1997-254NOTE Amended by Ordinance No 98-295
ORDINANCE NO qT-~--~
AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT
BETWEEN THE CITY OF DENTON AND THE TEJAS STORYTELLING ASSOCIATION
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 Tejas Storytelling Association for the payment and use of hotel tax
revenue, under the terms and conditions contained in the agreement, a copy of wMch ~s 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 ~d~/_~'2~f~
1997
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
AGREEMENT BETWEEN THE CITY OF DENTON AND
THE TEXAS STORYTELLING ASSOCIATION (97-98)
PROVIDING FOR THE PAYHENT AND UEE OF HOTEL TAX REVENUE
THIS AGREEMENT made between the City of Denton, Texas, a muni-
cipal corporation (the "CITY"), and the Te]as Storytelling
Association, a legal entity existing under the laws of the State of
Texas (the ,,ASSOCIATION"):
WHEREAS, TEX. TAX CODE § 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 hotel occupancy tax in the City
of Denton of seven percent (7%); and
WHEREAS, TEX. TAX CODE §351.101 (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 promotional programs to attract tourists and
convention delegates or registrants to the municipality or 1ts
vicinity; and
WHEREAS, the ASSOCIATION is well equipped to perform those
activities; and
WHEREAS, TEX. TAX CODE §351.101 (c) authorizes the CITY to
delegate by contract with the ASSOCIATION as an Independent entity
the management and supervision of programs and activities of the
type described herelnabove 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
ASSOCIATION agree and contract as follows;
I, HOTEL TAX REVENUE pAYMENT TO ASSOCIATION
1.1 Consideration. For and in consideration of the activities to
be performed by the ASSOCIATION under this Agreement, the CITY
agrees to pay to the ASSOCIATION a portion of the hotel tax revenue
collected by the CITY at the rates and in the manner specified
herein (such payments by the CITY to the ASSOCIATION sometimes
herein referred to as "the agreed payments" or "hotel tax funds")
~.2 amount of payments ~o &ssooia~ion.
(a) As used in thls agreement, the following terms shall have
the following speolfl¢ meanings:
(~) The ,,hotel tax revenue" shall mean the monies col-
lected and received by the CITY durlng any relevant perlod cf
t~me (1.e., fiscal year or fiscal quarter) as munlclpal hotel
occupancy tax at the rate of seven percent (7%) of the price
paid for a room ~n a hotel, pursuant to TEX. TAX CODE S351.002
and city Ordinance, together with and ~nclud~ng 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.
(~i) 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 per~od of time (l.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 ~ncurred in litigation against or auditing
of such taxpayers.
(b) The CITY shall pay to ASSOCIATION an amount of money
equal to three and sixty-nine one hundredths of a percent (3.69%)
of the base payment amount for the period of October 1, 1997
through September 30, 1998 or Twenty-F~ve Thousand Dollars
($25,000.00), whichever is less.
~.3 D&~es of Peymen~s to ~ssooietion.
(a) The term "quarterly payments" shall mean payments by the
CITY to the ASSOCIATION of those amounts speclfled in ~1.2 above as
determined by the hotel tax revenue collected by the CITY during
any one fiscal quarter during the term of thls Agreement.
(b) CITY shall pay the ASSOCIATION the agreed payments
specified in ~1.2 above by quarterly payments paylng three and
sixty-nine one hundredths of a percent (3.69%) 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 Twenty-Flve
PAGE 2
Thousand Dollars ($25,000) during the 1997-98 fiscal year. Each
such quarterly payment shall be paid to the ASSOCIATION 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 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 ASSOCIATION.
(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 ASBOCIATION
2.X USo of Funds. For and in consideration of the payment by the
CITY to the ASSOCIATION of the agreed payments of hotel tax funds
specified above, the ASSOCIATION 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 Administ~ative Costs. The hotel tax funds received from the
CITY by the ASSOCIATION may be spent for day-to-day operations,
supplies, salaries, office rental, travel expenses, and other
administrative costs that are lncurred directly in the performance
by the ASSOCIATION of those activities specified in 92.1 above and
are allowed by TEX. TAX CODE § 351.101(f)
2.3 SpOOifio Rostriotions on Use of Funds.
(a) That port~on of total administrative costs of the
ASSOCIATION for which hotel tax funds may be used shall not exceed
that portion of the ASSOCIATION'S administrative costs actually
incurred ~n conducting the activities specified in 92.1 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 dlrectly related to the promotion of tourism and the
convention and hotel lndustry or the performance of the person's
]ob in an efficient and professional manner.
PAGE 3
ZZZo RECORD KEEPING I~I'D REPORTING REQUIREMENTS
3.~ Budget.
(a) On or about September 1 and prior to the disbursement of
any funds for the 1997-98 fiscal year, the ASSOCIATION shall
prepare and submit to the city Manager of the CITY an annual budget
for such fiscal year for the ASSOCIATION and any other operation or
function of the ASSOCIATION in which the hotel tax funds shall be
used by the ASSOCIATION. This budget shall specifically identify
proposed expenditure of hotel tax funds by the ASSOCIATION. 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 ASSOCIATION 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
authorizlng the expenditure of funds in such Section I.
(b) The ASSOCIATION acknowledges that the approval of such
budget by the Denton city Council creates a fiduciary duty in the
ASSOCIATION with respect to the hotel tax funds paid by the CITY to
the ASSOCIATION under this Agreement. The ASSOCIATION shall expend
hotel tax funds only in the manner and for the purposes specified
in § 351.101(a) TEX. TAX CODE and in the budget as approved by the
CITY.
3.2 separate Aooounts. The ASSOCIATION shall maintain any hotel
tax funds paid to the ASSOCIATION by the CITY in a separate
account.
3.3 Finanaiel Reaor4s. The ASSOCIATION shall maintain complete
and accurate financial records of each expenditure of the hotel tax
funds made by the ASSOCIATION and, upon reasonably advance written
request of the Denton city Council or the C~ty's Assistant City
Manager of Flnance or h~s designee or other person, shall make such
financial records available for ~nspectlon and review by the Denton
City COuncil or the City's Asslstant C~ty Manager of Finance or his
designee or other person.
3.4 Quarterly Reports. W~thln thirty days after the end of every
quarter, the ASSOCIATION shall furnish to the CITY (1) a perfor-
mance report of the work performed under th~s Agreement, an 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. § 351 101(c) (Vernon 1994). The ASSOCIATION
shall promptly respond to any request from the City Manager of the
PAGE 4
CITY for additional Information relating to the activities
performed under this Agreement. _.
..... ~-- Of Meetin-s./T~~ION shall give the City
· advance written notice of the tlme~-~--u~.-
and place of general meetings of the.~3as S~oryte{ling As ......
Board of Directors, as well as any other mss=lng oz any consu~uu=n-
cy of the ASSOCIATION at which this Agreement or any matter the
sub]ect of this Agreement shall be considered. This provision
shall not be deemed to require the ASSOCIATION to give notice of
any executive session of the Executive Committee of the ASSOCIA-
TION.
IV. REIMBURSEMENT ~ND INDEMNIFICATION
4.1 Reimbursement of Assooi&tion for A~ministr&tive Costs. In the
event that this Agreement is terminated pursuant to Section 5.2(a),
the CITY agrees to reimburse the ASSOCIATION for any and all
expenses and costs undertaken by the ASSOCIATION in performance of
those activities specified in ~2.1 above or expenses or costs
incurred by the ASSOCIATION as described in ~2.2 above. The CITY
is obligated to reimburse the ASSOCIATION for expenses and costs as
described in ~2.2 above only for the period commencing upon the
date notice of termination ~s 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 ASSOCIATION
during the one hundred eighty day period preceding termination or
the agreed payments otherwise due and payable to the ASSOCIATION
for such period.
4.~ Reimbursement of Assooi&tion for contraotu&l Obligations. In
the event that this Agreement is terminated pursuant to Section
5.2(a), the CITY agrees to reimburse the ASSOCIATION for any and
all contractual obligations of the ASSOCIATION undertaken by the
ASSOCIATION in performance of those services specified in ~2.1
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 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 ASSOCI-
ATION or to assume the performance of any contractual obligations
of the ASSOCIATION for or under any contract entered into by the
ASSOCIATION as contemplated herein shall not exceed ONE THOUSAND,
TWO HUNDRED FIFTY DOLLARS ($1,250.00). 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 &ssooiation.
(a) with respect to expenses and costs incurred by the
ASSOCIATION for which the CITY is obligated to reimburse the
ASSOCIATION pursuant to 44.1 above, the CITY shall pay such
reimbursement amount due, if any, to the ASSOCIATION 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
ASSOCIATION for which the CITY is obligated to reimburse the
ASSOCIATION as provided in 44.2 above, the CITY shall reimburse the
ASSOCIATION 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 ¶4.2 above.
4.4 i~e~anifioation. The ASSOCIATION agrees to ~ndemnlfy, 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 ASSOCIATION or those
services contemplated by this Agreement, ~ncluding 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 ASSOCIATION, its officers, employees,
agents, subcontractors, licensees and lnv~tees.
4.5 I~suranos. The ASSOCIATION shall provide ~nsurance as
follows:
$500,000 Commercial General Liability
Statutory Workers' Compensation and Employers' Llab~llty
($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 m~dn~ght on September 30, 1998. This term
shall be a per~od 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.
PAGE 6
(b) This Agreement shall automatically terminate upon the
occurrence of any of the following events:
(i) The termination of the legal existence of the
ASSOCIATION;
(ii) The insolvency of the ASSOCIATION, the filing of a
petition 1n bankruptcy, e~ther voluntarily or involuntarily,
or an assignment by the ASSOCIATION for the benefit of
creditors;
(~ii) The continuation of a breach of any of the terms
or condltions of this Agreement by e~ther the CITY or the
ASSOCIATION for more than thirty (30) days after wrltten
notice of such breach is given to the breaching party by the
other party; or
(iv) The failure of the ASSOCIATION to submit a f~nan-
cial report which complies w~th the reportlng procedures
required here~n and generally accepted accounting principles
prior to the beginning of the next contract term.
VI. ~ENER~L PROVISIONS
6.1 Su~contr&ot for Performance of Services. Nothing ~n th~s
Agreement shall prohibit, nor be construed to prohibit, the agree-
ment by the ASSOCIATION with another private entity, person, or
organization for the performance of those services described ~n
¶2.1 above. In the event that the ASSOCIATION enters ~nto any
arrangement, contractual or otherwise, with such other entity,
person or organization, the ASSOCIATION 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 ASSOCIATION 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 ASSOCIATION shall have exclusive control of ~ts
operations and performance of services hereunder, and such persons,
entities, or organizations performing the same and the ASSOCIATION
shall be solely responsible for the acts and omissions of its
d~rectors, officers, employees, agents, and subcontractors. The
ASSOCIATION shall not be considered a partner or joint venturer
w~th the CITY, nor shall the ASSOCIATION be considered nor in any
PAGE 7
manner hold itself out as an agent or official representative of
the CITY.
$.3 Assignment. The ASSOCIATION shall not assign this Agreement
without first obtaining the written consent of the CITY.
6.4 Notiae. 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 mall, certified
mall, return receipt requested, or by hand-delivery, addressed to
the respective parties as follows:
CITY ~
city Manager Chairman/Director
city of Denton Te]as Storytelling Association
215 E. McKlnney Karen Morgan
Denton, TX 76201 595 Jernlgan Road
Copper Canyon, TX 75067-8596
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 ASSOCIATION and their respective successors and
assigns.
6.6 ApHliaati~n ~f 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 Ex~lusive 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-
ditlons 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 D~Hlioate Originals. Th~s Agreement is executed in duplicate
originals.
6.9 Headings. The headings and subheadings of the various sec-
t~ons and paragraphs of this Agreement are inserted merely for the
purpose of convenience and do not express or amply any limitation,
definition, or extension of the specific terms of the section and
paragraph so designated.
PAGE 8
THE CITY OF DENTON, TEXAS
By: ~
JAC~/~ILLER, MAYOR
ATTEST: APPROVED AS TO LEGAL FORM:
~N~IF~WALTERS, HERBERT L. PROUTY,
~TY SZCRETARY CITY ATTORNEY
~EJAS STORYTELLING ASSOCIATION
Chalkman/Dlrecto~_~
ATTEST: APPROVED AS TO LEGAL FORM:
By: By:
SeCretary
A \STORYT~L. K
PAGE 9
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 Cotmcfl of the City of Denton, Texas passed
Ordinanc? numbe~rs 9%243, 97-244, 97-245, 9,7,~247, 97-248, 97-249, 97-250, 97-251, 97-252, 97-
253 and t9%254, (the "Approval Ordinances ) approving and authorizing funding for certmn
contracts with a number of outside orgamzaUons 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 sevaces rendered dunng each quarter of the fiscal year in the promotion of tourism, and
WHEREAS, m 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 aforemenUoned Approval
Ordinances are hereby authorized by the City of Denton to be extended under therr existing terms
for a period 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 tlus 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 smd contracts for services
rendered during October, November and December 1998, shall be pad after payment of the fourth
quarter payment already defined m the contract
SECTION II That passage of tins orchnance constitutes a revocable offer of the City of
Denton, Texas, winch may be accepted by each of the other parties, either by wntten confirmatton,
or by performance of the duties set forth m the apphcable contracts dunng the extended term, after
delivery of a copy of tins ordinance to the other parties, in the manner established m paragraph 6 5
of each apphcable contract
SECTION III That tins ordinance shall become effective immediately upon its passage and
approval
Page 1 of 2
JAC~LL~R, MAYO
ATTEST,
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
Page 2 of 2