Loading...
1996-202T \WPDOCS\ORD\HISTORIC A ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTONAND THE DENTON HISTORIC LANDMARK COMMISSION 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 Denton Historic Landmark Commission for the payment and use of hotel tax revenue, under the terms and condltmons contained mn the agreement, a copy of which is attached hereto and made a part hereof ~ That this ordinance shall become effective ~mmedlately upon 1ts passage and approval PASSED AND APPROVED thms thel~ day of~, 1996 ATTEST JENNIFER WALTERS, CITY SECRETARY APPRO%D A~O LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY AGREEMENT BETWEEN THE CITY OF DENTON ~ND THE DENTON HISTORIC I~,NDMARK COMMISSION (96-97) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a muni- cipal corporation (the "CITY"), and the Denton Hlstoric Landmark Commission, a legal entity existing under the laws of the State of Texas (the "COMMISSION"): 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 86-67, the CITY has provided for the assessment 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)(5) authorizes the CITY to use revenue from 1ts municipal hotel occupancy tax to promote tourism and the convention and hotel industry by historical restoration and preservation projects or activities or advertising and conducting solicitations and promotional programs to encourage tourists and convention delegates to visit preserved historic sites or museums; and WHEREAS, the COMMISSION is well equipped to perform those actlvlties; and W~EREAS, TEX. TAX CODE §351.101 (c) authorizes the CITY to delegate by contract wlth the COMMISSION as an independent entlty 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 COMMISSION agree and contract as follows; I. HOTEL T&X REVENUE P~YMENT TO COMMISSION ~.~ Consideration. For and in consideration of the activities to be performed by the COMMISSION under this Agreement, the CITY agrees to pay to the COMMISSION a port~on 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 COMMISSION sometimes herein referred to as "the agreed payments" or "hotel tax funds"). 1.2 ~ount of Payments to Commission. (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 tame (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 86-87, 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 One Thousand Dollars ($1,000) (b) The CITY shall pay to COMMISSION an amount of money equal to the base payment amount for the period of October 1, 1996, through September 30, 1997. ~.3 Da~ee of Payments to Commission. (a) The term "quarterly payments" shall mean payments by the CITY to the COMMISSION of four (4) payments totalling the amount specified in 41.2 (b) CITY shall pay the COMMISSION quarterly payments of Two Hundred Fifty Dollars ($250). Each such quarterly payment shall be paid to the COMMISSION 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 financlal and performance reports are not received within thirty (30) days of the end of the applicable quarter, then CITY may w~thhold 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 KS solely the responsibility of the COMMISSION (d) It Ks expressly understood that this contract in no way obligates the General Fund or any other mon~es or credits of the CITY. PAGE 2 II, USE OF HOTEL TAX REVENUE BY CON~ISSION Z.1 Use of Funds. For and in consideration of the payment by the CITY to the COMMISSION of the agreed payments of hotel tax funds specified above, the COMMISSION 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 § 351.101(a) (3). Z.Z A~inist~&tive Costs. The hotel tax funds received from the CITY by the COMMISSION 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 COMMISSION of those activities specified in ~2 1 above and are allowed by TEX. TAX CODE ~ 351.101(f). 2.3 Speoi£io Restriotions on Use of Funds. (a) That portion of total administrative costs of the COMMISSION for which hotel tax funds may be used shall not exceed that portion of the COMMISSION'S administrative costs actually incurred in conducting the activities specified in ~2.1 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 ]ob in an efficient and professional manner III. RECORD KEEPING AND REPORTING REQUIREMENTS 3.1 Budqet. (a) On or about September 1 and prior to the disbursement of any funds for the 1996-97 fiscal year, the COMMISSION shall prepare and submit to the City Manager of the CITY an annual budget for such fiscal year for the COMMISSION and any other operation or function of the COMMISSION in which the hotel tax funds shall be used by the COMMISSION. This budget shall specifically identify proposed expenditure of hotel tax funds by the COMMISSION. 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 COMMISSION 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 PAGE 3 (b) The COMMISSION acknowledges that the approval of such budget by the Denton City Council creates a fiduciary duty in the COMMISSION with respect to the hotel tax funds paid by the CITY to the COMMISSION under this Agreement. The COMMISSION 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 Bep&rate ~ooounts. The COMMISSION shall maintain any hotel tax funds paid to the COMMISSION by the CITY in a separate account. 3.3 Finenoi&l Reaor4s. The COMMISSION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by the COMMISSION and, upon reasonably advance written request of the Denton Clty Council or the City's Executive Director of Finance or his designee, shall make such financial records available for inspection and review by the Denton City Council or the Clty's Executive Director of Finance or his designee. 3.4 Qu&rterly Reports. Within thirty days after the end of every quarter, the COMMISSION 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 l~st of the expenditures made with regard to hotel tax funds pursuant to the TEX. TAX CODE ANN. S 351.101(c) (Vernon 1994). The COMMISSION shall promptly respond to any request from the City Manager of the CITY for additional Information relating to the activities performed under this Agreement. 3.5 Notiae of Meetings. The COMMISSION shall give the City Manager of the CITY reasonable advance written notice of the time and place of general meetings of the Denton Historic Landmark Commission Board of Directors, as well as any other meeting of any constituen- cy of the COMMISSION at which this Agreement or any matter the subject of this Agreement shall be considered. Thls provision shall not be deemed to require the COMMISSION to g~ve notice of any executive session of the Executive Committee of the COMMISSION. IV. REIMBURSEMENT AND INDEMNIFICATION 4.1 Reimbursement of Commission for Administrative costs. In the event that this Agreement is terminated pursuant to Section 5.2(a), the CITY agrees to reimburse the COMMISSION for any and all expenses and costs undertaken by the COMMISSION in performance of those activities specified in ~2.1 above or expenses or costs incurred by the COMMISSION as described in ~2 2 above. The CITY is obligated to reimburse the COMMISSION for expenses and costs as described in 42.2 above only for the period commencing upon the date notice of termination is given and ending upon the date of PAGE 4 termination. Further, this obligation shall be limited to the lesser of the actual expenses and costs incurred by the COMMISSION during the one hundred eighty day period preceding termination or the agreed payments otherwise due and payable to the COMMISSION for such period. 4.2 Reimbursement of commission for Contreotual Obligations. In the event that this Agreement is terminated pursuant to Section 5.2(a), the CITY agrees to reimburse the COMMISSION for any and all contractual obligations of the COMMISSION undertaken by the COMMISSION in performance of those services specified in 42.1 above, conditioned upon such contractual obligations having been Incurred and entered into in the good faith performance of those services contemplated in 42.1 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 COMMIS- SION or to assume the performance of any contractual obligations of the COMMISSION for or under any contract entered into by the COMMISSION 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 PaVement of Reimbursement to Commission. (a) With respect to expenses and costs incurred by the COMMISSION for which the CITY is obligated to reimburse the COMMISSION pursuant to 44.1 above, the CITY shall pay such reimbu=sement amount due, if any, to the COMMISSION on or before the forty-fifth (4§th) day after the date of termination of this Agreement. (b) With respect to contractual obligations undertaken by the COMMISSION for which the CITY is obligated to reimburse the COMMISSION as provided in 44.2 above, the CITY shall reimburse the COMMISSION 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 44.2 above 4.4 In~emnifioation. The COMMISSION 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 COMMISSION 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 PAGE 5 or intentional acts of COMMISSION, its officers, employees, agents, subcontractors, licensees and invltees V. TERM AND TERMINATION 5.1 Term. The term of this Agreement shall commence on October 1, 1996 and terminate at midnight on September 30, 1997. 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 COMMISSION; (ii) The insolvency of the COMMISSION, the filing of a petition in bankruptcy, either voluntarily or ~nvoluntarlly, or and assignment by the COMMISSION 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 COMMISSION 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 COMMISSION to submit a flnanclal 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 Perform&hoe of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agree- ment by the COMMISSION with another private entity, person, or organization for the performance of those services described in 42.1 above. In the event that the COMMISSION enters Into any arrangement, contractual or otherwise, w~th such other entity, person or organization, the COMMISSION 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 PAGE 6 pertaining to expenditure of the agreed payments and hotel tax funds. 6.2 Independent Contraotor. The COMMISSION 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 COMMISSION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the COMMISSION shall be solely responsible for the acts and omissions of 1ts directors, officers, employees, agents, and subcontractors. The COMMISSION shall not be considered a partner or joint venturer with the CITY, nor shall the COMMISSION be considered nor in any manner hold itself out as an agent or official representative of the CITY. 6.3 Aseigl~aent. The COMMISSION shall not assign this Agreement without first obtaining the written consent of the CITY. 6.4 Notioe. 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 COMMISSION city Manager ChaIrman/Director city of Denton Denton Historic Landmark Commission 215 E McKinney 100 West Oak, Suite 204 Denton, TX 76201 Denton, TX 76201 6.5 Inurement. Th~s 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 COMMISSION and their respective successors and assigns. 6.6 Applioation 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 3udiclal determinations relative thereto. 6.7 Ex~lusive Agreement. This Agreement contalns 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- dltlons of this Agreement shall prevail notwithstanding any PAGE 7 variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions 6.8 DUplio&te O~igin&ls. This Agreement is executed in duplicate originals. 6.9 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 designated. EXECUTED th~s \~3~ day of .~~~3 , 1996 THE CITY OF DENTON, TEXAS By: JACK~ ATTEST:' APPROVED AS TO LEGAL FORM:  NNIFE~ WALTERS, HERBERT L. PROUTY, TY SECRETARY CITY ATTORNEY DEi~S~C~. 7DMARK COMMISSION ~irm~irector ATTEST: APPROVED AS TO LEGAL FORM: By: By: Seoretary T \WPDOCS\K\COI4H]SS]ON K PAGE 8