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HomeMy WebLinkAboutResolution 2003-145 IGA with the pascua yaqui tribeMARANA RESOLUTION NO. 2003445 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN INTERGOVERNMENTAL AGREEMENT WITH THE PASCUA YAQUI TRIBE TO AUTHORIZE AND FACILITATE THE TOWN'S PARTICIPATION IN THE PURCHASE AND INSTALLATION OF PLAYGROUND EQUIPMENT AT Y©EM PUEBLO USING CDBG FUNDING, AND DECLARING AN EMERGENCY. WHEREAS, the Town has received an allocation of $25,000 in CDBG fimding to pay a portion of the cost for the purchase and installation of playground equipment at Yoem Pueblo; and WHEREAS, the Town and the Pascua Yaqui Tribe have prepared an intergovernmental agreement to facilitate this project. NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Marana, Arizona, approving and authorizing the Mayor to execute an intergovernmental agreement with the Pascua Yaqui Tribe to provide for the removal of existing playground equipment, preparation of the site, and the purchase and installation of new playground equipment, in the form presented to the Mayor and Council concurrently with this Resolution, and authorizing the Mayor, the Town Manager and Staff to undertake all other tasks required to carry out the terms, obligations and objectives of the intergovernmental agreement. IT IS FURTHER RESOLVED that it is necessary for the preservation of the peace, health, and safety of the Town of Marana that this resolution become immediately effective; therefore, an emergency is hereby declared to exist and this resolution shall be effective immediately upon its passage and adoption. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 4th day of November, 2003. M~ ~~;~ Y fl~(SBBtY S~JTTON, JR. ATTEST: ocelyn C.~ronson, Town Clerk Town of Marana Resolution No. 2003-145 INTERGOVERNMENTAL AGREEMENT BETWEEN PASCUA YAQUI TRIBE AND TOWN OF MARANA This Intergovernmental Agreement is entered into this __ day of 2003, by and between the Pascua Yaqui Tribe, a sovereign nation ("Tribe") and the Town of Marana, Arizona, an Arizona municipal corporation ("Town"). RECITALS WHEREAS, A.R.S. § 11-952 et seq. provides for the ability for the Town to enter into an Intergovernmental Agreement for the cooperation of the parties in the construction of infrastructure; and WHEREAS, Article VI, §1 (a) of the Constitution of the Pascua Yaqui Tribe vests the Tribal Council with the authority to enter into agreements with federal, state, and local governments; and WHEREAS, pursuant to the Constitution, Bylaws and other laws of the Tribe, the Pascua Yaqui Tribal Council is charged with the responsibility of providing for the general welfare of the members of the Tribe; and WHEREAS, pursuant to Article VI, Section l(a) and (d) of the Constitution of the Tribe, the Tribe may enter into contracts and agreements and appropriate tribal funds for governmental purposes serving the general welfare of the Tribe; and WHEREAS, The Tribe owns a certain parcel of land, traditionally occupied by members of the Tribe and known as Yoem Pueblo, located within the boundaries of the Town, and the parties wish to enter into this IGA in order to provide for the construction of certain park improvements within the Pueblo; and WHEREAS, the Mayor and Council of the Town did on the 4t~ day of November, 2003, authorize the Mayor to execute this Agreement by Resolution No. 2003-145. WHEREAS, the Tribe did on the day of ,2003 authorize the Tribe Chairman .to execute this Agreement by Resolution No. NOW, THEREFORE, Tribe and Town, in consideration of the mutual representations and covenants set forth herein, and for other good and valuable consideration, do mutually agree as follows. Marana/Pascua Yaqui Tribe IGA Page 1 of 7 4 5 6 7 3 AGREEMENT Purpose. The purpose of this intergovernmental agreement is to provide for the removal of existing playground equipment, preparation of the site, and the purchase and installation of new playground equipment. Effective Date' Term. This Agreement shall become effective upon filing the original executed Agreement with the office of the Pima County Recorder, and shall continue in effect until December 31, 2003. Construction of Playqround Equipment. Tribe has already prepared plans and obtained bids for the construction of playground equipment on a parcel within the Pueblo owned by the Marana Area Yaqui Association. The Town agrees that it will, at Town's expense, remove the existing playground equipment and prepare the grounds. The Tribe will be responsible for all contracting and other costs associated with the construction and installation of the new playground equipment, and the Town agrees to contribute the sum of twenty five-thousand ($25,000.00) dollars from Community Development Block Grant (CDBG) funding. The parties acknowledge and agree that in order to qualify for CDBG funding the playground equipment must be purchased and installed by December 31,2003, and as such, if the equipment is not purchased and installed by that date, the Town will not be responsible for payment as provided herein. Waiver of Permit Fees. The Town agrees to waive all permit fees for the above project. Compliance with CDBG Requirements. The parties understand and agree that the funding for the improvements will be funded through CDBG funds, and the Tribe agrees that it will comply in all respects with all CDBG requirements and all provisions ofthatcertain intergovernmental agreement between the Town and Pima County regarding CDBG funding, attached hereto as Exhibit "A." The Tribe agrees that it will work in cooperation with the Town and obtain the Town's approval of all bidding, contracts, and other activities in order to assure compliance with CDBG requirements. Status of Tribe as Sovereiqn Nation. The Tribe is a recognized sovereign nation, and nothing in this Agreement is intended to supercede that status. Status of Officers & Employees. It is not intended by this Agreement to, and nothing contained in this Agreement shall be construed to, create any partnership, joint venture or employment relationship between the parties or create any employer-employee relationship between any Tdbe employee or Town employee. Neither pa~y shall be liable for any debts, accounts, obligations or other liabilities whatsoever of the other, including (without limitation) the other party's obligation to withhold Social Security and income taxes for any of its employees. Marana/PascuaYaquiTribelGA Page 2 of 7 TOWN: TRIBE: 10 11 12 13 14 Hold Harmless; Indemnification. Each party shall, to the extent permitted by Arizona law, indemnify, defend and hold harmless each other party, its officers, departments, employees and agents from, for and against any and all suits, actions, legal or administrative proceedings, claims, demands liens, losses, fines or damages of any kind or nature, including consequential damages, liability, interest, attorneys' and accountants' fees or costs, and expenses of whatsoever kind and nature, which are in any manner directly or indirectly caused, occasioned or contributed to, by reason of any act, omission, fault, negligence, violation or alleged violation of any law, whether active or passive, of any other party hereto, its agents, employees, or anyone acting under its direction, control, or on his behalf, in connection with or incident to the performance of this Agreement. The mutual indemnifications set forth herein are not intended to, and do not, preclude any party from claiming against another party for breach of this Agreement. Notices. All notices shall be in writing and together with other mailings pertaining to this Agreement shall be made to: Town Manager Town of Marana 13251 N. Lon Adams Rd. Marana, AZ 85653 COPY TO: Town Attorney Town of Marana 13251 N. Lon Adams Rd. Marana, AZ 85653 Monica Obregon, Tdbal Planner COPY TO: Pascua Yaqui Tribe 7474 Camino de Oeste Tucson, AZ 85746 Pascua Yaqui Tribe Attn: Attorney General 7474 Camino de Oeste Tucson, AZ 85746 Construction and interpretation. All provisions of this Agreement shall be construed to be consistent with the intention of the parties as expressed in the recitals hereof. Amendment. This Agreement shall not be amended except by written instrument mutually agreed upon and executed by the parties. Entire Aqreement. This Agreement, including its exhibits and recitals, constitutes the entire agreement between the parties, and includes all prior oral and written agreements of the parties. Legal Jurisdiction. Nothing in this Agreement shall be construed as either limiting or extending the legal jurisdiction of Town or Tribe. No Joint Venture. It is not intended by this Agreement to, and nothing contained in this Agreement shall be construed to, create any partnership, joint venture, or employment relationship between the parties or create any employer-employee relationship between the parties. No party hereto shall be liable for any debts, accounts, obligations or other liabilities whatsoever of the other, including without MaranalPascuaYaquiTribelGA Page 3 of 7 limitation the other party's obligation to withhold social security and income taxes for itself or any of its employees. 15 Beneficiaries. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the parties to it and their respective successors and permitted assigns. 16 Timeliness. Each of the parties to this Agreement agrees to take such actions as may be necessary to carry out the terms of this Agreement, and to cause such documents as may be necessary to be executed with reasonable promptness. 17 Non-waiver. The failure of any party to insist, on any one or mere instances, upon the full and complete performance of any of the terms and provisions of the Agreement to be performed on the part of the other, or to take any action permitted as a result thereof, shall not be construed as a waiver or relinquishment of the right to insist upon full and complete performance of the same, or any other covenant or condition, either in full or in part in the future. The acceptance by any party of su ms of less than may be due and owing it at any time shall not be construed as accord and satisfaction. 18 Severability. In the event that any provision, or any portion of any provision, of this Agreement or the application thereof, is held invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall have no effect on the remaining portion of any provision or any other provision, or their application, which can be given effect without the invalid provision or application and to this end the provisions of this Agreement shall be deemed to be severable. 19 Termination. 19.1 For Cause. Any party hereto may terminate this Agreement for material breach of the Agreement by another party. Prior to any termination under this section, the party allegedly in default shall be given written notice by the other party of the nature of the alleged default. The party said to be in default shall have forty-five (45) days to cure the default. If the default is not cured within that time, the other party may terminate this Agreement. Any such termination shall not relieve either party from liabilities or costs already incurred under this Agreement. 19.2 Force Maieure. A party shall not be in default under this Agreement if it does not fulfill any of its obligations under this Agreement because it is prevented or delayed in doing so by reason of uncontrollable forces. The term "unControllable forces" shall mean, for the purposes of this Agreement, any cause beyond the control of the party affected, including but not limited to failure of facilities, breakage or accident to machinery or transmission facilities, weather conditions, flood, earthquake, lightning, fire, epidemic, Marana/Pascua Yaqui Tribe IGA Page 4 of 7 war, riot, civil disturbance, sabotage, strike, lockout, labor dispute, boycott, material or energy shortage, casualty loss, acts of God, or action or non- action by governmental bodies in approving or failing to act upon applications for approvals or permits which are not due to negligence or willful action of the padies, order of any government officer or court (excluding orders promulgated by the parties themselves), and declared local, state or national emergency, which, by exercise of due diligence and foresight, such party could not reasonablely have been expected to avoid. Either party rendered unable to fulfill any obligations by reason of uncontrollable forces shall exercise due diligence to remove any such inability with all reasonable dispatch. 19.3 Fundinq Sources; Budqet; Non-appropriation. This Agreement and ail obligations upon the parties adsing therefrom shall be subject to any limitation imposed by budget law. The parties affirm that they have within their respective budgets sufficient funds to discharge the obligations and duties assumed under this Agreement. If for any reason any party does not appropriate sufficient monies for the purpose of maintaining this Agreement, this Agreement shall be deemed to terminate by operation of law on the date of expiration of funding. In the event of such cancellation, the parties hereto shall have no further obligation to the other party other than for payment for services rendered prior to cancellation. 19.4 Conflict of Interest. This Agreement may be canceled without penalty or further obligation pursuant to A.R.S. § 38-511, and applicable provisions under the Constitution of the Pascua Yaqui Tribe, the pertinent provisions are incorporated into this Agreement by reference. 19.5 Ownershia of Property Upon Termination. Any termination of this Agreement shall not relieve any party from liabilities or costs already incurred under this Agreement, nor affect any ownership of the project constructed pursuant to this Agreement. Marana/PascuaYaquiTribe IGA Page 5 of 7 In witness whereof, the parties hereto have hereunto set their hands the day and year first above written. PASCUA YAQUI TRIBE Tribe Chairman TOWN OF MARANA Bobby Sutton Jr. Mayor ATTEST: (title) ATTEST: Jocelyn Entz Town Clerk Marana/PascuaYaquiTribelGA Page 6 of 7 INTERGOVERNMENTAL AGREEMENT DETERMINATION The foregoing Intergovernmental Agreement between the Town of Marana and the Pascua Yaqui Tribe has been reviewed pursuant by the undersigned, who have determined that it is in proper form and is within the powers and authority granted under the Paws of the Constitution of the Pascua Yaqui Tribe, the State of Arizona and the United States to those parties to the Intergovernmental Agreement represented by the undersigned. Pascua Yaqui Tribe Town of Marana By: As Tribe Attorney General and not personally Frank Cassidy As Town Attorney and not personally Marana/PascuaYaquiTribelGA Page 7 of 7