HomeMy WebLinkAboutRes 2013-37RESOLUTION NO. 2013 -37
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING AN INTERGOVERNMENTAL
AGREEMENT WITH THE FORT MCDOWELL YAVAPAI NATION
RELATING TO PROPOSITION 202 FUNDING.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION I. The Intergovernmental Agreement between the Town of Fountain Hills
and the Fort McDowell Yavapai Nation relating to Proposition 202 funding for promotion of
tourism and other public programs (the "Agreement') is hereby approved substantially in the
form attached hereto as Exhibit A and incorporated herein by reference.
SECTION 2. The Mayor, the Town Manager, the Town Clerk and the Town Attorney
are hereby authorized and directed to cause the execution of the Agreement and to take all steps
necessary to carry out the purpose and intent of this Resolution.
PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills,
Arizona, September 5, 2013.
FOR THE TOWN OF FOUNTAIN HILLS:
da ana h, Mayor
REVIEWED BY:
Kenneth W. Buchanan, Town Manager
2005929.1
ATTESTED TO:
/ 1
�A. -AM i�
J.
AS TO FORM:
Attorney
EXHIBIT A
TO
RESOLUTION NO. 2013-37
[Intergovernmental Agreement]
See following pages.
2005929.1
Intergovernmental Agreement
Between
The Town of Fountain Hills and The Fort McDowell Yavapai Nation
To
Provide Funds for Promoting Public Programs
In the Town of Fountain Hills
And
Surrounding Communities
Pursuant To A Tribal Revenue Sharing Agreement
Authorized By
Section 12 Payment of Regulatory Costs; Tribal Contributions
Fort McDowell Yavapai Nation and State of Arizona
Gaming Compact 2002
And
A.R.S. § 5- 601.02
Fort McDowell, Arizona
2005785 3)
Intergovernmental Agreement
Between
The Town of Fountain Hills and The Fort McDowell Yavapai Nation to
Provide Funds for Promoting Tourism and other Public Programs
in the Town of Fountain Hills and Surrounding Communities
This Intergovernmental Agreement (this "Agreement ") is entered into by and between the Town of
Fountain Hills, an Arizona municipal corporation (the "Town ") and the Fort McDowell Yavapai Nation
(the "Nation "), a Federally- Recognized Indian Tribe, pursuant to Section 12 Payment of Regulatory
Costs; Tribal Contributions ( "Section 12 ") of the Fort McDowell Yavapai Nation and State of Arizona
Gaming Compact 2002 (the "Compact ") and A.R.S. § 5- 601.02.
Recitals
A. The Town and Nation may enter into an agreement with one another for the distribution of 12% of the
Nation's annual contribution under Section 12(b)(1) of the Compact to cities, towns, or counties that
benefit the general public or promote commerce and economic development and pursuant to A.R.S. §
5- 601.02.
B. The Nation is authorized by Section 13(A)(15) of Article V, Legislative Branch, of the Constitution
of the Fort McDowell Yavapai Nation to consult, negotiate, contract and conclude and perform
agreements with Federal, state, local governments and Indian tribes, as well as any person,
association, partnership, corporation, government or other private entity.
C. The Town is authorized by A.R.S. §§ 5- 601.02 and 11 -952 to enter into agreements with Indian
Tribes for the purpose of accepting distributions to cities, towns or counties for governmental services
that benefit the general public, including public safety, mitigation of impacts of gaming, or promotion
of commerce and economic development.
D. The Town and Nation desire to enter into this Agreement to provide funds for the purpose of
promoting tourism and other public programs in the State of Arizona and specifically the Town of
Fountain Hills and surrounding communities, as designated by the Nation, hereinafter referred to as
the "Designated Entities ", as more particularly described in Exhibit A attached hereto and
incorporated herein by reference.
E. The Town and Nation desire to enter into this Agreement to define the terms and conditions of the
Nations' funding of the Designated Entities.
F. The total cost of the Designated Project(s): $30,000.00.
G. The $30,000.00 is hereby made available for the Designated Entities from revenue generated by the
Nation's Gaming Enterprise also known as the Fort McDowell Casino.
H. The Nation intends to provide $30,000.00 (the "Funds "), which represents a portion of its
contribution pursuant to a Tribal Revenue Sharing Agreement authorized by Section 12 of the
Compact and A.R.S. § 5- 601.02.
2005785.3
Agreement
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein, and the
covenants and promises set forth below, the Nation and the Town, hereby mutually agree as follows:
1. Designated Entity. The Designated Entity(s) is the Town or a non - profit entity within the Town of
Fountain Hills which operates for the public benefit in the Town of Fountain Hills and surrounding
areas, as identified in the attached Exhibit A.
2. Disbursement of Funds. After receipt of the Funds from the Nation, the Town shall send a payment
to such Designated Entity(s) in the amount of the payment received from the Nation as expeditiously
as possible.
3. Consideration and Reliance. The Nation expressly acknowledges that the Town's promise to accept
and disburse to the Designated Entity all Funds received by the Town pursuant to this Agreement is
full and adequate consideration and shall render this promise to provide funding irrevocable, and this
Agreement shall constitute a binding obligation of the Nation under applicable law.
4. Limited Duties of Town. The Nation further expressly agrees that, except as specifically set forth in
this Agreement, the Town has no duties under or related to this Agreement other than to receive the
Funds and deliver same to the Designated Entity; selection of Designated Entity and determination as
to the amount of funding are solely at the discretion of the Nation. The Parties agree that there are no
third -party beneficiaries to this Agreement.
5. Financing; Verification of Payment.
A. Nation Deposit. The Nation shall deposit with the Town the amount of $30,000.00 within thirty
(30) days of the Effective Date of this Agreement to be disbursed according the Designated
Project amounts in Exhibit A.
B. Verification of Payment. At the request of the Nation, the Town shall provide a verification of
payment to the Designated Entity. The Town's responsibility is limited to disbursement to each
Designated Entity and the Town has no further duty with regard to third party, provided that the
disbursement is complete.
6. Inspection and Audit. To ensure compliance with the Town's limited duties herein, the Nation may
inspect any and all records maintained by the Town with respect to the Project upon seven (7) days
prior, written notice to the Town. This Section 6 shall survive termination, cancellation, or
revocation, whether whole or in part, of this Agreement for a period of one (1) year following the date
of such termination, cancellation, or revocation.
7. Term and Termination of Agreement.
A. Effective Date. This Agreement shall be effective on the date it is signed by the Nation's
authorized representative.
B. Term. This Agreement shall commence upon the Effective Date and shall terminate when the
funds have been received by the Town and disbursed to the Designated Entity.
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C. Termination. The Nation may terminate this Agreement with or without cause at any time prior
to providing payment to the Town, provided that such notice shall be in writing and delivered to
the parties' designated representatives, as set forth in the Notice section.
8. Indemnification.
A. Indemnification. To the extent permitted by law, each party shall indemnify, defend, and hold
harmless the other party, its governing body, officers, departments, employees and agents from
and against any and all suits, actions, legal or administrative proceedings, claims, demands, liens,
losses, fines or penalties, damages, liability, interest, attorney's, consultant's, and account's fees
or costs and expenses of whatsoever kind and nature, resulting from or arising out of the
negligence or willful misconduct of the indemnifying party, its employees or agents in
performing the duties set forth in this Agreement.
B. No Liability for Other Party's Debts and Obligations. Neither party shall be liable for any debts,
accounts, obligations, nor other liabilities whatsoever of the other, including and without
limitation the other party's obligation to withhold employment and income taxes for itself or any
of its employees.
C. Severability. This Section 8 shall survive termination, cancellation, or revocation, whether whole
or in part, of this Agreement for a period of one (1) year from the date of such termination,
cancellation or revocation unless a timely claim is filed under A.R.S. § 12- 821.01, in which case
this Section 8 shall remain in effect for each claim and /or lawsuit filed thereafter, but in no event
shall this Section 8 survive more than five (5) years from the date of termination, cancellation or
revocation of this Agreement.
9. Interpretation of Agreement.
A. Entire Agreement. This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter contained herein, and all prior or contemporaneous agreements
and understandings, oral or written, are hereby superseded and merged herein.
B. Amendment. This Agreement shall not be modified, amended, altered, or changed except by
written agreement signed by both parties.
C. 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 contained herein.
D. Relationship of the Parties. Neither party shall be deemed to be an employee or agent of the
other party to this Agreement.
E. Days. Days shall mean calendar days.
F. Severability. In the event that any provision of this Agreement or the application thereof is
declared invalid or void by statute or judicial decision, such action shall have no effect on other
provisions and their application which can be given effect without the invalid or void provision or
application, and to this extent the provisions of the Agreement are severable. In the event that
any provision of this Agreement is declared invalid or void, the parties agree to meet promptly
upon request of the other party in an attempt to reach an agreement on a substitute provision.
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3
10. Waiver. Waiver or delay in enforcement by either party of any breach of a term, covenant, or
condition contained herein shall not be deemed a waiver of any other term, covenant, or condition, or
any subsequent breach of the same or any other term, covenant, or condition contained herein.
11. Notification. Any notice, communication, or modification shall be given in writing and shall be
given by registered or certified mail or in person to the following individuals. The date of receipt of
such notices shall be the date the notice shall be deemed to have been given.
For the Fort McDowell Yavapai Nation:
Bernadine Burnette, Vice President
Fort McDowell Yavapai Nation
P.O. Box 17779
Fountain Hills, AZ 85269
For the Town of Fountain Hills:
Kenneth Buchanan
Town Manager
16705 E. Avenue of the Fountains
Fountain Hills, AZ 85268
Thomas Moriarty, General Counsel
Fort McDowell Yavapai Nation
P.O. Box 17779
Fountain Hills, AZ 85269
Andrew McGuire,
Town Attorney
Gust Rosenfeld, PLC
One E. Washington, Suite 1600
Phoenix, AZ 85004
12. Assignment and Delegation. Neither party shall assign nor delegate any of its rights, interest,
obligations, covenants, or performance under this Agreement. Any termination shall not relieve
either party from liabilities,or costs already incurred under this Agreement.
13. Non- Waiver of Sovereign Immunity. Nothing in this Agreement, Exhibit A or the Funding
Agreements shall be construed to waive the Sovereign Immunity of the Nation.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, The Town of Fountain Hills has caused this Intergovernmental Agreement to
be executed by the Mayor, upon resolution of the Town Council and attested by the Town Clerk, and the
Fort McDowell Yavapai Nation has caused this Intergovernmental Agreement to be executed by the
Nation's Tribal Council and attested to by its Clerk.
This Agreement is effective upon signature of a duly appointed representative of the Fort McDowell
Yavapai Nation.
ATTEST:
Selena Castaneda, Secretary
Fort McDowell Yavapai Nation
Date
ATTEST:
,e& �(z1412 UEt i L--
Bevelyn Ben •, ToA Clerk
Town of Fountain Hills
9 -513
Date
2005785.3
FORT MCDOWELL YAVAPAI NATION
Bernadine Bumette
Vice President, Tribal Council
Fort McDowell Yavapai Nation
TOWN OF FOUNTAIN HILLS
1 444 % 1C i ��
mda M. Kavan h, Mayor
Town of Fountain Hills
The undersigned attorney acknowledges that he has reviewed the above Agreement on behalf of the
FORT MCDOWELL YAVAPAI NATION, and has determined that this Agreement is in proper form and
that execution hereof is within the powers and authority granted under the Constitution of the Fort
McDowell Yavapai Nation, Section 13(A)(15), Article V Legislative Branch, as adopted October 19,
1999 and approved by the U.S. Deputy Commissioner of Indian Affairs November 12, 1999. This
acknowledgement shall not constitute nor be construed as a waiver of the Sovereign Immunity of the Fort
McDowell Yavapai Nation.
Thomas Moriarty, General Counsel Date
Fort McDowell Yavapai Nation
In accordance with the requirements of A.R.S. § 11- 952(D), the undersigned attorney acknowledges that
(i) he has reviewed the above Agreement on behalf of the TOWN OF FOUNTAIN HILLS and (ii) as to
the Town of Fountain Hills only, has determined that this Agreement is in proper form and that execution
hereof is within the powers and authority granted under the laws o e State of Arizona.
Q•S•l3
Andrew McGuire, Town Attorney Date
Town of Fountain Hills
2005785.3
EXHIBIT A
DESIGNATED PROJECTS 2013 -2014
Project(s) Purpose Award Contact
Town of Fountain Hills Golden Eagle Ed.
$10,000.00
Ken Buchanan
Foundation
480 - 816 -5100
CVB
$5,000.00
Ken Buchanan
480 - 816 -5100
River of Time
$5,000.00
Deborah Skehen
Museum
480 - 816 -4186
Boys /Girls Club
$10,000.00
Erin Lovell
480- 344 -5688
TOTAL
2005785.3
$30,000.00