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1994-181E=~NPDOCS\ORD\SCIENCE.ORD AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND SCIENCE LAND OF DENTON; 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 Science Land of Denton in consideration of the valuable public services to be furnished by said organization to the city of Denton; 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 Science Land of Denton, and authorizes the Mayor to execute said Agreement. SECTION II. That the city Council authorizes the expenditure of funds in the amount of Seven Thousand Dollars ($7,000.00) 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. JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: DEBRA A. DRAYOVITCH, CITY ATTORNEY 6:\SC]ENCE AGREEMENT BETWEEN THE CITY OF DENTON ~D SCIENCE LAND OF DENTON 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 Science Land of Denton, a non- profit corporation incorporated under the laws of the State of Texas (the "Museum"): WHEREAS, TEX. TAX CODE §351.002 authorizes the city to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not ex- ceeding 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 its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by performing his- torical 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 at or in the immediate vicinity of con- vention center facilities, or located elsewhere in the municipality or its vicinity that would be frequented by tourists, convention delegates, or other visitors to the municipality; and WHEREAS, the Museum is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101 (c) authorizes the city to delegate by contract with the Museum 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 Museum agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT TO MUSEUM 1.1 Consideration. For and in consideration of the activities to be performed by the Museum under this Agreement, the City agrees to pay the Museum 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 Museum sometimes herein referred to as "the agreed payments". 1.2 Amount of Payments to Huseum. The city shall pay to the Museum Seven Thousand Dollars ($7,000.00) for the period October l, 1994 until March 31, 1995, in monthly increments of One Thousand One Hundred Sixty-six Dollars and Sixty-six Cents ($1,166.66). 1.3 Dates of Payments to Museum. City shall pay the Museum the agreed payments specified in 91.2 above monthly. Each such monthly payment shall be paid to the Museum on or before the 5th day of each month with the first payment due October 5, 1994. II. USE OF HOTEL TAX REVENUE BY MUSEUM 2.1 Use of Funds. For and in consideration of the payment by the City to the Museum of the agreed payments of hotel tax funds speci- fied above, the Museum agrees to use such hotel tax funds only for the purpose of performing 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 located in the city of Denton or its vicinity that would be frequented by tourists, convention delegates, or other visitors to the City of Denton, as authorized by TEX. TAX CODE §351.101 (a) (5). 2.2 Administrative costs. The hotel tax funds received from the city by the Museum 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 Museum of those activities specified in 92.1 above. 2.3 Speoifio Restrictions on Use of Funds. (a) That portion of total administrative costs of the Museum for which hotel tax funds may be used shall not exceed that portion of the Museum's administrative costs actually incurred in 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 pur- pose of which is not directly related to the promotion of tourism and the convention and hotel industry. III. RECORD KEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) On or before the effective date of this Agreement, the Museum shall prepare and submit to the City Manager of the city an annual budget for the next ensuing fiscal year of this Agreement PAGE 2 for the Museum. The city shall not pay to the Museum any hotel tax funds during any fiscal year of this Agreement unless such budget for such respective fiscal year has been approved in writing by the Denton city Council. (b) The Museum acknowledges that the approval of such budget by the Denton city Council creates a fiduciary duty in the Museum with respect to the hotel tax funds paid by the city to the Museum under this Agreement. The Museum 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 Museum shall maintain any hotel tax funds paid to the Museum by the city 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 Museum shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by the Museum 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 Coulncil or the city's Executive Director of Finance or his designee. 3.4 Quarterly Reports. The Museum shall furnish to the city a report of the services performed by the Museum 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 Museum in performance of the activities specified in ~2.1 and ~2.2 above and the receipt of the agreed payments and expenditure of the hotel tax funds received by the Museum from the city. 3.5 Notice of Meetings. The Museum shall give the City Manager of the city advance written notice of the time and place of general meetings of the Museum's Board of Directors. Such notice shall be given in the same manner and at the same time as notice is given of such meetings to members of such board. This provision shall not be deemed to require the Museum to admit the city Manager to any executive session of the Executive Committee of the Museum. IV. INDEMNIFICATION 4.1 Indemnification. Museum shall indemnify and hold harmless the City from any and all claims, suits, actions, liabilities and reasonable defense costs, for bodily injury to individuals and physical damage to tangible property or other injury to the extent caused by the negligence or willful misconduct of the Museum, its PAGE 3 officers, employees, agents, subcontractors, licensees and invitees, while Museum is engaged in the performance of services under this Agreement; provided, however, that if there is also fault on the part of the city, the foregoing indemnity shall be on a comparative fault basis. The provisions of this section are solely for the benefit of the parties hereto and not intended to grant any rights, contractual or otherwise, to any other person or entity. V. TERM AND TERMINATION 5.1 Term. The term of this Agreement shall commence October 1, 1994 and terminate at midnight on March 31, 1995. 5.2 Termination. (a) This Agreement may be terminated by either party by giving the other party thirty (30) 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 Museum; (ii) The insolvency of the Museum, the filing of a petition in bankrupt- cy, either voluntarily, or involun- tarily, or an assignment by the Museum for the benefit of creditors; or (iii) The continuation of a breach of any of the terms or conditions of this Agreement by either the City or the Museum for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party. VI. OENERAL PROVISIONS 6.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agree- ment by the Museum with another private entity, person, or organi- zation for the performance of those services described in 92.1 above. In the event that the Museum enters into any arrangement, contractual or otherwise, with such entity, person or organization, the Museum shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, PAGE 4 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. 6.2 Independent Contraotor. The Museum shall operate as an in- dependent contractor as to all services to be performed under this Agreement and not as an officer, agent servant, or employee of the city. The Museum shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the Museum shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The Museum shall not be considered a partner or joint venture with the city, nor shall the Museum be considered nor in any manner hold itself out as an agent or official representative of the City. 6.3 Assignment. The Museum shall not assign this Agreement with- out 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 mail, certified mail, return receipt requested, addressed to the respective parties as follows: City Museum City Manager President, Board of Trustees city of Denton Science Land of Denton 215 E. McKinney P.O. Box 1338 Denton, TX 76201 Denton, TX 76202 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 obliga- tion of the city and the Museum and their respective successors and assigns. 6.6 Applioation of Laws. Ail 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 Exolusive 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 understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this PAGE 5 agreement, which are not fully expressed herein. The tens and conditions of this ~reement shall prevail notwithstanding any variance in this agreement from the tens and conditions of any other document relating to this transaction or these transactions. 6.8 Dupli~&te Origin&is. This Agreement is executed in duplicate originals. 6.9 Headings. The headings and subheadings of the various sections 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 tens of the section and paragraph so designated. , EXECUTED this the~/' day o~1994. JENNIFER WALTERS, CITY SECRETARY DE~A A. D~YOVITCH, CITY ATTO~EY SCIENCE ~ND OF DENTON ATTEST: APPROVED AS TO LEGAL FO~: Secretary ' ~' ~J PAGE 6