CROW TRIBAL LEGISLATURE

CROW TRIBAL LEGISLATURE

APRIL 27", 2018 — SPECIAL SESSION

JOINT ACTION RESOLUTION NO. JAR18-02

Introduced by Alvin Not Afraid, Jr., Chairman

Crow Tribal Executive Branch

JOINT ACTION RESOLUTION OF THE CROW TRIBAL LEGISLATURE AND THE

CROW TRIBAL EXECUTIVE BRANCH ENTITLED:

"RESOLUTION APPROVING THE CROW TRIBE'S LIMITED WAIVER OF

SOVEREIGN IMMUNITY IN THE CONSTRUCTION CONTRACT FOR THE CROW

TRIBE WATER RESOURCES DEPARTMENT CIP FORTY MILE HEADWORKS

IMPROVEMENTS PROJECT."

WHEREAS, the Crow Tribe is prepared to begin the bid process for the Crow Irrigation

Project (CIP), Forty Mile Headworks Improvements Project, in order to furnish and install all

materials, equipment, and labor, for the construction of the Forty Mile Headworks Improvements

Project within the Bighorn Unit of the Crow Irrigation Project, to facilitate safer and more

efficient and reliable delivery of water to benefit water users within the Crow Irrigation Project;

and

WHEREAS, Exhibit A in the Supplementary Conditions to the General Conditions of

the Construction Contract for construction of the Crow Irrigation Project, Forty Mile Headworks

Improvements Project, attached hereto and incorporated by reference, requires a limited waiver

of sovereign immunity for the limited purpose of enforcing the Owner’s obligations under the

construction contract; and

WHEREAS, the general Scope of Work for the project is set forth in Exhibit B attached

hereto and incorporated by reference; and

WHEREAS, the Chairman of the Executive Branch has authority and responsibility

pursuant to the “enumerated powers” in Article IV, Section 3(a) of the Constitution and Bylaws

of the Crow Tribe of Indians to represent the Crow Tribe in negotiations with Federal, State and

local government and other agencies, corporation, associations, or individuals in matters of

economic development affecting the Crow Tribe, and in Section 3(k) to “negotiate limited

waivers of sovereign immunity when such a waiver is necessary for business purposes in

accordance with Article V, Section 2(f) of [the] Constitution;” and

WHEREAS, the Legislative Branch has authority and responsibility pursuant to its

“powers and duties” in Article V, Section 2(f) of the Constitution to “grant final approval or

disapproval of limited waivers of sovereign immunity by the Executive Branch of Government

when waivers are necessary for business purposes;” and

APRIL 27, 2018-SPECIAL SESSION

Resolution Approving the Crow Tribe's Limited Waiver of Sovereign Immunity in Construction Contract for the Crow

Tribe Water Resources Department, CIP, Forty Mile Headworks Improvements Project

Page 1 of 6

WHEREAS, the Crow Tribe, the community, and water users within the Crow Irrigation

Project will greatly benefit from the rehabilitation and improvement from the Forty Mile

Headworks Improvements Project, and the limited waiver of sovereign immunity required by the

contracting conditions for the construction contract is necessary for the business purpose of

construction of the Forty Mile Headworks Improvements Project;

NOW THEREFORE, BE IT RESOLVED BY THE CROW TRIBAL

LEGISLATURE AND THE CROW TRIBAL EXECUTIVE BRANCH:

Section 1. That the limited waiver of sovereign immunity set forth in Exhibit A in the

Supplementary Conditions to the General Conditions of the Construction Contract for the

Crow Tribe Water Resources Department (CTWRD) Rehabilitation and Improvement of

the Crow Irrigation Project, Forty Mile Headworks Improvements Project, attached hereto

as Exhibit A and incorporated by reference, is hereby approved.

Section 2. That the approval granted herein is effective on the date of approval of this

Resolution.

[Remainder of Page Left Blank Intentionally]

APRIL 27", 2018-SPECIAL SESSION

Resolution Approving the Crow Tribe's Limited Waiver of Sovereign Immunity in Construction Contract for the Crow

Tribe Water Resources Department, CIP, Forty Mile Headworks Improvements Project

Page 2 of 6

CERTIFICATION

I hereby certify that this Joint Action Resolution for the "RESOLUTION APPROVING THE

CROW TRIBE'S LIMITED WAIVER OF SOVEREIGN IMMUNITY IN THE

CONSTRUCTION CONTRACT FOR THE CROW TRIBE WATER RESOURCES

DEPARTMENT CIP FORTY MILE HEADWORKS IMPROVEMENTS PROJECT " was

duly approved by the Crow Tribal Legislature with a vote of _9_ in favor, 3 opposed, and

_3_ abstaining, and that a quorum was present on this 27" day of April, 2018.

Senator Pat Alden, Jr.

Speaker of the House

Crow Tribal Legislature

ATTEST:

Senator Lawrence DeCrane

Secretary

Crow Tribal Legislature ying,

SQHE CROs,

Sati oe

ya: Yes

EXECUTIVE ACTION Her SEAL im?

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I hereby Be, Les

“BIg trance! SS

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veto

this Joint Action Resolution for the "RESOLUTION APPROVING THE CROW TRIBE'S

LIMITED WAIVER OF SOVEREIGN IMMUNITY IN THE CONSTRUCTION

CONTRACT FOR THE CROW TRIBE WATER RESOURCES DEPARTMENT CIP

FORTY MILE HEADWORKS IMPROVEMENTS PROJECT " pursuant to the authority

vested in the Chairman of the Crow Tribe by Article V, Section 8 and Article IV, Section 3(k) of

the Constitution and Bylaws of the Crow Tribe of Indians on this 2J” day of

Boe , 2018.

42725

Alvin Not Afraid, Jr/Chairman

Crow Tribal Executive Branch

APRIL 27", 2018-SPECIAL SESSION

Resolution Approving the Crow Tribe's Limited Waiver of Sovereign Immunity in Construction Contract for the Crow

Tribe Water Resources Department, CIP, Forty Mile Headworks Improvements Project

Page 3 of 6

EXHIBIT A

DISPUTE RESOLUTION

AND

LIMITED WAIVER OF SOVEREIGN IMMUNITY

1.1. Arbitration. (a) Any Claim or other controversy arising under the

Agreement shall be settled by binding arbitration in accordance with the Construction

Industry Arbitration Rules of the American Arbitration Association (“AAA”) except as

otherwise modified herein, and judgment upon the award rendered by the arbitrator(s)

may be entered in a court having jurisdiction thereof as further provided in this Exhibit A.

(b) The laws of the Crow Tribe shall be the applicable law, or if not addressed

therein, the laws of the State of Montana; provided, that this stipulation does not affect

jurisdiction. The arbitrator(s) shall have authority to order specific performance and award

appropriate injunctive, declaratory or compensatory monetary relief, including

interlocutory orders to mitigate damage or prevent irreparable injury to a party, but shall

not have authority to award punitive damages or other noncompensatory damages.

(c) | The arbitrators’ fees and all other costs of the arbitration shall initially be

borne equally by the parties, but ultimate responsibility for payment of such costs shall be

borne by the party against whom the award is rendered, except as the arbitrator(s) may

otherwise provide in a written decision.

(d) | The award of the arbitrator(s) shall be conclusive and binding on the parties

with respect to the matters decided, and shall be complied with by the parties. A party

may enter an award and institute Judicial Proceedings to enforce the award in accordance

with Section 1.2 of this Exhibit A. In such Judicial Proceedings, neither party, without the

consent of the other party, shall be entitled to contend that the award should be vacated,

modified or corrected.

1.2 Judicial Proceedings. (a) A party may commence court proceedings

(“Judicial Proceedings”) only to compel the other party to participate in arbitration

proceedings or to enforce an arbitration award. All Judicial Proceedings conducted

pursuant to this Exhibit A shall be initially commenced in Crow Tribal Court. Any Judicial

Proceedings conducted in Tribal Court shall be conducted in accordance with the

substantive law of the Federal Arbitration Act and the procedural law of the Crow Tribal

Court, to the extent that such procedural law is not inconsistent with the Federal

Arbitration Act and the procedures expressly provided herein.

(b) | Only in the event that the Crow Tribal Court refuses to compel a party to

participate in arbitration proceedings or to enforce an arbitration award as written, or fails

to perform said functions within 60 days after commencement of Judicial Proceedings, or

such further time as the parties may mutually agree, may either party transfer (“remove”)

APRIL 27", 2018-SPECIAL SESSION

Resolution Approving the Crow Tribe's Limited Waiver of Sovereign Immunity in Construction Contract for the Crow

Tribe Water Resources Department, CIP, Forty Mile Headworks Improvements Project

Page 4 of 6

the Judicial Proceedings from Crow Tribal Court to the United States District Court for the

District of Montana, or if it lacks jurisdiction, to the Montana Twenty-Second Judicial

District Court for Big Horn County, Montana.

(c) If allowed pursuant to subsection (b) above, removal of Judicial

Proceedings from Crow Tribal Court may be accomplished by filing a notice of removal in

Crow Tribal Court and filing an appropriate application in the appropriate federal or state

court (the “Deciding Forum”) in accordance with the procedural rules of that forum. The

notice of removal and application need be executed on behalf of only the removing party,

and such removal shall not be opposed or contested by the other party. Upon removal,

all proceedings in Crow Tribal Court shall be stayed pending final resolution in the

Deciding Forum, and all Tribal remedies shall be deemed exhausted. Upon final

resolution of the matter, the order or judgment of the Deciding Forum may be entered in

Crow Tribal Court.

(d) The parties waive any rights to pursue judicial proceedings related to the

Agreement in any court except as provided in this Exhibit A.

1.3. Limited Waiver of Owner’s Sovereign Immunity. The Crow Tribe of

Indians unequivocally and irrevocably grants a limited waiver of its sovereign immunity

from suit for the limited purpose of enforcing the Owner's obligations under the Agreement

by means of arbitration proceedings, Judicial Proceedings instituted for the purpose of

compelling participation in arbitration proceedings, and Judicial Proceedings for the

enforcement of arbitration awards, all in accordance with the provisions of this Exhibit A;

provided, however, that:

(a) _ this limited waiver shall only extend to the Contractor, its successors and

assigns, and no other or third parties;

(b) this limited waiver shall not apply to proceedings in any court except the

Judicial Proceedings as provided in Section 1.2 of this Exhibit A;

(c) this waiver shall extend only for a period of time until all the Owner's

obligations are satisfied under the Agreement; and

(d) the monetary relief available against the Crow Tribe of Indians pursuant to

this waiver shall be limited to amounts that are expressly due and payable pursuant to

the Agreement (including the costs of arbitration if so awarded against the Owner

pursuant to this Exhibit A), and shall not include any other indirect, consequential, tort,

punitive or non-compensatory damages. In no event shall any judgment or other relief

awarded pursuant to this limited waiver result in the encumbrance of any Tribal property

or assets which are held in trust for the Crow Tribe by the United States of America.

APRIL 27", 2018-SPECIAL SESSION

Resolution Approving the Crow Tribe's Limited Waiver of Sovereign Immunity in Construction Contract for the Crow

Tribe Water Resources Department, CIP, Forty Mile Headworks Improvements Project

Page 5 of 6

EXHIBIT B

GENERAL SCOPE OF WORK

Rehabilitation and Improvement of the Crow Irrigation Project

Forty Mile Headworks Improvements Project

The work is located on the Crow Reservation in Big Horn County, Montana approximately 8-

miles south of Lodge Grass, MT, in Sections 11, 12, and 14, Township 7 South, Range 35 East.

The Scope of Work for the project consists generally of rehabilitation and improvement to the

Forty Mile Headworks and Main Canal. The Project will consist of the construction of a new

headworks structure and demolition of the existing ramp flume structure. Included in the Project

will also be the construction of a new ramp flume structure and stilling well, cleaning and

reshaping of approximately 4,200 feet of main canal, and associated O&M road improvements,

The work consists generally of earthwork; steel reinforced concrete construction; riprap

placement; slide gate installation; handrail and miscellaneous metal installation; canal cleaning

and reshaping work; canal excavation and compacted embankment construction buried electrical

conduit installation for future electrical (future slide gate actuation and automation); stream

diversion and dewatering; concrete demolition associated with abandonment of the existing ramp

flume structure; gravel surfacing for O&M road improvements. All other related work as

required by the Project Drawings, Specifications, and Contract Documents; preservation and

replacement of topsoil where specified, seedbed preparation, and reseeding and stabilizing

disturbed areas.

APRIL 27", 2018-SPECIAL SESSION

Resolution Approving the Crow Tribe's Limited Waiver of Sovereign Immunity in Construction Contract for the Crow

Tribe Water Resources Department, CIP, Forty Mile Headworks Improvements Project

Page 6 of 6

JAR: "RESOLUTION APPROVING THE CROW TRIBE'S LIMITED WAIVER OF SOVEREIGN IMMUNITY IN THE

CONSTRUCTION CONTRACT FOR THE CROW TRIBE WATER RESOURCES DEPARTMENT CIP FORTY MILE

HEADWORKS IMPROVEMENTS PROJECT."

Bill or Resolution: JAR18-02 Introduced by:_Chairman Alvin Not Afraid, Date of Vote:_4/27/2018

Number

REPRESENTATIVE: Yes No Abstained

M. White Clay x

D. Spotted x

F. White Clay ».4

L.Hogan, III

B. Brown D4

S. Real Bird xX

V. Nomee xX

T. Yellowtail 4

T. Gros Ventre D4

M. Not Afraid x

Vacant

J. Demontiney x

B. Hugs

N. Old Crow, Jr. xX

B. Good Luck x

H. Stone, Jr. x

L. DeCrane, Secretary of the House x

P. Alden, Jr., Speaker of the House x

Total: 9 3 3

Result of Vote:

Passed Not Passed Tabled Veto-Override

Ou OW Jol S3HE AO, ses QC 5-2-9

Senator Pat Alden, Jr. Date Senator Lawrence DeCrane Date

Speaker of the House Secretary of the House

Crow Tribal Legislative Branch Crow Tribal Legislative Branch