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1998-421AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE NORTH TEXAS STATE FAIR FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS ~ That the Mayor ~s hereby anthonzed to execute an agreement between the C~ty of Denton and the North Texas State Fmr for the payment and use of hotel tax revenue, under the, terms and eondmons contmned m the agreement, a copy of which is attached hereto and made a part hereof T~~ That th~s ordinance shall become effective immediately upon ~ts passage and approval 1998 ATTEST JENNIFER WALTERS, CITY SECRETARY AGREEMENT BETWEEN THE CITY OF DENTON AND NORTH TEXAS STATE FAIR (CY1999-2001) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AOREEMENT made between the Caty of Denton, Texas, a mumcapal corporatmn (the "CITY"), and the North Texas State Fart, a non-profit corporataon, incorporated under the laws of the Sta~e of Texas (the "FAIR") WltEREAS, Tex Tax Code §351 002 authorizes the CITY to levy by orchnanee a mummpal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the eonsaderataon prod by a hotel occupant, and WHEREAS, by ordinance, the CITY has provided for the assessment and eolleetmn of a mumeapal hotel occupancy tax m the Caty of Denton of seven percent (7%), and WHEREAS, Tex Tax Code {}351 101(a) authorizes the CITY to use revenue from ars mumeapal hotel occupancy tax to promote tounsm and the convention and hotel industry by adve~smg and conducting sohcatat~ons and promotional programs to attract tourists and convention delegates~or regastrants to the mumclpallty or ats mc~mty, and WHEREAS, the FAIR ~s well eqmpped to perform those actlvat~es, and WHEREAS, Tex Tax Code {}351 101(c) authorizes the CITY to delegate by contract w~th the FAIR, as an andependent entity, the management and supervasaon of programs and actavlt~es of the type described heremabove funded wtth revenue from the municipal hotel occupancy tax, NOW, THEREFORE, m constderataon of the performance of the mutual covenants and prormsas contained herem, the CITY and the FAIR agree and contract as follows I. HOTEL TAX REVENUE PAYMENT 1.1 Consaderat~on. For and m consaderat~on of the act~wt~es to be performed by the FAIR under this Agreement, the CITY agrees to pay to the FAIR a portaon of the hotel tax revenue collected by the CITY at the rates and m the manner spemfied hereto (such payments by the CITY to the FAIR sometamas hereto referred to as the "agreed payments" or "hotel tax funds") 1 2 Amount of Payments. (a) As used m ttus Agreement, the following terms shall have the following specffic meanings 0) The term "hotel tax revenue" shall mean the gross momes collected and receaved by the Caty as mumcapal hotel occupancy tax at the rate of seven pement (7%) of the price prod for a room an a hotel, pursuant to Texas Tax Code 351 002 and C~ty Ordanance Hotel tax revenue w~ll include penalty and anterest related to the late payments of the tax revenue by the taxpayer 00 The term "Colleclaon period" will mean the collecUon period for the CITY's fiscal year It will include hotel tax revenue due to the City for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year (m) The term "base payment amount" shall mean a net amount of money equal to ,the total hotel tax revenue collected by the CITY dunng any relevant period of tame (t e, fiscal year or fiscal quarter), less (1) attorney and audltmg costs incurred dunng such relevant period of t~me for costs of collection or auditing of hotel t~xpayers Aitomey and auchtmg costs include fees prod to attorneys or agents not in the regular employ of the CITY for wluch attorneys or agents effect compliance or collectaon of the hotel tax from taxpayers, and (2) court costs and other expenses incurred m litigauon against or auchtang of such taxpayers (iv) The term "contract quarter" shall refer to any quarter of the calendar year m which fins Agreement is in force Contract quarters will end on March 31st, June 30t~, September 30t~, and December 31 ~ of each contract year (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, the CITY shall pay to FAIR an amount of money in each contract year equal to the lesser amount of Nme and Eighty-Two One Hundredths percent (9 82%) of the annual base payment amount or the fixed contract amount of Eighty-one Thousand Six Hundred Two Dollars ($81,602) This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless the CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year The fourth quarterly payment will represent 25% of the fixed contract amount or the unpmd remmnder of 9 82% of the base payment amount, whichever is less Each quarterly payment is subject to receipt of unused funds from the prior contract period and the receipt of the reqmred quarterly reports Funchng for calendar year 2000 and calendar year 2001 IS dependent upon, and subject to, budget a@proval by the City Council for those periods Upon, and subject to, budget approval, the budgeted annual payment for calendar years 2000 and 2001 are subject to an annual escalation of not more,than 4% 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by the CITY to the FAIR of those amounts,specified m ¶1 2, above, as determined by the hotel tax revenue collected (b) Each quarterly payment shall be prod upon receipt of the required reports and after the 25th day following the last day of the contract quarter If quarterly financial and performance reports are not received wiflun tlurty (30) days of the end of the applicable contract quarter, the recipient may be held m breach of flus Agreement The CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, wtuch approval shall not unreasonably be withheld P~e2 1.4 Other hmitations regardmg consideration. (a) The funding of ttus project m no way conmuts the CITY to future fundtng of ttus program beyond the current contract period Any future fundtng ts solely the respons~blhty of the FAIl{ (b) It is expressly understood that thts contract m no way obhgates the General Fund or any other momes or credits of the CITY Further, FAIR understands that funding for the CY2000 and CY 2001, years ts expressly contingent upon the avadabthty and allocaUon of budgeted hotel tax funds during CITY's FY1999-2000 and FY2000-2001 budget years, respecttvely (¢) CITY may vothhold further allocatmns ff CITY determines that FAIR's expenchtures devtate materially from thetr approved budget II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and m constderat~on of the payment by the CITY to the FAIR of the agreed payments of hotel tax funds speetfied above, the FAIR agrees to use such hotel tax funds only for advemsmg and conducting sohcttatlons and promotional programs to attract tourists and convention delegateslor registrants to the mumctpahty or tts Vtclmty,, as authorized by T~X T^x CODe §351101 (a) Funds for any calendar year whtch are unused by mtdmght December 31 st of that year shall be refunded to CITY w~tlun tturty 00) days 2.2 Admlnistratlve Costs. The hotel tax funds recetved from the CITY by the FAIR may be spent for day-tO-day operataons, supphes, salaries, office rental, travel expenses, and other adrmmstrat~ve costs thatlare tncurred chrectly tn the performance by the FAIR of those acttvmes specffied m ¶21 above an~ are allowed by TEX T^x CoI~. § 351101 (0 2.3 Specific Restrictions on Use of Funds. (a) That portion of total admmastmt~ve costs of the FAIR for wbach hotel tax funds may be used shall not exceed that pomon of the FAIR's admamstrat~ve costs actually mcurred m conducting the acttxat~es specified m ¶21 above (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an act~vtt~ the prmmry purpose of winch ts not dtrectly related to the pro ,motion of local tourism and the conv~mt~on and hotel industry or the performance of the person s job m an effictent and professtoaal manner III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Bladget. (a) The FAIR shall prepare and submtt to the C~ty Manager of the CITY an annual budget (see Exhtbtt "A") as approved by the City Council for each calendar year, for such operattons of the FAIR m Whtch the hotel tax funds shall be used by the FAIR This budget shall spectfically tdentffy proposedlexpendatures of hotel tax funds by the FAIR In other words, the CITY should be able to audtt specifically where the funds m the separate account relatmg to hotel tax funds will be Page 3 expended The CITY shall not pay to the FAIR any hotel tax revenues as set forth m Section I of this contract dunng any fiscal year of tlus Agreement unless a budget for such respeetave fiscal year has been ,approved in writing by the Denton City Council authorizing the expenchture of funds Fmlure to submit an annual budget may be considered a breach of contract, and if not remedied is considered grounds for tenmnataon ofthts Agreement as stated m paragraph 4 2 (b) The FAIR acknowledges that the approval of such budget by the Denton City Council creates a fiduciary duty in the FAIR wtth respect to the hotel tax funds prod by the CITY to the FAIR under this Agreement The FAIR shall expend hotel tax funds only in the manner and for the purposes specified m fins Agreement, Tex T^x CODE §351 101(a) and m the budget as approved by the CITY 3.2 Separate Accounts. The FAIR shall maintain any hotel tax funds paid to the FAIR by the CITY m a separate bank account wath segregated accounting, such that any reasonable person can review the source of expenchtures of tax funds A bank reconciliation report (see Exhibit "B") is required w~th each quarterly report 3 3 Financial Records. The FAIR shall maintain complete and accurate financial records of each expendtture of the hotel tax funds made by the FAIR These funds are reqmred to be classffied as restricted funds for audited financial purposes, and may not be used for supporting services, including, but not lmnted to, auchtmg fees and attorney's fees Upon reasonably advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records avmlable for mspeetaon and review by the party malang the request FAIR understands and accepts that all such financial records, and any other records relating to tins Agreement shall be subject to the Pubhc Information Act, TEX GOV'T CODE, ch 552, as hereafter amended 3.4 Quarterly Reports. W~thm flurty days after the end of every contract quarter, FAIR shall furnish to CITY (1) a performance report of the work performed under th~s Agreement describing the actavmes performed pursuant to flus Agreement during that contract quarter, and (2) a list of the expenditures made with regard to hotel tax funds pursuant to TEX T^x CODE §351 101(c) Both the performance and expenditure reports will be in a form either deterrmned or approved by the City Manager or designate (see Exhibit "B") The FAIR shall respond promptly to any request from the City Memager of the CITY, or designate, for addltaonal lnformataon relatang to the actawtaes performed under tins Agreement 3.5 Not~ee of Meetings. The FAIR shall give the City Manager of the CITY reasonable advance written notace of the tame and place of all meetings of FAIR's Board of Directors, as well as any other meeting of any constatuency of the FAIR at which flus Agreement or any matter the subject of flus Agreement shall be considered Tins provision shall not be deemed to requrre the FAIR to give notace of any executave session of the Executave Committee of the FAIR IV TERM AND TERMINATION 4 1 Term. The term of this Agreement shall commence on January 1, 1999 and terminate at m~dmght on December 31, 2001 TI'ns term shall be a period of three years Page 4 4.2 Termination W~thout Cause. (a) Tbas Agreement may be termanated by eather party, wtth or wathout cause, by giving the other party sixty (60) days advance written notaee (b) In the event thas contract as terminated by eather party pursuant to Section 4 2(a), the CITY agrees to reamburse the FAIR for any contractual oblagatlons of the FAIR undertaken by the FAIR m satasfacto~y performance of those activities specafied an ¶¶2 1 and 2 2 above and that were approved by the Council through the budget, as noted an ¶3 1 Thas reambursement as conditioned upon such contractual obligations hav~ng been recurred and entered into m the good fu~th performance of those servlees contemplated in ¶¶2 1 and 2 2 above, and further conditioned upon such contractual oblagattons having a term not exceedang the full term of th~s Agreement Notwithstanding any prowslon hereof to the contrary, the oblagatlon of the CITY to reimburse the FAIR or to assume the performance of any contractual obhgatlons of the FAIR for or under any contract entered into by the FAIR as contemplated herein shall not exceed 66 2/3% of the current quarterly payment (c) Further, upon termanatmn pursuant to ¶4 2(a), the FAIR wall provade the CITY l) W~thln l0 business days from the termmataon notaficataon, a short-term budget of probable expendatures for the remalnang 60 day peraod between termanation notification and contract termination Thts budget will be presented to Councal for approval w~thm l0 business days at~er receipt by CITY If formal approval xs not given w~thln l0 bus~ness days and the budget does not contmn any expenditures that would be probabated by the Texas Tax Code, and xs w~thm the current contractual period approved budget, the budget wall be considered approved, 2) Wathan 30 days, a full aecountang of all expenditures not previously audited by the C~ty, 3) Wlthan 5 business days of a request from the CITY, a lasting of expendatures that have occurred since the last required reportang period, 4) a final accounting of all expendatures and tax funds on the day of termanation The FAIR will be obhgated to return any unused funds or funds determaned to be used amproperly Any use of remmmng funds by the FAIR after notafication of termination as conditioned upon such contractual obligations having been ancurred and entered anto an the good faath performance of those services contemplated an 2 1 and 2 2 above, and further condltaoned upon such contractual obligations hawng a term not exceedang the full term of thas Agreement 4 3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events (a) The tenmuatxon of the legal erastence of the FAIR, (b) The insolvency of the FAIR, the fihng of a pet~taon m bankruptcy, either voluntarily or Involuntarily, or an assignment by the FAIR for the benefit of creditors, (e) The continuation of a breach of any of the terms or condltaons of tbas Agreement by either the CITY or the FAIR for more than ttnrty (30) days at~er written nouce of such breach is given to the breaching party by the other party, or P~e5 (d) The failure of the FAIR to subrmt a financial quarterly report winch complies w~th the reporting procedures reqmred harem and generally accepted accounting pnnelples prior to the begmmng of the next contract term, or quarterly as reqmred by Section 1 3 hereof 4.4 Right to Immedmte Termination Upon Lit~gataon. Notwithstanding any other provision of tins Agreement, to rmtigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to termanate tins Agreement upon nnmedlate notice to the other party m the event that any person has instituted litigation concerning the activities of the non~tenmnatmg party, and the terminating party reasonably believes that such activities are required or proininted under tins Agreement 4 5 In the event that tins Agreement is terminated pursuant to ¶¶4 3 or 4 4, FAIR agrees to refund any and all unused funds, or funds determined by the CITY to have been used improperly, within 30 days after termmation of tins Agreement V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in tins Agreement shall proinblt, nor be construed to proinblt, the agreement by the FAIR w~th another private entity, person, or orgam- zation for the performance of those services described in ¶2 1 above In the event that the FAIR enters mto any arrangement, contractual or otherwase, w~th such other entity, person or orgamzation, the FAIR shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of tins Agreement and to TEx TAX Cor>e ch 351, including reporting requirements, separate funds maintenance, and hmatatlons and proinbltions pertmmng to expenditure of the agreed payments and hotel tax funds 5 2 Independent Contractor. The FAIR shall operate as an independent contractor as to all services to be performed under tins Agreement and not as an officer, agent, servant, or employee of the CITY The FAIR shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or orgamzat~ons performing the same and the FAIR shall be solely responsxble for the acts and omissions of its directors, officers, employees, agents, and subcontractors The FAIR shall not be considered a partner or joint venturer w~th the CITY, nor shall the FAIR be considered nor in any manner hold itself out as an agent or official representative of the CITY 5 3 Indemmfieatlon. The FAIR agrees to mdemmfy, hold harmless, and defend the CITY, its officers, agents, and employees from and agmnst any and all clmms or stats for injuries, damage, loss, or habdlty of whatever kind or character, arising out of or in connection w~th the performance by the FAIR or those serwces contemplated by this Agreement, including all such claims or causes of action based upon common, constitutional or statutory law, or based, In whole or m part, upon allegations of neghgent or intentional acts of FAIR, its officers, employees, agents, subcontractors, licensees and lnwtees fi 4 Assignment. The FAIR shall not assign tins Agreement w~thout first obtaining the written consent of the CITY P~e6 5 5 Notice. Any not,ce reqmred to be g~ven under flus Agreement or any statute, orchnance, or regulation, shall be effective when g~ven m writing and deposited ~n the Umted States mml, certffied mml, return receapt requested, or by hand-dehvery, addressed to the respectave parttes as follows CITY FAIR Caty Manager North Texas State Fmr Assocmtmn C~ty of Denton James Roden 215 E McKmney Executave Darector Denton, TX 76201 P O Box 1695 Denton, Texas 76202-1695 5.6 Inurement. Ttus Agreement and each prows~on hereof, and each and every right, duty, obhgatzon, and habahty set forth hereto shall be binding upon and inure to the benefit and obhgatton of the CITY and the FAIR and thexr respeeuve successors and assagns 5.7 Appheat~on of Laws. All terms, conditions, and provisions of flus Agreement are subject to all apphcable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judm~al determmattons relative thereto 5.8 Exclusive Agreement. This Agreement contmns the entire understanding and constitutes the entire agreement between the part, es hereto concerning the subject matter contained hereto There are no representations, agreements, arrangements, or understandings, oral or written, express or amphed, between or among the partxes hereto, relating to the subject matter of flus Agreement, which are not fully expressed hereto The terms and condat~ons of this Agreement shall prevail notwithstanding any variance an flus Agreement from the terms and conditions of any other document relating to flus transaction or these transactaons 5.9 Dupheate Oragmals. Thts Agreement is executed ~n duphcate originals 5.10 }leadings. The headings and subheadmgs of the vinous sections and paragraphs of flus Agreement are inserted merely for the purpose of convemence and do not express or amply any hm~tataon, defimt~on, or extension of the specffic terms of the sectton and paragraph so designated 5 11 Severainhty. If any sectaon, subsection, paragraph, sentence, clause, phrase or word in flus Agreement, or apphcat~on thereof to any person or c~rcumstance as held ~nvalad by any court of competent jur~sdmt~on, such holding shall not affect the vahchty of the remmmng portions of flus Agreement, and the pames hereby declare they would have enacted such remalmng portions despite any such anvaldaty 5.12 Insurance. The FAIR shall proxade insurance as follows $500,000 Commemlal Oeneral Lmbflaty Statutory Workers' Compensation and Employers' Lmbfl~ty ($100,000/$500,000/$100,000) $500,000 Business Automobile Lmbflaty on any owned, non-owned or lured velucles Page 7 The CITY must be named as an adcht~onal insured on all pohc~es (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by the CITY THE CITY OF DENTON, TEXAS By JA~ ATTEST APPROVED AS ~O LI~d~L-)FORM NoCITYA~Y F IR By cRTH~~~ ATTEST' APPROVED AS TO LEGAL FORM By By Secretary Page To JorgeTrevmo From KarlaS~kes 382-7763 10/20/98 150916 Page2of2 North Texas State Fair Budget (Rewsed) f Y 98-99 A dvert~smg Amount Pnnlmg 15,000 Adve~smg 25,000 Postage 2,000 Telephone 3,500 45,500 A dm~trat~n Salaries 26,102 Operating Utilities 5,000 Office Supphes 1,000 Equ:p Ma~nt 500 Servtc~s Audit 1,500 Eqmpment Office Eqmp 2,000 36,102 Total 81,602 NORTH TEXAS STATE FAIR FINANCIAL REPORT Program Year 1999 15T 2ND 3RD 4TH QUARTER QUARTER QUARTER QUARTER YEAR TO BUDGET VS (Jan.Mar) (Apr. Jun) (Jul-$ep) (ocr. Dec) DATE ACTUAL $o $o $o $o $o $o $0 $0 $0 $0 $0 $81,602 0 0 0 0 0 0 $0 $0 $0 $0 $0 $81,602 $0 $0 $0 $0 $0 $15,000 0 0 0 0 0 25,000 0 0 0 0 0 2,000 0 0 0 0 0 3,500 $0 $0 $0 $0 $0 $46,500 $0 $0 $0 $0 $0 $26,102 0 0 0 0 0 5,000 0 0 0 0 0 1,000 0 0 0 0 0 500 0 0 0 0 0 1,500 0 0 0 0 0 2,000 $0 $0 $0 $0 $0 $36,102 $0 $0 $0 $0 $0 $81,602 $o $o $o $o $o $o $o $o $o $o $o $o $o $o $o $o $o $o o o o o o o o o o o o o $o $o $o $o $o ' Date Submitted Program Director NORTH TEXAS STATE FAIR FINANCIAL REPORT Program Year 1999 1 ST 2ND 3RD 4TH QUARTER QUARTER QUARTER QUARTER YEAR TO BUDGET V8 (Jan.Mar) (Apr-Jun) (Jul-Sap) (Oct. Dec) DATE ACTUAL $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $81,602 0 0 0 0 0 0 $0 $0 $0 $0 $0 $81 602 $0 $0 $0 $0 $0 $15,000 ~ 0 0 0 0 0 25,000 0 0 0 0 0 2 000 0 0 0 0 0 3~500 $0 $0 $0 $0 $0 $45,500 $0 $0 $0 $0 $0 $26,102 0 0 0 0 0 5,000 0 0 0 0 0 1,000 0 0 0 0 0 500 0 0 0 0 0 1,500 0 0 0 0 0 2~000 $0 $0 $0 $0 $0 $36,102 $0 $0 $0 $0 $0 $81,602 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $o $o $o $o $o $o 0 0 0 0 0 0 0 0 0 0 $o $o $o $o $o Date Submitted Program Director NORTH TEXAS STATE FAIR FINANCIAL REPORT Program Year 1999 t8T 2ND 3RD 4TH QUARTER QUARTER QUARTER QUARTER YEAR TO BUDGET VS t~PROVED BUDGET (Jan.Mar) (Apr.Jun) (Jul.$ep) (Oct. Dec) DATE ACTUAL ~rm~ng Cash $0 $0 $0 $0 $0 $0 {~et~j;~ncy Tax $~11,6[t2 $0 $0 $0 $0 $0 $81,602 Imt~a'es~ ~ 0 0 0 0 0 0 0 T~tal I~-.~oelpts $81 ,~ $0 $0 $0 $0 $0 $81,602 A~l~ng ~t~ $15 OeO $0 $0 $0 $0 $0 $15,000 ~ ~,000 0 0 0 0 0 25,000 ~ 2 000 0 0 0 0 0 2,000 3:~ 3,~0 0 0 0 0 0 3~500 T~ ~ng ~,~ $0 $0 $0 $0 $0 $45,500 8~l~s ~,102 $0 $0 $0 $0 $0 $26,102 O~ U~ 5,~ 0 0 0 0 0 5,000 C~ ~ 1 ,~ 0 0 0 0 0 1,000 ~ ~ ~ 0 0 0 0 0 500 ~ 1 ~ 0 0 0 0 0 1,500 ~ ~u~ 2,~ 0 0 0 0 0 2,000 T~ ~ ~,1~ $0 $0 $0 $0 $0 $36,102 T~ ~ $81 ,~ $0 $0 $0 $0 $0 $81,602 ~s~ $0 $0 $0 $0 $0 $0, ,,~1~, ~h $0 $0 $0 $0 $0 $0 ' R~CEt~NC~Ti~ Cash em Hand $0 $0 $0 $0 $0 $0 Less Otatstandt~g Chemks 0 0 0 0 0 0 ~ ~ 0 0 0 0 0 0 ~ ~ $0 $0 $0 $0 $0 $0 ' ,V~m {~) $0 $0 $0 $0 $0 Date Submlffed Program Director