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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
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
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(bXI) 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(AX15)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
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 Entity", 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 Entity.
F. The amount of$30,000.00 is hereby made available for the Designated Entity from revenue generated
by the Nation's Gaming Enterprise also known as the Fort McDowell Casino.
G. 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.
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 and/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.
D. Cancellation. Each party acknowledges that the Town has the statutory right for three(3)years to
cancel this Agreement if. while this Agreement or any extension is in effect, any person
significantly involved in negotiating, drafting or securing this Agreement on behalf of any party is
(i) an employee or agent of the other party in any capacity, or(ii) a consultant to the other party
with respect to the subject matter of this Agreement, as provided pursuant to AR.S. § 38-511.
8. Indemnification.
A. Indemnification. 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
3
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.
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,President Diandra Benally,General Counsel
Fort McDowell Yavapai Nation Fort McDowell Yavapai Nation
P.O. Box 17779 P.O. Box 17779
Fountain Hills,AZ 85269 Fountain Hills,AZ 85269
For the Town of Fountain Hills:
Grady Miller,Town Manager Mitesh V. Patel
Town of Fountain Hills Town Attorney
16705 E.Avenue of the Fountains Dickinson Wright
Fountain Hills,AZ 85268 1850 N.Central Avenue, Suite 1400
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]
4
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 Clerk of the Town, 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 Secretary.
This Agreement is effective upon signature of a duly appointed representative of the Fort McDowell
Yavapai Nation.
ATTEST: FORT MCDOWELL YAVAPAI NATION
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411r-
41r, 1 de '
Ver ene Enos, Secretary Bernadine Burnette
Fort McDowell Yavapai Nation President, Tribal Council
6i d Fort McDowell Yavapai Nation
'743 hea
Date Date
ATTEST: TOWN OF FOUNTAIN HILLS
_ I . // - .i _ 41.
lizabeth ' ke, Town e• . Kavan , Mayor
Tom n o tam Hills Town of Fountain Hills
D7-i ff•C 7 Date . • t
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(AX15), 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.
Piand ‘ii—'4"
r49‘. /Se/P
a Benally,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 of the State of Arizona.
Mite- . ' el,Town Attorney D to
To; of . tam Hills
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EXHIBIT A
DESIGNATED ENTITY
Entity(s) Purpose Award Contact
Town of Fountain Hills Community Improvement $30.000,00 Jenny Willigrod
Cultural and Civic Association Community Garden Project
TOTAL $30,000.00
RESOLUTION 2018-54
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING INTERGOVERNMENTAL AGREE-
MENTS WITH THE FORT MCDOWELL YAVAPAI NATION RELATING TO
PROPOSITION 202 FUNDING
ENACTMENTS:
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as
follows:
SECTION 1. The Intergovernmental Agreements 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 "Agreements") are hereby approved in substantially the form and
substance attached hereto as Exhibits A, B, C, D, and E, 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 Agreements 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, on
September 11, 2018.
FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO:
. Kavan ayor i '_.eth A. e, Town Clerk
REVIEWED BY: APPROVED AS TO FORM:
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Gra E. Mi -r, T.wn Manager Mites V tel, Interim Town Attorney
Dic on ht, PLLC