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HomeMy WebLinkAbout1997-253NOTE Amended by Ordinance No. 98-295 ORDINANCE NO 4 AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE SCHOLARS PHAIR FOUNDATION, INC FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the Mayor is hereby authorized to execute an agreement between the City of Denton and the Scholars Phair Foundation, Inc for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof SECTION II That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the — day of 1997 JAC LER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY A eP AGREEMENT BETWEEN THE CITY OF DENTON AND THE SCHOLARS PHAIR FOUNDATIONP INC. (97-98) PROVIDING FOR THE PAYMENT AND UBE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a muni- cipal corporation (the "CITY"), and the Scholars Phair Foundation, Inc., a legal entity existing under the laws of the State of Texas (the "FOUNDATION"): WHEREAS, TEX. TAX CODE S 351.002 authorizes the CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by Ordinance, the CITY has provided for the assess- ment and collection of a municipal alhdotel occupancy tax in the City of Denton of seven percent (7%); WHEREAS, TEX. TAX CODE S351.101 (a) authorizes the CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and ional ms to convention delegates oortregistrants ato the municipality touriststtract municipal ty or its vicinity; and WHEREAS, the FOUNDATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE S351.101 (c) authorizes the CITY to delegate by contract with the FOUNDATION as an independent entity the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, the CITY and the FOUNDATION agree and contract as follows; I. HOTEL TAX REVENUE PAYMENT TO FOUNDATION 1.1 Consideration. For and in consideration of the activities to be performed by the FOUNDATION under this Agreement, the CITY agrees to pay to the FOUNDATION a portion of the hotel tax revenue collected by the CITY at the rates and in the manner specified herein (such by the CITY to FOUNDATION herein referred atoeass"the e agreed payments" "or sometimes "hotel tax funds"). 1.2 Amount of Payments to Foundation. (a) As used in this agreement, the following terms shall have the following specific meanings: (i) The "hotel tax revenue" shall mean the monies col- lected and received by the CITY during any relevant period of time (i.e., fiscal year or fiscal quarter) as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to TEX. TAX CODE §351.002 and City Ordinance, together with and including any sums of money received by the CITY from taxpayers during any relevant fiscal quarter or calendar month as attorney's fees, court costs, or other expenses of collection of hotel tax, but excluding interest and penalties received by the CITY from taxpayers. (ii) The term "base payment amount" shall mean an amount of money equal to the total hotel tax revenue collected by the CITY during any relevant period of time (i e. fiscal year or fiscal quarter), less (1) such amounts incurred during such relevant period of time for costs of collection of hotel taxes from taxpayers or auditing taxpayers for tax payment compli- ance, such collection and auditing costs to include fees paid to attorneys or agents not in the regular employ of the CITY and which attorneys or agents effect collection of the hotel tax from taxpayers or audit such taxpayers; and (2) court costs and expenses incurred in litigation against or auditing of such taxpayers. (b) The CITY shall pay to FOUNDATION an amount of money equal to one and forty-seven one hundredths of a percent (1.47i) of the base payment amount for the period of October 1, 1997 through September 30, 1998 or Ten Thousand Dollars ($10,000.00), whichever is less. 1.3 Dates of Payments to Foundation. (a) The term "quarterly payments" shall mean payments by the CITY to the FOUNDATION of those amounts specified in 11.2 above as determined by the hotel tax revenue collected by the CITY during any one fiscal quarter during the term of this Agreement. (b) CITY shall pay the FOUNDATION the agreed payments specified in J[1.2 above by quarterly payments paying one and forty- seven one hundredths of a percent (1.47%) of the base payment amount (quarterly) for the first three quarters of the fiscal year and the percentage of the base payment amount for the last quarter of the fiscal year shall be adjusted so that the total of the quarterly base payment amounts shall not exceed Ten Thousand PAGE 2 Dollars ($10,000) during the 1997-98 fiscal year. Each such quarterly payment shall be paid to the FOUNDATION on or before the forty-fifth (45th) day after the last day of such respective fiscal quarter for which such payment is due. If quarterly financial and performance reports are not received within thirty (30) days of the end of the applicable quarter, then CITY may withhold the quarterly payments) until the appropriate reports are received and approved. (c) The funding of this project in no way commits the CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of the FOUNDATION. (d) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of the CITY. II. USE OF HOTEL TAX REVENUE BY FOUNDATION 2.1 Use of Funds. For and in consideration of the payment by the CITY to the FOUNDATION of the agreed payments of hotel tax funds specified above, the FOUNDATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or regis- trants to the municipality or its vicinity, as authorized by TEX. TAX CODE S 351.101(a). 2.2 Administrative Costs. The hotel tax funds received from the CITY by the FOUNDATION may be spent for day-to-day operations, sup- plies, salaries, office rental, travel expenses, and other admini- strative costs that are incurred directly in the performance by the FOUNDATION of those activities specified in 12.1 above and are allowed by TEX. TAX CODE S 351.101(f). 2.3 specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the FOUNDATION for which hotel tax funds may be used shall not exceed that portion of the FOUNDATION'S administrative costs actually incurred in conducting the activities specified in 12.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. PAGE 3 III. RECORD KEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) On or about September 1 and prior to the disbursement of any funds for the 1997-98 fiscal year, the FOUNDATION shall prepare and submit to the City Manager of the CITY an annual budget for such fiscal year for the FOUNDATION and any other operation or function of the FOUNDATION in which the hotel tax funds shall be used by the FOUNDATION. This budget shall specifically identify proposed expenditure of hotel tax funds by the FOUNDATION. In other words, the CITY should be able to audit specifically where the funds in the separate account relating to hotel tax funds will be expended. The CITY shall not pay to the FOUNDATION any hotel tax revenues as set forth in Section I. of this contract during any fiscal year of this Agreement unless a budget for such respective fiscal year has been approved in writing by the Denton City Council authorizing the expenditure of funds in such Section I. (b) The FOUNDATION acknowledges that the approval of such budget by the Denton City Council creates a fiduciary duty in the FOUNDATION with respect to the hotel tax funds paid by the CITY to the FOUNDATION under this Agreement. The FOUNDATION shall expend hotel tax funds only in the manner and for the purposes specified in S 351.101(a) TEX. TAX CODE and in the budget as approved by the CITY. 3.2 Separate Accounts. The FOUNDATION shall maintain any hotel tax funds paid to the FOUNDATION by the CITY in a separate account 3.3 Financial Records. The FOUNDATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by the FOUNDATION and, upon reasonably advance written request of the Denton City Council or the City's Assistant City Manager of Finance or his designee or other person, shall make such financial records available for inspection and review by the Denton City Council or the City's Assistant City Manager of Finance or his designee or other person. 3.4 Quarterly Reports. Within thirty days after the end of every quarter, the FOUNDATION shall furnish to the CITY (1) a performance report of the work performed under this Agreement, in the form determined by the City Manager describing the activities performed under this Agreement during that quarter, and (2) a list of the expenditures made with regard to hotel tax funds pursuant to the TEX. TAX CODE ANN. S 351.101(c) (Vernon 1994). The FOUNDATION shall promptly respond to any request from the City Manager of the CITY for additional information relating to the activities performed under this Agreement. PAGE 4 �ply 3.5 Notice of NO I The FOUNDATION shall give the City Manager of the CITY advance written notice of the time and place of general meeje�tings of the Scholars Phair Foundation, Inc. Board of Directors, as well as any other meeting of any constituency of the FOUNDATION at which this Agreement or any matter the subject of this Agreement shall be considered. This provision shall not be deemed to require the FOUNDATION to give notice of any executive session of the Executive Committee of the FOUNDATION. Iv. REIMBURSEMENT AND INDEMNIFICATION 4.1 Reimbursement of Association for Administrative Costs. In the event that this Agreement is terminated pursuant to Section 5.2(a), the CITY agrees to reimburse the FOUNDATION for any and all expenses and costs undertaken by the FOUNDATION in performance of those activities specified in 1[2.1 above or expenses or costs incurred by the FOUNDATION as described in 12.2 above. The CITY is obligated to reimburse the FOUNDATION for expenses and costs as described in 12.2 above only for the period commencing upon the date notice of termination is given and ending upon the date of termination. Further, this obligation shall be limited to the lesser of the actual expenses and costs incurred by the FOUNDATION during the one hundred eighty day period preceding termination or the agreed payments otherwise due and payable to the FOUNDATION for such period. 4.2 Reimbursement of Foundation for Contractual obligations. In the event that this Agreement is terminated pursuant to Section 5.2(a), the CITY agrees to reimburse the FOUNDATION for any and all contractual obligations of the FOUNDATION undertaken by the FOUNDATION in performance of those services specified in 412.1 above, conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in 12.1 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of the CITY to reimburse the FOUNDA- TION or to assume the performance of any contractual obligations of the FOUNDATION for or under any contract entered into by the FOUNDATION as contemplated herein shall not exceed FIVE HUNDRED DOLLARS ($500.00). Such monetary limitation is cumulative of all contractual obligations and shall not be construed as a monetary limitation on a per contract basis. 4.3 Payment of Reimbursement to Foundation. (a) With respect to expenses and costs incurred by the FOUNDATION for which the CITY is obligated to reimburse the FOUNDATION pursuant to 14.1 above, the CITY shall pay such PAGE 5 reimbursement amount due, if any, to the FOUNDATION on or before the forty-fifth (45th) day after the date of termination of this Agreement. (b) With respect to contractual obligations undertaken by the FOUNDATION for which the CITY is obligated to reimburse the FOUNDATION as provided in Q4.2 above, the CITY shall reimburse the FOUNDATION for such monetary obligations required in such contrac- tual obligation in such amounts and at those times such contractual costs and expenses are due and payable according to the terms of such contract limitation set forth in T4.2 above. 4.4 Indemnification. The FOUNDATION agrees to indemnify, hold harmless, and defend the CITY, its officers, agents, and employees from and against any and all claims or suits for injuries, damage, loss, or liability of whatever kind or character, arising out of or in connection with the performance by the FOUNDATION or those services contemplated by this Agreement, including all such claims or causes of action based upon common, constitutional or statutory law, or based, in whole or in part, upon allegations of negligent or intentional acts of FOUNDATION, its officers, employees, agents, subcontractors, licensees and invitees. V. TERM AND TERMINATION 5.1 Term. The term of this Agreement shall commence on October 1, 1997 and terminate at midnight on September 30, 1998. This term shall be a period of one year. 5.2 Termination. (a) This Agreement may be terminated by either party by giving the other party one hundred eighty (180) days advance written notice. (b) This Agreement shall automatically terminate upon the occurrence of any of the following events: (1) The termination of the legal existence of the FOUNDATION; (ii) The insolvency of the FOUNDATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by the FOUNDATION for the benefit of credi- tors; PAGE 6 (iii) The continuation of a breach of any of the terms or conditions of this Agreement by either the CITY or the FOUNDATION for more than thirty (30) days after w b tten then tier otice of such breach is given to the breaching partY Y party; or (iv) The failure of the FOUNDATION to submit a financial report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term. VI. GENERAL PROVISIONS 6.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agree- ment by the FOUNDATION with another private entity, person, or organization for the performance of those services described in J[2.1 above. In the event that the FOUNDATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, the FOUNDATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE Chap. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 6.2 independent contractor. The FOUNDATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of the CITY. The FOUNDATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the FOUNDATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The FOUNDATION shall not be considered a partner or joint venturer with the CITY, nor shall the FOUNDATION be considered nor in any manner hold itself out as an agent or official representative of the CITY. 6.3 Assignment. The FOUNDATION shall not assign this Agreement without first obtaining the written consent of the CITY. 6.4 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand-delivery,addressed the respective parties as follows: PAGE 7 CITY FOUNDATION City Manager Chairman/Director City of Denton Scholars Pha1r Foundation, Inc. 215 E. McKinney 210 S. Elm, Suite A Denton, TX 76201-4299 Denton, TX 76201 6.5 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the CITY and the FOUNDATION and their respective successors and assigns. 6.6 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 6.7 SRclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or under- standings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this agree- ment, which are not fully expressed herein. The terms and con- ditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions 6.8 Duplicate originals. This Agreement is executed in duplicate originals. 6.9 Headings. The headings and subheadings of the various sec- tions and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. EXECUTED this a�4 day of -_, 1997. THE CITY OF DENTON, TEXAS By: JAC ILLER, MAYOR PAGE 8 ATTEST: APPROVED AS TOO LEGAL FORM' B By: y JALTERS, HERBERT L. PROUTY, C(iTY SECRETARY CITY ATTORNEY ATTEST: SCHOLARS PHAIR FO DATION, INC. G By: Chairman/ rector APPROVED AS TO LEGAL FORM: By: By: Secretary A \SCHOLARS K PAGE 9 ORDINANCE NO /,J-�a�- AN ORDINANCE OF THE CITY OF DENTON, TEXAS EXTENDING ELEVEN CONTRACTS BETWEEN THE CITY OF DENTON, TEXAS AND THE NOTED CURRENT RECIPIENTS OF HOTEL OCCUPANCY TAX ("HOT") FUNDS, AND PRESCRIBING AN EFFECTIVE DATE WHEREAS, on September 2, 1997, the Council of the City of Denton, Texas passed Ordinance numbers 97-243, 97-244, 97-245, 97-247, 97-248, 97-249, 97-250, 97-251, 97-252, 97- 253 and 97-254, (the "Approval Ordinances") approving and authorizing funding for certain contracts with a number of outside organizations for Fiscal Year ("FY") 97-98, pursuant to Chapter 351 of the Texas Tax Code, and WHEREAS, each of the aforesaid contracts provided for post -performance reimbursement of services rendered during each quarter of the fiscal year in the promotion of tourism, and WHEREAS, in the future, the City Council wishes to award such momes on a quarterly basis, in advance of performance, during each quarter of the calendar year, commencing with Calendar Year 1999, and WHEREAS, as a result of the foregoing, it will be necessary to extend the term of the existing contracts for three months, in order to secure performance of these services during the months of October, November and December of 1998, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the terms of the contracts authorized by the aforementioned Approval Ordinances are hereby authorized by the City of Denton to be extended under their existing terms for a period of three months, except that paragraphs 12(b) and 5 1 of each such contract are hereby modified upon acceptance to the extent that they are inconsistent with this Ordinance, such that all duties set forth for performance prior to September 30, 1998 shall be performed by December 31, 1998, and such that no additional payment to the other parties named in said contracts for services rendered during October, November and December 1998, shall be paid after payment of the fourth quarter payment already defined in the contract SECTION II That passage of this ordinance constitutes a revocable offer of the City of Denton, Texas, which may be accepted by each of the other parties, either by written confirmation, or by performance of the duties set forth in the applicable contracts during the extended term, after delivery of a copy of this ordinance to the other parties, in the manner established in paragraph 6 5 of each applicable contract SECTION III That this ordinance shall become effective immediately upon its passage and approval Page 1 of 2 741, PASSED AND APPROVED this the /5_day of � 1998 ATTEST- JENNIFER WALTERS, CITY SECRETARY BY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY ' Page 2 of 2