Loading...
1994-053E:\~PDOCS\ORD\CAHPUS.THE O DZHANC . HO. AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE GREATER DENTON ARTS COUNCIL; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council has determined that it is in the best interest of the citizens of the City to provide public funds to the Greater Denton Arts Council, in consideration of the valuable public services to be furnished by said organization to the city of Denton in restoring the historic Campus Theatre; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. That the city Council hereby approves the Agreement attached hereto, between the City of Denton and the Greater Denton Arts Council, and authorizes the Mayor to execute said Agreement. SECTION II. That the city Council authorizes the expenditure of funds in the amount of One Hundred Seventeen Thousand Seven Hundred Eleven Dollars ($117,711.00) in accordance with the terms of the contract. SECTION III. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the~~ day of ~, 1994. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: DEBRA A. DRAYOVITCH, CITY ATTORNEY AGREEMENT BETWEEN THE CITY OF DENTON AND THE GREATER DENTON ARTS COUNCIL This Agreement made between the City of Denton, Texas, a Municipal corporation (the city) and the Greater Denton Arts Council, a non-profit corporation incorporated under the laws of the State of Texas (the GDAC). Whereas, TEX. TAX CODE §351.002 authorizes the city to levy by ordinance a municipal hotel occupancy tax (Hotel Tax) which may be used, pursuant to TEX. TAX CODE §351.101(a)(5), for historical restoration and preservation projects at or in the immediate vicinity of convention center facilities or located elsewhere in the municipality or its vicinity that would be frequented by tourists, convention, delegates, or other visitors to the munici- pality; and Whereas, the City entered into an agreement with GDAC (the Steam Plant Contract) effective April 1, 1990 for the payment of hotel tax revenues to be used for the restoration and renovation of the old city Steam Plant, and paid GDAC the sum of One Hundred Seventeen Thousand Dollars ($117,711.00) pursuant to such contract and said funds have not yet been expended; and Whereas, on the 9th day of December, 1993, GDAC requested that the city transfer these funds for the use of the renovation of the Campus Theatre, which is a historical site; and Whereas, the city finds it is appropriate to allocate hotel tax revenue funds to be used for the specific purpose of renovating the Campus Theatre, and that such renovation and restoration shall benefit the citizens of Denton; and Whereas, TEX. TAX CODE §351.101 (c) authorizes the city to delegate by contract with the GDAC as a private organization the management and supervision of programs and activities of the type described above funded with revenue from the hotel tax; NOW, THEREFORE, in consideration of the performance of the covenants contained herein, city and GDAC agree as follows: I. HOTEL TAX REVENUE PAYMENT TO GDAC 1.1 Consideration. For and in consideration of the GDAC raising the necessary private funds and undertaking the renovation, restoration, and preservation of the "Campus Theatre", the City agrees to authorize GDAC to apply the sum of one hundred seventeen thousand seven hundred eleven dollars ($117,711.00). GDAC is currently in possession of these funds which it has received from the city pursuant to the Steam Plant Contract, toward the restora- tion and preservation of the Campus Theatre. 1.2 This Agreement shall not affect the agreement of the 2nd day of October, 1990 between the parties (the Utility Agreement), except that to the extent payment is authorized under this Agreement, it shall override Section I.C.2. of the Utility Agreement. II. USE OF HOTEL TAX REVENUE BY GDAC 2.1 Use of Funds. For and in consideration of the payment by the City to the GDAC of the agreed payments, GDAC covenants and rep- resents that it will utilize such funds solely for the purposes of improving, repairing, restoring and preserving the Campus Theatre property, all purposes authorized by TEX. TAX CODE §351.101(a) (5). Such expenditures may include architectural and engineering expenses incurred in the restoration of the Campus Theatre. 2.2 Specific Restrictions on Use of Funds. The hotel tax funds and any interest accruing therefrom received from the City by the GDAC may not be used for administrative costs or expenses, including day-to-day operations, supplies, salaries, office rental, travel expenses, or other administrative costs of the GDAC. III. RECORD KEEPING AND REPORTING REQUIREMENTS 3.1 Budget. The GDAC shall present a budget to the City which shall set forth the planned expenditures of the hotel tax funds. The City Council must approve the budget before GDAC may expend any of the funds. The approval of such budget by the Denton City Council creates a fiduciary duty in the GDAC with respect to the hotel tax funds paid by the city to the GDAC under this Agreement. The GDAC shall expend hotel tax funds only in the manner and for the purposes specified in the budget as approved by the City. 3.2 Separate Accounts. The GDAC shall maintain the hotel tax funds paid to the GDAC by the city, pursuant to this Agreement, in a separate account or accounts established for such purpose and may not commingle such hotel tax funds with any other money or maintain such hotel tax funds in any other account. 3.3 Financial Records. The GDAC shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by the GDAC and, upon request of the Denton City 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 city's Executive Director of Finance or his designee. GDAC agrees to continue to make such records available to city for a period of three years after the termination of this Agreement. 3.4 Quarterly Reports. The GDAC shall furnish to the City a report of the services performed and expenditures made by the GDAC under this Agreement within thirty (30) days after the end of each fiscal quarter of this Agreement. Such report shall summarize the activities of the GDAC in performance of the services specified in 2.1 and 2.2 above and the expenditure of the hotel tax funds received by the GDAC from the City. PAGE 2 IV. INDEI~IFICATION ~ND INSUI~NCE 4.1 Indemnification. The GDAC agrees to indemnify, hold harmless, and defend the City, its officers, agents, and employees form and against any and all claims or suits for injuries, damage, loss, or liability of whatever kind or character, arising out of or in con- nection with the performance by the GDAC of those services contem- plated 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 or omissions of GDAC, its officers, employees, agents, sub-contractors, licensees and invitees. In case of our action filed against City as a result of such action or omission, GDAC agrees to hire counsel acceptable to City to defend City in such aotion or proceeding. City shall not unreasonably withhold acceptance of such counsel. 4.2 Insurance. That GDAC require all independent contractors have and maintain general liability insurance or owners' and contrac- tors' protective liability insurance. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by the GDAC with another private entity, person, or organization for the performance of those services described in 2.1 above. In the event that the GDAC enters into any arrangement, contractual or otherwise, with such entity, person, or organiza- tion, the GDAC shall cause such other entity, person, or organiza- tion to adhere to, conform to, and be subject to all provisions terms, and conditions of this Agreement and 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. 5.2 Independent Contractor. The GDAC 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 GDAC shall have exclusive control of its opera- tions and performance of services hereunder, and such persons, entities, or organizations performing the same and the GDAC shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The GDAC shall not be considered a partner or joint venturer with the City, nor shall the GDAC be considered not in any manner hold itself out as an agent or official representative of the city. 5.3 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, addressed to the respective parties as follows: PAGE 3 city~ Greater Denton Arts Council: city Manager Executive Director City of Denton Greater Denton Arts Council 215 E. McKinney 207 S. Bell Denton, TX 76201 Denton, TX 76201 VI. TERMINATION 6.1 Termination. This Agreement shall commence on the~~(~ day of March, 1994 and continue until completion of the renovation of the Campus Theatre, or midnight on February 28, 2000, whichever occurs first. In the event GDAC has not expended all of the hotel tax funds by the termination date, it shall return the funds, together with interest earned thereon, to the city, unless the City shall extend the term of this Agreement. Upon written request of GDAC, the City may extend this Agreement for two (2) additional terms of one year each. 6.2 Termination for Cause. In the event either shall breach or fail to comply with any provision of this Agreement and shall fail to remedy such breach within 30 days after written notice of such breach is given to the breaching party by the other party, this Agreement may be terminated. EXECUTED this ~ day of ~ , 1994. THE CITY OF DENTON, TEXAS Bob Cast ATTEST: Jennifer Walters, City Secretary APPROVED AS TO LEGAL FORM: Debra A. Drayovitch, City Attorney PAGE 4 LESSEE Veronica Beasle_y.6~resident GDAC Board of Directors ATTEST: By: Carol Alexander, Secretary E: \WPDOCS\K\CAHPUS · L PAGE 5