1997-244NOTE Amended by Ordinance No 98-295
AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT
BETWEEN THE CITY OF DENTON AND THE DENTON CHAMBER OF COMMERCE
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 ~s hereby authorized to execute an agreemem between the
City of Denton and the Denton Chamber of Commerce for the payment and use of hotel tax
revenue, under the terms and condxttons contmned ~n the agreement, a copy of which ~s attached
hereto and made a part hereof
SECTION II That thru ordinance shall become effective ~mmedtately upon ~ts passage
and approval
PASSED AND APPROVED thru the ~
1997
JACK(~I~LER, MAYOR
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
AGREEMENT BETWEEN THE cITY OF DENTON 2%ND
THE DENTON CHAMBER OF COMMERCE (97-98)
pROVIDING FOR THE pAYMENT AND USE OF HOTEL TAX HEVENUE
THIS AGREEMENT made between the City of Denton, Texas, a muni-
cipal corporation (the ,,City"), and the Denton Chamber of Commerce,
a non-profit corporation lncorporated under the laws of the State
of Texas (the ,,Chamber"):
· . 02 authorizes the cITY to levy
~ S. TEX. TAX CODE § ~51 0 .... , ~ f,,hotel tax") no~
· U~--EA ' _ .... ci~al hotel occupan~ --~ £ .... ~ b~ a hote~
e~ceeding seven percen=
occupant; and
WHEREAS, by ordinance, th? CITY has provided for the assess-
ment and collection of a municipal hotel occupancy tax in the City
of Denton of seven percent (7%); and
S TEX. TAX CODE ~351.101 (a)(2), (3) & (5) authorizes
WHER~A , ....... ue from ~ts municipal hotel occupancy tax to
the cITY ~o u~
promote tourism and the convention and hotel ~ndustry by advertis-
ing and conducting solicitations and promotional programs to
attract tourists and convention delegates or registrants to the
municipality or its vicinity; and
WHEREAS, the cHAMBER is well equipped to perform those
activities through its Denton Convention and Vls~tors Bureau; and
WHEREAS, TEX. TAX CODE §351.101 (c) authorizes the CITY to
delegate by contract with the cHAMBER as a private organization 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
CHAMBER agree and contract as follows;
I. HOTEL T~,XREVENUE PAYMENT TO CHAMBER
1.1 Consideration- For and ~n consideration of the activities to
be performed by the cHAMBER under this Agreement, the CITY agrees
to pay to the CHAMBER a portion of the hotel tax revenue collected
by the CITY at the rates and in the manner specified here~n (such
payments by the cITY to the cHAMBER sometimes herein referred to as
"the agreed payments" or ,,hotel tax funds").
1.2 ~unount of payments to Chamber.
(a) As used in this agreement, the following terms shall have
the following specific meanings:
(1) The "hotel tax revenue" shall mean the monies col-
lected and received by the CITY during any relevant period of
time (1.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 (~.e. f~scal year or
f~scal 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 CHAMBER an amount of money equal to
thirty-seven and seventy-one one hundredths of a percent (37.71%)
of the base payment amount for the period of October 1, 1997
through September 30, 1998 or Two Hundred Flfty-Flve Thousand, Slx
Hundred Seventy-Four Dollars ($255,674.00), whichever is less.
x.3 D&~sS of payments to Ohan~er
(a) The term "quarterly payments" shall mean payments by the
CITY to the CF~%MBER of those amounts specified in 41.2 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 CHAMBER the agreed payments specified
in 41.2 above by quarterly payments paying thirty-seven and
seventy-one one hundredths of a percent (37.71%) of the base pay-
ment 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 Two Hundred
Fifty-Five Thousand, Six Hundred Seventy-Four Dollars ($255,674.00)
during the 1997-98 fiscal year. Each such quarterly payment shall
be paid to the CHAMBER 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
PAGE 2
quarter, then CITY may withhold the quarterly payment(s) 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 CHAMBER.
(d) It is expressly understood that this contract in no way
obligates the General Fund or any other monies or credlts of the
CITY.
II. UBE OF HOTEL T~X REVENUE BY CHAMBER
2.1 Use of Funds. For and ~n consideration of the payment by the
CITY to the CHAMBER of the agreed payments of hotel tax funds
specified above, the CHAMBER agrees to use such hotel tax funds
only for the following purposes:
(a) the furnishing of facilities, personnel, and materials
for the registration of convention delegates or registrants;
(b) advertising and conducting solicitations and promotional
programs to attract tourists and convention delegates or regis-
trants to the municipality or its vicinity;
(c) historical restoration and preservation projects or
activities or advertising and conducting solicitations and promo-
tional programs to encourage tourists and convention delegates to
visit preserved h~stor~c sites or museums;
(i) at or in the immediate vicinity of convention center
facilities or visitor Information centers; or
(ii) located elsewhere in the municipality or its
vicinity that would be frequented by tourists and convention
delegates.
as authorized by TEX. TAX CODE § 351.101(a)(2), (3) & (5)
2.Z ~inistr&tive Costs. The hotel tax funds received from the
CITY by the CHAMBER may be spent for day-to-day operations, sup-
plies, salaries, office rental, travel expenses, and other admlnl-
strat~ve costs that are incurred directly in the performance by the
CHAMBER of those activities specified in ~2.1 above and are allowed
by TEX. TAX CODE § 351.101(f).
2.3 Bpeeifio Restriotions on Use of Funds.
(a) That portion of total administrative costs of the CHAMBER
for which hotel tax funds may be used shall not exceed that portion
PAGE 3
of the CHAMBER'S admlnlstratlve costs actually incurred in con-
ducting the act~vltles specified ~n ¶2.1 above.
(b) Hotel tax funds may not be spent for travel for a person
to attend an event or conduct an actlv~ty the primary purpose of
whlch is not directly related to the promotion of tourlsm and the
convention and hotel industry or the performance of the person's
]ob in an efficient and professional manner.
XII. RECORD KEEPXN~ ~%ND REPORTIN~ REQUIRF,~ENT~
3.~ Budget.
(a) On or about September 1 and prior to the d~sbursement of
any funds for the 1997-98 fiscal year, the CHAMBER shall prepare
and submit to the city Manager of the CITY an annual budget for
such fiscal year for the CHAMBER and any other operation or
functlon of the CHAMBER in which the hotel tax funds shall be used
by the CF~%MBER. Th~s budget shall specifically identify proposed
expenditure of hotel tax funds by the CHAMBER In other words, the
CITY should be able to audit specifically where the funds in the
separate account relating to hotel tax funds w~ll be expended. The
CITY shall not pay to the CHAMBER any hotel tax revenues as set
forth in Section I. of th~s contract durlng any flscal year of th~s
Agreement unless a budget for such respective fiscal year has been
approved ~n writing by the Denton city Council authorizing the
expenditure of funds in such Section I.
(b) The C~AMBER acknowledges that the approval of such budget
by the Denton City Council creates a flduc~ary duty in the CHAMBER
with respect to the hotel tax funds paid by the CITY to the CHAMBER
under this Agreement. The CHAMBER shall expend hotel tax funds
only ~n the manner and for the purposes speclfled in § 351.101(a)
(2), (3) & (5), TEX. TAX CODE and ~n the budget as approved by the
CITY.
3.Z ~ep&N&te Accounts. The CHAMBER shall maintain any hotel tax
funds paid to the CHAMBER by the CITY in a separate account.
$.3 Finenoi&l RsooNds. The CHAMBER shall maintaln complete and
accurate f~nanc~al records of each expenditure of the hotel tax
funds made by the CHAMBER and, upon reasonably advance written re-
quest of the Denton City Council or the Clty's Assistant City
Manager of Finance or his designee or other person, shall make such
financial records available for lnspectlon and review by the Denton
city Council or the Clty's Asslstant city Manager of F~nance or h~s
designee or other person.
$.4 Q~eNtsNI~ Reports. Within thirty days after the end of every
quarter, the CHAMBER shall furnish to the CITY (1) a performance
report of the work performed under this Agreement, in the form
PAGE 4
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 CHAMBER shall
promptly respond to any request from the City Manager of the CITY
for additional information relating to the activities performed
under this Agreement.
$.5 Not s. The CHAMBER shall give the City Manager of
the CITY ~ advance written notice of the time and place of
general meetings of the Denton Chamber of Commerce Board of Dir-
ectors as well as any other meeting of any constituency of the
CHAMBER at which this Agreement or any matter the subject of this
Agreement shall be considered. This provision shall not be deemed
to require the CHAMBER to give notice of any executive session of
the Executive Committee of the CHAMBER.
IV. REIMBURSEMENT AND INDF~NIFIC~TION
4.X Reimbursement of Chamber for Administrative Costs. In the
event that this Agreement is terminated pursuant to Section 5.2(a),
the CITY agrees to reimburse the CHAMBER for any and all expenses
and costs undertaken by the CHAMBER in performance of those
activities specified in ~2.1 above or expenses or costs incurred by
the CHAMBER as described in ~2.2 above. The CITY is obllgated to
reimburse the CHAMBER for expenses and costs as described in ~2.2
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 CHAMBER during the one
hundred eighty day period preceding termination or the agreed
payments otherwise due and payable to the CHAMBER for such period.
4.2 Roi~urso~ont of Chamber for Contreotual Obligations. Iht he
event that this Agreement is terminated pursuant to Section 5.2(a),
the CITY agrees to reImburse the CHAMBER for any and all contractu-
al obligations of the CHAMBER undertaken by the CHAMBER in perfor-
mance of those services specified in S2.1 above, conditioned upon
such contractual obligations having been incurred and entered into
in the good faith performance of those services contemplated in
¶2.1 above, and further conditioned upon such contractual obliga-
tions having a term not exceeding the full term of this Agreement.
Notwithstanding any provision hereof to the contrary, the obliga-
tion of the CITY to reimburse the CHAMBER or to assume the perfor-
mance of any contractual obligations of the CHAMBER for or under
any contract entered into by the CHAMBER as contemplated here~n
shall not exceed TEN THOUSAND DOLLARS ($10,000.00). Such monetary
limitation is cumulative of all contractual obligations and shall
not be construed as a monetary limitation on a per contract basis.
PAGE 5
4.3 Payment of Reimbursement to Chamber.
(a) With respect to expenses and costs Incurred by the
CHAMBER for which the CITY is obligated to reimburse the CHAMBER
pursuant to 44.1 above, the CITY shall pay such reimbursement
amount due, if any, to the CHAMBER 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
CHAMBER for which the CITY is obligated to reimburse the CHAMBER as
provided in 44.2 above, the CITY shall reimburse the CHAMBER for
such monetary obligations required in such contractual 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 44.2 above.
4.4 In~e~nifioation. The CHAMBER 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 CHAMBER 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 CHAMBER, its officers, employees, agents,
subcontractors, licensees and lnvitees.
4.S Insurance. The CHAMBER shall provide insurance as follows:
$500,000 Commercial General Liability
Statutory Workers' Compensation and Employers' Liability
($250,000/$500,000/$250,000)
$500,000 Business Automobile Liability
The CITY must be named as an additional insured (except Workers'
Compensation) and proof of coverage shall be submitted prior to any
payment by the CITY.
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.
PAGE 6
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:
(i) The termination of the corporate existence of the
CHAMBER;
(Il) The insolvency of the CHAMBER, the filing of a
petition in bankruptcy, either voluntarily or involuntarily,
or an assignment by the CHAMBER for the benefit of creditors;
(iii) The continuation of a breach of any of the terms
or conditions of this Agreement by either the CITY or the
CHAMBER for more than thirty (30) days after written notice of
such breach is given to the breaching party by the other
party; or
(iv) The failure of the CHAMBER 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. ~ENEI~AL PROVISIONS
6.1 Subcontract for Performance of Services. Nothing in this
Agreement shall prohibit, nor be construed to prohibit, the agree-
ment by the CHAMBER with another private entity, person, or organI-
zation for the performance of those services described In 42.1
above. In the event that the CHAMBER enters into any arrangement,
contractual or otherwise, with such other entity, person or organi-
zation, the CHAMBER shall cause such other entity, person, or orga-
nization to adhere to, conform to, and be subject to all provi-
sions, terms, and conditions of this Agreement and to TEX. TAX CODE
Chap. 351, including reporting requirements, separate funds main-
tenance, and limitations and prohibitions pertaining to expendIture
of the agreed payments and hotel tax funds.
6.2 Aaknowledgement of Denton Convention and Visitors Bureau. The
CITY acknowledges that the services contemplated in this Agreement
may be performed by the Denton Convention and Visitors Bureau, a
wholly-owned and managed entity within the CHAMBER. Any and all
rights, benefits, obligations, and duties under this Agreement,
including reporting requirements, separate funds maintenance, and
limitations and prohibitions pertaining to the expenditure of the
agreed, payments and hotel tax funds, shall inure to the benefit and
obligation of the Denton Convention and V~sltors Bureau. The
PAGE 7
Bureau shall not be construed to be a subcontractor or assignee
under 46.1 or 46.4 of this Agreement.
6.3 Independent Contraotor. The CHAMBER 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 CHAMBER shall have exclusive control of its
operations and performance of services hereunder, and such persons,
entities, or organizations performing the same and the CHAMBER
shall be solely responsible for the acts and omissions of ~ts
directors, officers, employees, agents, and subcontractors. The
CHAMBER shall not be considered a partner or joint venturer with
the CITY, nor shall the CHAMBER be considered nor in any manner
hold itself out as an agent or official representative of the CITY.
6.4 AsSign~ent. The CHAMBER shall not assign th~s Agreement
without first obtaining the written consent of the CITY.
6.5 Not~ae. Any notlce required to be given under th~s Agreement
or any statute, ordinance, or regulation, shall be effective when
given in writing and deposited in the United States mail, certified
mall, return receipt requested, or by hand-delivery, addressed to
the respective parties as follows:
CITY CHAMBER
If By Mall:
Clty Manager President
City of Denton Denton Chamber of Commerce
215 E. McKinney Drawer P
Denton, TX 76201-4299 Denton, TX 76202
If by hand-delivery:
President
Denton Chamber of Commerce
414 W. Parkway
Denton, TX 76201
6.6 I~urement. 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 obllgatlon of
the CITY and the CHAMBER and their respective successors and
assigns.
6.7 Applioetion 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 ]ud~clal determinations relative thereto.
PAGE 8
6.8 Exolusive Agreement. This Agreement contains the entire
understanding and constitutes the entire agreement between the
part~es 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-
dltlons of this Agreement shall prevail notwithstanding any
variance in this Agreement from the terms and condlt~ons of any
other document relating to this transaction or these transactions.
6.9 Duplio&te Orig~nals. This Agreement ~s executed in duplicate
originals.
6.10 He&4ings. The headings and subheadings of the various sec-
tlons 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 deslgnated~
THE CITY OF DENTON, TEXAS
By: j~
ATTEST: APPROVED AS TO LEGAL FORM
/~NIT~P~-WA~TERS, HERBERT L. PROUTY,
~ITY SECRETARY CITY ATTORNEY
DENTON CHAMBER OF COMMERCE
By: ~ .....
President /
PAGE 9
ATTEST: APPROVED AS TO LEGAL FORM:
By: By:
Secretary
A \CHAMBER.K
PAGE 10
AN ORDINANCE OF THE CITY OF DENTON, TEXAS EXTENDING ELEVEN
CONTRACTS BETWEEN THE CITY OF DENTON, TEXAS AND THE NOTED CURRENT
RECI~PIENTS 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
Ordmanoe numbers 97-243,~9%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
con~acts,with a number of outside orgamzatlons 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 servlees rendered during each quarter of the fiscal year in the promotion of tounsm, and
WHEREAS, m the future, the City Council wishes to award such momes on a quarterly
basis, m ,advance of performance, during each quarter of the calendar year, commencing with
Calendar Year 1999, and
WI-IEREAS, 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 dunng 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 anthonzed by the City of Denton to be extended under their existing terms
for a pen0d of three months, except that paragraphs 1 2(b) and 5 1 of each such contract are hereby
modified upon acceptance to the extent that they are inconsistent with ttus 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 addit~onal payment to the other parties named in smd contracts for services
rendered during October, November and December 1998, shall be pa~d aiter payment of the fourth
quarter payment already defined m the contract
SI~CTION II That passage of tbas ordinance constitutes a revocable offer of the City of
Denton, Texas, wbach may be accepted by each of the other parties, either by written confirmaUon,
or by performance of the duties set forth m the appheable contracts dunng the extended term, after
delivery of a copy of ttus orchnance to the other parties, m the manner established in paragraph 6 5
of each appheable contract
SECTION IIi That tbas ordinance shall become effective ammedlately upon its passage and
approval
Page 1 of 2
JAC~M'~LL~R, MAYOR
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
Page 2 of 2