HomeMy WebLinkAboutRes 2004-42 RESOLUTION NO. 2004-42
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING AN INTERGOVERNMENTAL
AGREEMENT WITH THE FORT MCDOWELL YAVAPAI NATION FOR
PROPOSITION 202 FUNDING FOR THE FOUNTAIN HILLS CHAMBER OF
COMMERCE TOURISM BUREAU.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION 1. That the Intergovernmental Agreement (the "Agreement") between the
Town of Fountain Hills and the Fort McDowell Yavapai Nation for Proposition 202 funding for
the Fountain Hills Chamber of Commerce Tourism Bureau is hereby approved in the form
attached hereto as Exhibit A and incorporated herein by reference.
SECTION 2. That the Mayor, the Town Manager, the Town Clerk and the Town
Attorney are hereby authorized and directed to take all steps necessary to cause the execution of
the Agreement.
PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills,
Arizona, August 19, 2004.
Low FOR THE TOW FOUNTAIN HILLS: ATTESTED TO:
W. J. ols, Ma Bevelyn J. n r,Town Clerk
REVIEWED BY: APPROVED AS TO FORM:
Timothy✓G. Pickering,Town Manager Andrew J. McGuire, own Attorney
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Intergovernmental Agreement
Between
The Town of Fountain Hills and the Fort McDowell Yavapai Nation
To
Provide Funds For Promoting Tourism 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. Town and Nation may enter into an agreement with one another for the distr
ibution 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(1) 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. Town and Nation desire to enter into this Agreement to provide funds for the purpose of
promoting tourism in the State of Arizona and specifically the Town of Fountain Hills and
surrounding communities (hereinafter the "Project"). An approved scope of work shall be
appended hereto as Exhibit A governing the terms and conditions on the use of these funds.
E. Town and Nation desire to enter into this Agreement to define the terms and conditions of
this Project.
F. The total cost of the Project is $45,000.
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G. $45,000.00 is hereby made available for the Project from revenue generated by the Nation's
Gaming Enterprise also known as the Fort McDowell Casino.
H. The Nation intends to provide $45,000.00 (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 to complete the Project.
I. Town and Nation have agreed that the Town shall complete the Project according to the
terms and conditions set forth herein in addition to any supplemental agreements attached or
incorporated by reference in consideration of the Nation providing the Funds.
J. Town and Nation have agreed that this Project shall commence on the Effective Date of this
Agreement, as defined below, and shall be completed within one (1) year after said date.
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. Project. The Project consists of the Nation providing the Funds to the Town to work with
the Fountain Hills Chamber of Commerce Tourism Bureau (the "Tourism Bureau") to
promote tourism in the Town of Fountain Hills and surrounding area. The Nation and the
Town hereby approve the scope of work for the Project setting forth the activities, programs
and uses to be covered by the Funds (the "Scope of Work"), attached hereto as Exhibit A and
incorporated herein by reference.
2. Town Project Design and Management Responsibilities. The Town shall design and
manage the Project pursuant to the Scope of Work.
3. Amendments to Approval of Scope of Work. After the Scope of Work has been approved
as part of this Agreement, it shall not be amended, modified, or changed without the Nation's
written consent.
4. Project Manager and Nation Representative. Town shall designate a Project Manager,
and the Nation, at no cost to the Town, may designate a representative to liaison with the
Project Manager during the performance of this Project.
5. Financing; reporting.
A. Nation Deposit. The Nation shall deposit with the Town the amount of $45,000.00
within seven (7) days of the Effective Date of this Agreement.
B. Reporting. Town shall submit a budget and report of expenditures along with any
narrative report required according to the terms of this Agreement (i) six months after the
Effective Date and (ii) within thirty (30) days after completion of this Project.
C. Project Cost Savings. Town shall refund any amount of the Funds not expended for the
Project.
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D. Use of Funds for Purposes Other Than to Fulfill Agreement and Scope of Work. Town
shall use the Funds for the express purpose contained herein and Exhibit A. and is
prohibited from using funds to supplant current or future funding levels. Any other use
of a portion or all of the Funds for a purpose other than to fulfill this Agreement and
Scope of Work shall constitute a material breach of this Agreement. In the event of a
material breach, Town shall further lose future consideration for award of Section 12
Funds.
6. Inspection and Audit. To ensure compliance with the Scope of Work, 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. Duly authorized representatives of the Nation
may perform an inspection or conduct a reasonable audit of books and records pertaining to
the Project which are maintained by the Town in order for the Nation to satisfy itself that the
monies on the Project have been spent and the Project completed in accordance with this
Agreement. Town shall allow Nation reasonable access to the Project site and records
pertaining thereto. 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 remain in full
force and effect for a period of one (1) year thereafter. The Town shall have completed
the Scope of Work with this term.
C. Termination.
i. For Cause. The Nation may terminate this Agreement for material breach of the
Agreement by the Town, as described below. Prior to any termination under this
paragraph, the Town shall be given written notice by the Nation of the nature of
the alleged default. For any material breach other than misuse of the Funds, the
Town shall have twenty (20) days to cure the default; the Town shall have ten
(10) days to cure a default relating to misuse of the Funds. The following shall be
considered a material breach:
1. Persistent disregard of applicable laws, ordinances, or rules and
regulations or public authority having jurisdiction;
2. Refusing or failing to perform under this Agreement with such diligence
as will ensure its timely completion within the agreed upon time, or failure
to complete the work with such time; or
3. Use of the Funds to perform work outside the purpose of this Agreement,
including the Scope of Work.
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4. Failure to comply with the budgeting and reporting requirements set forth
in Section 5 above.
5. Failure to comply with the audit and inspection requirements set forth in
Section 6 above.
ii. For Convenience. The Nation may terminate this Agreement for convenience by
giving thirty (30) days written notice to the Town. Such termination shall not
relieve either party from those liabilities or costs already incurred under this
Agreement.
8. Indemnification.
A. Indemnification. The Town shall indemnify, defend, and hold harmless the Nation, 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 Town, its employees or agents in performing the
duties set forth in this Agreement. For other matters arising from the Town's
performance of this Agreement and Exhibit A, the Town agrees to hold harmless the
Nation, its governing body, officers, departments, employees and agents.
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 superceded 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.
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D. Relationship of the Parties. Neither party shall be deemed to be an employee or agent of
Lthe 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
and agreement on a substitute provision.
10. Waiver. Waiver 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. Force Majeure. 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. "Uncontrollable forces" means any cause beyond the control
of the party affected, including but not limited to flood, earthquake, fire, epidemic, Acts of
God, or an order declaring a national emergency, which by exercise of due diligence and
foresight, such party could not reasonably have been expected to avoid. Either party
L. rendered unable to fulfill any obligations by reason of uncontrollable forces shall exercise
due diligence to remove such inability with all reasonable dispatch.
12. Notification. Any notice or other communication required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been duly given if (i)
delivered to the party at the address set forth below, (ii) deposited in the U.S. Mail, registered
or certified, return receipt requested, to the address set forth below or (iii) given to a recog-
nized and reputable overnight delivery service, to the address set forth below:
For the Fort McDowell Yavapai Nation:
Raphael Bear, General Manager Ronald Rosier, 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:
Timothy Pickering, Town Manager Andrew McGuire, Town Attorney
Town of Fountain Hills JORDEN BISCHOFF MCGUIRE ROSE& HISER, P.L.C.
16836 Palisades Boulevard 7272 East Indian School Road, Suite 205
Fountain Hills, AZ 85268 Scottsdale, AZ 85251
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or at such other address, and to the attention of such other person or officer, as any party may
designate in writing by notice duly given pursuant to this Section. Notices shall be deemed
received (i) when delivered to the party, (ii) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage or (iii) the following business day after
being given to a recognized overnight delivery service, with the person giving the notice
paying all required charges and instructing the delivery service to deliver on the following
business day. If a copy of a notice is also given to a party's counsel or other recipient, the
provisions above governing the date on which a notice is deemed to have been received by a
party shall mean and refer to the date on which the party, and not its counsel or other
recipient to which a copy of the notice may be sent, is deemed to have received the notice.
13. 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.
14. Non-Waiver of Sovereign Immunity. Nothing in this Agreement or Exhibit A shall be
construed to waive the Sovereign Immunity of the Nation.
IN WITNESS WHEREOF, The Town of Fountain Hills has caused this Intergovernmental
Agreement to be executed by the Town Manager, 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 Clerk. This Agreement is effective upon signature of a duly appointed representative of the
Fort McDowell Yavapai Nation.
ATTEST: FORT MCDOWELL YAVAPAI NATION
Pansy Thomas Raphael R. Bear
Secretary, Tribal Council President, Tribal Council
Fort McDowell Yavapai Nation Fort McDowell Yavapai Nation
Date
ATTEST: TOWN OF FOUNTAIN HILLS
(7-
Bevelyn J. B "der Timot G. Pickering
Town Clerk Town Manager
Town of Fountain Hills Town of Fountain Hills
Date
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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.
Ronald Rosier, 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.
rs), Ly,.
JU n.� 0-li-041
Andrew J. McGuire, Town Attorney Date
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EXHIBIT A
,,. SCOPE OF WORK
SCOPE OF WORK
If granted additional designated tourism funding from the Fort McDowell Yavapai Nation under
the provisions of Proposition 202, The Fountain Hills Chamber of Commerce Tourism Bureau
will be able to broaden the awareness of the "FOUNTAIN HILLS / FORT MCDOWELL —
TAKE A PEAK" destination, as well as increase its advocacy for regional tourism development
efforts to benefit the Fountain Hills and Fort McDowell communities. The following outlines
intentions for programs that would be funded:
• Public Relations/Publicity $20,000.00
• Trade Show Display $10,000.00
• Media Familiarization Tours $10,000.00
• Tour Operators/Travel Agents Familiarization Tours $ 5,000.00
TOTAL $45,000.00
Public Relations/Publicity
Notable success with obtaining publicity for the Fountain Hills / Fort McDowell destination has
Ihiw been achieved through the retention of a professional public relations firm. Image Quest Public
Relations has been the contractee for this work during the past fiscal and it is anticipated they
will continue in that capacity. Various articles about the destination — and about Fort McDowell
in particular were generated this past year, amounting to many thousands of dollars worth of
positive exposure. A principle use of funds received from the Fort McDowell Nation for the
coming year will be for the continuation and expansion of these PR efforts.
Trade Shows &Trade Show Display
The Fountain Hills / Fort McDowell destination spent the past year preparing for being able to
properly exhibit at trade shows. Trade shows are a proven effective means of developing new
business by meeting first-hand with entities and individuals from the trade that generate visitors
(tours) to, as well as publicity for, destinations. The creation of a logo/brand and business
systems including presentation folders, as well as the production of the new official guidebook
give the Bureau the basic promotional elements needed to effectively operate at a trade show.
The important remaining missing element is a trade show display that draws attention to the
destination and its brand amid the scores of competing displays at any given show. The first
order of business in utilizing funding from the Fort McDowell Nation will be to obtain the
needed trade show display.
Attending trade shows involves various costs including exhibit rentals and related drayage,
equipment and services fees, and travel and entertainment costs. A $30,000 budget for trade
shows should allow for the Bureau to attend at least 6 selected trade shows during the year.
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Media&Trade Familiarization Tours
kby Familiarization tours are highly effective means of promoting a destination as they afford the
opportunity to have important clients (tour operators; travel agents) and media representatives
(trade and consumer publication editors & writers) experience the features and benefits of a
destination first hand. Ideally, these "fam" tours result in new tour programs being developed
and sold by tour operators, and new stories being written and published about the destination, the
value of which is considerable as compared to the cost of placing advertising.
Scope of Work
Page 2
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