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Home My WebLink AboutRes 2014-42RESOLUTION NO.2014-42 ARESOLUTIONOFTHEMAYORANDCOUNCILOFTHETOWNOF FOUNTAINHILLS,ARIZONA,APPROVINGANINTERGOVERNMENTAL AGREEMENTWITHTHEFORTMCDOWELLYAVAPAINATION RELATING TO PROPOSITION 202 FUNDING. BEIT RESOLVED BYTHE MAYOR ANDCOUNCILOFTHETOWNOF FOUNTAIN HILLS as follows: SECTION 1.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 in substantially the form and substance 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 necessarytocarryoutthepurposeandintent of thisResolution. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona,September 4,2014. FOR THE TOWN OF FOUNTAIN HILLS:ATTESTED TO: Bevelyn J. REVIEWED BY:APPROVED AS TO FORM: KennethW.Buchanan,TownManager AndrewJ.McGuire,TownAttorney 2221232.1 2221232.1 EXHIBIT A TO RESOLUTION NO.2014-42 [Intergovernmental Agreement] Seefollowingpages. 2220768.2 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 ToA 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 Intergovernmental Agreement Between The Town of Fountain Hillsand The Fort McDowell Yavapai Nationto ProvideFundsforPromoting Tourism andotherPublicPrograms inthe Town of Fountain Hills and Surrounding Communities This Intergovernmental Agreement(this"Agreement")isenteredintobyandbetweentheTownof Fountain Hills,an Arizona municipal corporation (the "Town")andtheFort McDowell Yavapai Nation (the "Nation"),a Federally-Recognized Indian Tribe,pursuant to Section 12 Payment of Regulatory Costs;TribalContributions("Section12")oftheFortMcDowellYavapaiNationandStateofArizona GamingCompact2002(the "Compact")andA.R.S.§5-601.02. Recitals A.TheTownandNationmayenterintoanagreementwithoneanotherforthedistribution of 12%of the Nation'sannual contribution underSection 12(b)(1)oftheCompacttocities,towns,or counties that benefit the general public or promote commerce and economic development and pursuant to A.R.S.§ 5-601.02. B.TheNationisauthorizedbySection 13(A)(15)ofArticleV,LegislativeBranch,of theConstitution oftheFort McDowell Yavapai Nation to consult,negotiate,contract and conclude and perform agreements with Federal,state,local governments and Indian tribes,as well asany person, association,partnership,corporation,governmentorotherprivateentity. C.TheTownis authorized byA.R.S.§§5-601.02and 11-952 toenterinto agreements withIndian Tribesforthepurposeofacceptingdistributionstocities,townsorcountiesfor governmental services thatbenefitthegeneralpublic,including publicsafety,mitigationofimpactsof gaming,or promotion ofcommerceandeconomicdevelopment. D.TheTownandNationdesiretoenterintothis Agreement toprovide funds forthe purpose of promotingtourismandotherpublicprogramsintheState of ArizonaandspecificallytheTown of Fountain Hillsand surrounding communities,as designated bytheNation,hereinafter referredtoas the "Designated Entities",asmore particularly describedin Exhibit Aattachedheretoand incorporated herein by reference. E.TheTownandNationdesiretoenterintothis Agreement todefinethetermsandconditions of the Nations'funding of the Designated Entities. F.Thetotalcost of the Designated Project(s):$67,044.07. G.The $67,044.07 isherebymade available fortheDesignatedEntitiesfromrevenue generated bythe Nation's Gaming Enterprise alsoknownastheFort McDowell Casino. H.TheNationintendstoprovide$67,044.07(the"Funds"),whichrepresentsaportion of its contribution pursuanttoaTribalRevenueSharing Agreement authorized bySection12 of the Compact and A.R.S.§5-601.02. 2220768.2 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)isthe Town ora 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 ofthe 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-partybeneficiariestothisAgreement. 5.Financing;Verification of Payment. A.Nation Deposit.The Nation shall deposit with the Town the amount of $67,044.07 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.Atthe request ofthe Nation,the Town shall provide a verification of paymenttotheDesignatedEntity.TheTown's responsibility islimitedtodisbursementtoeach Designated Entity andthe Town has no further duty with regard to third party,provided thatthe disbursementiscomplete. 6.Inspection and Audit.To ensure compliance with the Town's limited duties herein,the Nation may inspect anyand all records maintained by the Town with respect tothe Project upon seven (7)days prior,written notice tothe Town.This Section 6 shall survive termination,cancellation,or revocation,whether whole orin 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 onthedateitis signed bytheNation's authorized representative. B.Term.ThisAgreementshallcommenceupontheEffectiveDateandshallterminatewhenthe funds have been received bythe Town and disbursed tothe Designated Entity. 2220768.2 C.Termination.TheNationmayterminatethisAgreementwithorwithoutcauseatanytimeprior toprovidingpaymenttotheTown,providedthatsuchnoticeshallbeinwritinganddeliveredto the parties'designated representatives,assetforthintheNoticesection. 8.Indemnification. A.Indemnification.Totheextentpermittedbylaw,eachpartyshallindemnify,defend,andhold harmlesstheotherparty,itsgoverningbody,officers,departments,employeesandagentsfrom andagainstanyandallsuits,actions,legalor administrative proceedings,claims,demands,liens, losses,finesor penalties,damages,liability,interest,attorney's,consultant's,and account's fees orcostsandexpenses of whatsoever kindandnature,resultingfromorarisingout of the negligenceorwillful misconduct of the indemnifying party,itsemployeesoragentsin performing thedutiessetforthinthis Agreement. B.NoLiabilityfor OtherParty'sDebtsandObligations.Neitherpartyshallbeliableforanydebts, accounts,obligations,norotherliabilities whatsoever of theother,includingandwithout limitationtheother party's obligationtowithholdemploymentandincometaxesfor itself orany of itsemployees. C.Severability.This Section 8shall survive termination,cancellation,or revocation,whether whole orinpart,of this Agreement fora period of one(1)year fromthedate of such termination, cancellation or revocation unless a timely claim isfiled 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 inno event shallthis Section 8survivemorethanfive(5)yearsfromthedate of termination,cancellation or revocation of this Agreement. 9.Interpretation of Agreement. A.Entire Agreement.This Agreement constitutes theentire agreement betweentheparties pertainingtothesubjectmatter contained herein,andallprioror contemporaneous agreements and understandings,oralorwritten,are hereby superceded and merged herein. B.Amendment.This Agreement shallnotbemodified,amended,altered,orchangedexceptby written agreement signed by both parties. C.Construction and Interpretation.All provisions of this Agreement shallbe construed tobe consistentwiththeintention of thepartiesas expressed intherecitalscontainedherein. D.Relationship of theParties.Neitherpartyshallbedeemedtobeanemployeeoragent of the other party tothis Agreement. E.Days.Daysshallmean calendar days. F.Severability.Inthe event thatany provision of this Agreement orthe application thereof is declaredinvalidorvoidbystatuteor judicial decision,suchactionshallhavenoeffectonother provisionsandtheir application whichcanbegiveneffectwithouttheinvalidorvoidprovisionor application,andtothisextentthe provisions of the Agreement areseverable.Intheeventthat anyprovisionofthisAgreementisdeclaredinvalidorvoid,thepartiesagreetomeetpromptly uponrequestoftheotherpartyinanattempttoreachanagreementonasubstituteprovision. 2220768.2 10.Waiver.Waiver or delay in enforcement by either party ofany breach ofa term,covenant,or condition contained herein shall notbe deemed a waiver ofany other term,covenant,or condition,or anysubsequentbreachofthesameoranyotherterm,covenant,orconditioncontainedherein. 11.Notification.Any notice,communication,or modification shall be given in writing and shall be given by registered or certified mail orin person to the following individuals.The date of receipt of such notices shallbethedatethe notice shallbe deemed to have been given. FortheFortMcDowellYavapaiNation: Ruben Balderas,President FortMcDowellYavapaiNation 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 ThomasMoriarty,GeneralCounsel FortMcDowellYavapaiNation P.O.Box 17779 Fountain Hills,AZ 85269 Andrew McGuire, Town Attorney Gust Rosenfeld,PLC OneE.Washington,Suite 1600 Phoenix,AZ 85004 12.Assignmentand Delegation.Neither partyshall assign nor delegate anyofits rights,interest, obligations,covenants,or performance underthis Agreement.Any termination shallnot relieve eitherpartyfromliabilitiesorcostsalreadyincurredunderthis Agreement. 13.Non-Waiver of Sovereign Immunity.Nothing in this Agreement,Exhibit Aorthe Funding AgreementsshallbeconstruedtowaivetheSovereignImmunity of theNation. [SIGNATURES ON FOLLOWING PAGE] 2220768.2 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 tobyits Clerk. This Agreement is effective upon signature ofa duly appointed representative of the Fort McDowell Yavapai Nation. ATTEST: (L C^_ SelenaCastaneda,Secretary FortMcDowellYavapaiNation Date ATTEST: Bevelyn Bender,fbvm Clerk Town of Fountain Hills ?-4VY Date 2220768.2 FORT MCDOWELL YAVAPAI NATION Ruben Baldefas President,Tribal Council Fort McDowell YavapaiNation TOWN OF FOUNTAIN HILLS raa M.Kav^hagh,Mayor Town of Fountain Hills I 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 McDowellYavapaiNation. /'LurylAP^ ,GeneralCounselDateThomasMoriarty FortMcDowellYavapaiNation 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 hereofis within the powers and authority grantedunderthe laws oftheStateof Arizona. 2220768.2 Andrew McGuire,TownAttorneyDate Town of Fountain Hills Project(s) Town of Fountain Hills TOTAL 2220768.2 EXHIBIT A DESIGNATED PROJECTS 2014-2015 Purpose Fountain Hills Unified School District GoldenEagle Education Foundation,Inc. Boys&GirlsClubs River of Time Museum Award $49,000.00 $3,044.07 $10,000.00 $5,000.00 $67,044.07 Contact Ken Buchanan 480-816-5100 Ken Buchanan 480-816-5100 Ken Buchanan 480-816-5100 Ken Buchanan 480-816-5100