governmental agencies, and from one or more responsible financial institutions, individuals, or other entities, and to negotiate and enter into security agreements with such financial institutions, individuals, entities and governmental agencies for repayment thereof; to negotiate and execute contracts for management services and for other purposes; to construct, or cause to be constructed, to purchase, or cause to be purchased, to equip, or cause to be equipped, and to operate, or cause to be operated, business facilities suitable to its industry; to own, buy, sell or lease property; market its products and services; to exercise such further powers, not inconsistent with law, as may be necessary to the conduct of the business of this Enterprise. This Enterprise shall have the power to sue or be sued in courts of competent jurisdiction within the United States; but the grant or exercise of such power to sue and to be sued shall not be deemed a consent by the Tribes or by the United States to the levy of any judgment, lien, or attachment upon the property of the Tribe other than income or chattels specifically pledged or assigned.

IV. MANAGEMENT

The Interim Board shall be charged with the overall responsibility for management operations of this Enterprise. The Interim Board, on behalf of the Tribe, shall employ or contract with a qualified and experienced Construction General Manager, to carry out the purposes of this Enterprise. The Construction General Manager shall employ or contact with such individuals or entities as he/she deems appropriate to carry out the business of this Enterprise and perform such other duties and responsibilities and powers as shall be consistent with the purposes objectives and priorities of this Enterprise and the provision of this Plan of Operations.

The Construction General Manager may be delegated to the following specific duties, however, the listing of specific duties is not intended to restrict the authorities contained in the position description of the Construction General Manager or that are inherent in the management of this Enterprise: Delegate authority to responsible Enterprise staff, retaining overall responsibility for Enterprise operations; Represent this Enterprise by signature, title, and person; Review actions taken by the Enterprise staff; Bring mattes of major concern to the attention of the Interim Board; Authorize construction disbursements pursuant to this Enterprise budget; Negotiate and approve construction contracts; Provide financial and administrative control over this Enterprise’s daily operations; Ensure that this Enterprise’s staff complies with all applicable laws regulations, and policies.

V. CONTRACTS, FINANCES AND REPORTS

Section 1. Contracts General. The Interim Board may authorize the Construction General Manager to enter into any contract or execute or deliver any instrument in the name of or on behalf of this Enterprise, and such authority may be general or confined to specific instances.

Section 2. Bank Accounts. At the discretion of the Secretary-Treasurer, separate and special bank accounts, such as payroll account, may be established as the Interim Board shall from time to time consider necessary or convenient. Disbursements shall be supported by receipted vouchers and shall be done by check signed by persons designated and approved by the Interim Board.

Section 3. Budget and Financial Planning. This Enterprise shall prepare an annual detailed budget covering its anticipated operation for the ensuing year, which shall be submitted to the Secretary-Treasurer not later than September 1 of each year for the ensuing year. In addition, thereto, this Enterprise shall prepare a five-year financial plan shown on an annual basis. Both the budget and financial plan shall include such information as is necessary to present the plans. The Secretary-Treasurer will review and approve both the budget and five-year plan and submit the budget to the Council as part of the annual Tribal budget. Unless otherwise specifically provided by Council resolution, funds appropriated for the purpose of this Enterprise shall be considered as advances to this Enterprise, to be repaid from the net revenues of the operations of this Enterprise. Such funds shall bear interest at a then current market interest rate to be established by the Tribes’ Chief Financial Officer from time to time.

Section 4. Accounting and Operating Reports. Auditable financial records will be maintained and monthly and annual financial and operating reports will be prepared as are customary in a well-managed construction business and in accordance with financial standards promulgated by the Secretary-Treasurer. The monthly and annual reports of this Enterprise shall be promptly filed with the Secretary-Treasurer and the Tribes’ Chief Financial Officer.

Section 5. Audit. An audit of the operations and conditions of this Enterprise shall be made as of the close of each fiscal year by a firm of certified public accountants selected by the Secretary-Treasurer.

Section 6. Tribal Member and Indian Preference. The employment and contracting preference policies of the Tribe shall apply to this Enterprise.

Section 7. Affirmative Action for Contractors and Subcontractors. This Enterprise shall develop for each construction project a plan to ensure that all contractors and subcontractors on the construction project employ Tribal Members and other preference employees to the greatest extent feasible under the circumstances of the particular contract.

VI. CAPITAL

Section 1. Sources of Funds. The initial capital for operations and facilities of this Enterprise is shown on the attached Exhibit A. Additional operating capital of this Enterprise shall be derived from grants, borrowing, and appropriation in the Tribal Budget or from the accumulated earnings of the operations of this Enterprise.

Section 2. Use of Retained Earnings. Funds not required for the repayment of advances from the Tribe or as reasonable reserves for the following purposes: operating capital; repayment of indebtedness; maintenance, repair, replacement or expansion of plant, machinery, or equipment; shall not be retained or used in any way by this Enterprise. The Secretary-Treasurer shall review the reasonableness of all such reserves and, if appropriate, shall direct that all surplus amounts be made available to the Tribe for such uses and purposes as the Council shall consider appropriate.

Section 3. Distribution of Proceeds. Proceeds available from the operation of this Enterprise shall be transferred only to the Tribe. Per capita payments shall be made only by the Council, and may not be made by this Enterprise.

VII. FISCAL YEAR

The fiscal year of this Enterprise shall be from January 1 to December 31, inclusive.

VIII. LIMITATION OF LIABILITY AND INDEMNIFICATION

Section 1. General. The Tribe shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of Tribe or an Enterprise of the Tribe), by reason of the fact that such person is or was a member of the Interim Board of Enterprise, against expenses (including attorneys’ fees), judgment, fines and amounts paid in settlement actually and reasonably believed to be in or not opposed to the best interests of Enterprise and Tribe and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner that such person reasonably believed to be in or not opposed to the best interests of Enterprise and Tribe, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

Section 2. Derivative Actions. The Tribe shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of Tribe or Enterprise to procure a judgment in its favor by reason of the fact that such person is or was acting within the scope of their authority as a member or officer of the Interim Board, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such authority or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Enterprise and the Tribe and except that no affirmation shall be made in respect to any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of such person’s duty to such entities unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.

Section 3. Indemnification in Certain Cases. To the extent that a member of the Board has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 1 and 2 of this Article, or in the defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

Section 4. Procedure. Any indemnification under Section 1 and 2 of this Article (unless ordered by a court) shall be made by the Tribe only as authorized in the specific case upon a determination that indemnification of the director or officer is proper under the circumstances because such person has met the applicable standard of conduct set forth in such Section 1 and 2. Such determination shall be made by the Council.

Section 5. Advances for Expenses. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Tribe in advance of the final disposition of such action, suit or proceeding as authorized by the Council in a specific case upon receipt of an undertaking by or on behalf of the director or officer to repay such amount unless it shall be ultimately determined that such person is entitled to be indemnified by the Tribe as authorized in this policy.

Section 6. Rights Not Exclusive. The indemnification provided by this policy shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any law, by-law, agreement, vote of disinterested Council members or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be an Interim Board member and shall inure to the benefit of the heirs, executors and administrators of such a person.

Section 7. Insurance. Tribe shall have a power to purchase and maintain insurance on behalf of any person who is or was a member of the Interim Board against any ability asserted against such person and incurred by such person in any such capacity, or arising out of his status as such, whether or not the Tribe would have the power to indemnify him against such liability under the provisions of this policy.

IX. AMENDMENTS

Amendments to this Enterprise Plan of Operations may be recommended by the Interim Management Board, its successor or the Secretary-Treasurer and may only be approved by resolution of the Council.