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1991-134e updocs\gdaco ORDINANCE NO AN ORDINANCE APPROVING AN AMENDMENT TO AN AGREEMENT BETWEEN THE CITY OF DENTON AND GREATER DENTON ARTS COUNCIL, AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS, on October 15, 1990, the City of Denton (City) and Greater Denton Arts Council (GDAC) entered into an agreement providing for the payment of funds by the City to GDAC for pro- viding the community services described therein, and WHEREAS, the parties wish to revise Schedule "A" to such agree- ment, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the City Council hereby approves the amend- ments to the Agreement as attached hereto, between the City of Denton and Greater Denton Arts Council SECTION II That the City Secretary is hereby directed to attach a copy of said Amendment to Ordinance 90-151 and to note on said ordinance a statement that the Agreement has been amended SECTION II That this ordinance shall become effective im- mediately upon its passage and approval PASSED AND APPROVED this they day of , 1991 BOB CASTLEBERRY, MA ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPROVED A TO LEGAL FORM DEBRA A DRAYOVITCH, CITY ATTORNEY BY LUX&) 2"&2~ e \gdac amd MENDMENT OF AGREEMENT BETWEEN THE CITY OF DENTON AND GREATER DENTON ARTS COUNCIL Recitals On October 15, 1990, the City of Denton (City) and Greater Denton Arts Council (GDAC) entered into an agreement, a copy of which is attached, providing for the payment of funds by the City to GDAC for providing the community services described therein (Agree- ment) The parties wish to amend Schedule "A" for utility consump- tion attached to the Agreement to reflect revisions to Column III thereof AGREEMENT I The parties agree to the amendment of Schedule "A" of the attached Agreement, to read as follows I UTILITY SERVICE Electricity Water Wastewater II ANNUAL CONSUMPTION 180,000 KWH 100,000 gallons 80,000 gallons III MONTHLY USAGE 15,000 KWH 100 KW (demand) 8,333 gallons 6,667 gallons Natural Gas 4,062 CCF 339 CCF On or before the 5th day of each month, CITY shall pay GDAC a sum equal to the utility billing for the consumption and facility charges for the utility services enumerated in Column III The CITY shall pay all regular monthly charges from the CITY for removal of solid waste II Except for the amendment set forth in Article I hereof, the terms of the original Agreement of October 15, 1990, remain in full force and effect Signed o, 1991 /2401L #1.A A Al BOB CASTLEBERRY, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPRO ED AS LEGAL FORM DEBRA A DRAYOVITCH, CITY ATTORNEY BY GREATER DENTON ARTS COUNCIL (GDAC) PRESIDENT ATTEST BY° c~urc Yi!(i CC IG _ SECRETARY Page 2 LENENT BETWEEN THE CITY OF DENTON, TEXAS AND THE GREATER DENTON ARTS COUNCIL THIS AGREEMENT is made on this the day of October, 1990, 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") a A 2 1 1 A L a WHEREAS, the GDAC is a non-profit corporation dedicated to the promotion and provision of artistic performances of all kinds for the benefit of the citizens of Denton, and, WHEREAS, the GDAC has executed a contract for the purchase of real property, together with the improvements thereto, located at 200 West Hickory, Denton, Texas, (the "Theater"), for the purposes of restoring and refurbishing the Theater, through the use of private funds, and utilizing it to provide the citizens of Denton with artistic performances and presentations of many kinds including, but not limited to, music, theater, and dance, and, WHEREAS, the GDAC has agreed to allow the CITY to use the Theater for the purpose of holding public events, including public meetings, events held in connection with the Denton Main Street Project, and events sponsored by the CITY#S Parks and Recreation Department, and, WHEREAS, the City Council of the CITY finds that the GDACIS performance of the terms of this Agreement will benefit CITYIS citizens in a manner consistent with the type of benefits histori- cally provided to citizens of municipal governments, and, WHEREAS, the GDAC having agreed to refrain from requesting, during the term of this Agreement, any extension or renewal of its existing contract with the CITY for the payment of certain hotel tax revenues collected by the CITY,. or any other hotel tax revenues for the purpose of restoring and refurbishing the Old Steam Plant, NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, the CITY and the GDAC agree and contract as follows I. COVENANTS OF GDAC A. Use of Premises. GDAC agrees to use the premises for the purposes of conducting meetings and other events (including fund raisers) of its member organizations, and conducting artistic per- formances, including any rehearsals thereof, for the benefit of the citizens of Denton GDAC may also rent the Theater in accordance with the terms contained herein. PAGE 1 GDAC will not permit Theater to be used for any event or in any manner which will violate City ordinances, for any unlawful or commercial purpose, except in accordance with the terms of this Agreement GDAC shall adopt rules and regulations governing energy conservation in the Theater and rental of the Theater, which shall be approved by the CITY In the event GDAC should rent the facility to a non-member, non- public organization or individual, GDAC shall notify CITY of such rental in writing In such event, CITY shall receive a credit against its monthly payment obligations under Article III A Each such credit referred to in Article III A as "utility rental charge" shall be equal to one-thirtieth (1/30) of the amount of the CITY'S obligation for the succeeding month 8. City Use. GDAC agrees to permit the CITY, its agents, officers and employees to utilize the Theater, without charge, for the purpose of holding city-sponsored events, including city- sponsored public meetings of any and all kind, events held in connection with the Denton Main Street Project, and events sponsored by the City's Parks and Recreation Department CITY agrees to comply with the scheduling requirements applicable to GDACIS member organizations and recognizes that it will not have the right to preempt an event previously scheduled C. Additional consideration. 1 GDAC agrees it will not request an extension or renewal of its existing contract, authorized by Ordinance 90-034 of the City Council, or request additional payment of hotel tax revenues to GDAC for the purpose of renovating the Old Steam Plant 2 GDAC represents and warrants to CITY that it has not expended any monies received from CITY'S hotel tax revenues for the acquisition of the Theater, and agrees that no such revenues will be expended on the Theater during the term of this Agreement. 3 GDAC agrees to recognize and acknowledge the financial contributions of the CITY to GDAC in publicity literature prep',ared and distributed by GDAC, including, but not limited to, theater programs, press releases and pamphlets 4 GDAC agrees to pay when due all utility bills, taxes, licenses, permit fees, or any other fees rendered or levied against the Theater 5 GDAC agrees to work with CITY to design and implement programs which will further the public purposes of this Agree- ment PAGE 2 II TERM The term of this Agreement shall be for twenty-five (25) years, commencing October 15, 1990, and terminating at midnight on September 30, 2015, provided however that if CITY is unable to appropriate funds for subsequent fiscal years to continue the funding provided for in Article III hereof, CITY may terminate this Agreement at the end of the then current fiscal year and shall not be obligated to make further payments under this Agreement Each annual period of this Agreement shall commence on October 1 and continue through September 30 of the succeeding year III. COVENANTS OF CITY A. Utilities Beginning October 1, 1991, and continuing through the billing cycle for the period including September 30, 1993, CITY, in consideration of the services performed by GDAC, agrees to reimburse GDAC monthly a sum calculated upon utility services provided to the Theater by City of Denton Utilities and Lone Star Gas Company based upon a fixed annual allotment of electricity, water, solid waste volume and natural gas, as reflected on Schedule "A", attached hereto and incorporated by reference herein Should GDAC rent the facility, the CITY'S monthly payment following the rental date shall be credited in an amount equal to the utility rental charge as defined in Article I A Not later than May 31, 1993, GDAC shall meet with CITY'S representatives and mutually agree to a schedule of utility consumption to replace Schedule "A", commencing with the first billing cycle after September 30, 1993, for the remainder of the term of this Agreement The schedule shall be calculated based upon the Theater's utility consumption during the previous two years If the parties are unable to mutually agree to a new schedule of consumption, the decision of the CITY shall be final B. Other Payments. Commencing October 1, 1991, CITY shall reimburse GDAC for expenditures made to pay for repairs to the Theater, Such expenditures shall be reimbursed only if CITY has approved reimbursement prior to the performance of the repairs During any annual period of this Agreement, as set forth in Article II , the CITY shall not pay to GDAC more than $5,000 It is agreed that the CITY will not approve reimbursement for janitorial expenses or expenses incurred to remove asbestos or other hazardous substances from the Theater premises. Payments made under this section are for the sole purpose of reimbursing GDAC for expenses incurred in repairing or mending Theater fixtures The total sum of all amounts paid by CITY pursuant to Section III A through the billing cycles for the period including March 31, 1992 shall be applied as a credit against the CITY'S obliga- tions set forth in Article III B By way of example, if the CITY PAGE 3 were to pay $13,000 to GDAC for utility services through the billing period including March 31, 1992, the CITY'S obligations pursuant to Article III B would not commence until October, 1993 and the CITY would be obligated to pay not more than $2,000 during the following year C Energy Efficient Improvements CITY recognizes that GDAC may choose to invest a minimum of $75,000, the first $25,000 of which may be used for general repairs and improvements, for the purpose of constructing major structural or equipment improvements to the Theater which, in the opinion of the CITY (1) are energy efficient, or (2) will extend the life of the building for a number of years Should GDAC expend $75,000 for improvements to the Theater, the CITYIB obligation under Article III B shall be increased to provide for approval of payment for expenses to repair the building in an annual amount not more than $7,500 if 1 GDAC has submitted the plans for each proposed improve- ment included in the $75,000 sum to CITY, 2 CITY has determined that construction of each such im- provement would meet the requirements of this section, and 3 GDAC provides the CITY with proof of payment for con- struction of each such improvement on or before September 30, 1993 If any of the improvements constructed include goods donated or services performed by individuals or organizations which are engaged, in the normal course of business, in selling such goods or performing such services, GDAC may submit proof of the donation of such goods or services and an opinion as to their market value to CITY CITY shall then determine the market value of such goods or services and shall apply said amount as a credit against the $75,000 requirement IV. TERMINATION A. Default. Should GDAC breach or fail to comply with any provision of this Agreement, such breach shall constitute an Event of Default on the part of GDAC. If an Event of Default occurs, the CITY shall give GDAC thirty (30) days to remedy the breach If the breach continues after thirty (30) days, the CITY may terminate the Agreement immediately upon written notice and shall not be obligated to make any additional payment to GDAC However, if the breach cannot be cured within 30 days after notice, but GDAC has undertaken, in good faith, to carry out a plan to cure the breach, and provides CITY with proof of such efforts made in carrying out the plan, GDAC shall have additional time to complete said plan to PAGE 4 cure the breach in accordance with the plan, as approved by the CITY H unavailability of Funds. The payment of money by CITY under this Agreement is contingent upon the availability of funds appropriated to pay the sums pursuant to this Agreement In the event funds become unavailable due to non-appropriation, CITY may notify GDAC in writing and terminate the Agreement C. Other Events. This Agreement shall automatically terminate upon the occurrence of any of the following events (1) If the Theater is damaged or destroyed by fire or other casualty to such an extent that in the CITY'S opinion the continued operation and use of the Theater is not feasible, (2) The termination of the corporate existence of GDAC, (3) The insolvency of GDAC, the filing of a petition in bankruptcy, either voluntary or involuntary, or an assignment by GDAC for the benefit of creditors, or (4) The sale of the Theater D Termination by GDAC. GDAC may terminate this Agreement upon 30 days written notice to CITY V. REPORTS GDAC shall furnish to the CITY a report of the services performed by the GDAC under this Agreement within thirty (30) days after the end of each fiscal quarter of this Agreement Such reports shall summarize the activities of the GDAC in performance of the services specified in Article I and enumerate expenditures and receipts for the preceding quarter GDAC shall also notify CITY in the event any lien is filed against the Theater premises in the Denton County Real Property Records GDAC shall provide CITY and its Executive Director of Finance or his designee with full access at all reasonable times to the Theater and to the books and records of the GDAC which may relate to the Theater VI. INDEMNIFICATION A. Indemnification. GDAC 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, damages, loss, or liability of whatever kind or character, arising out of or in connection with the performance by the GDAC of 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 GDAC, its officers, employees, agents, contractors, licensees and invitees E. Insurance. GDAC shall obtain and maintain general public liability insurance in the amount of not less than $1,000,000 PAGE 5 Such policy or policies shall be issued by companies licensed to transact business in the State of Texas and shall name the CITY as an additional insured GDAC shall submit proof of such insurance satisfactory to CITY Any policy or policies must include 30 days notice by carrier to the CITY of its intent to cancel, materially change, or refuse to renew coverage provided CITY reserves the right to adjust or increase the liability insurance amounts required of GDAC, and GDAC agrees to meet any such insurance requirements as CITY may require, provided however, that any requirements shall be commensurate with insurance requirements at other public use theaters similar to the Theater, in size and in scope of activities, located in Texas GDAC agrees to comply with all adjusted insurance requirements that the CITY may require within sixty (60) days following the receipt of a notice in writing from CITY stating the adjusted requirements C. Benefit. This Agreement is entered into for the benefit of CITY and GDAC only and is not intended to benefit third parties VII- STATUS OF PARTIES It is understood and acknowledged by the parties that the relationship of GDAC to CITY is that of an independent contractor GDAC shall have no authority to employ any person or employee or agent for or on behalf of CITY for any purpose VIII. MISCELLANEOUS A Assignment. GDAC shall not assign this Agreement, provided however, that GDAC may, subject to CITY'S written approval, execute an agreement with one or more of its member agencies or representa- tives thereof to manage the Theater B. 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, or by hand- delivery, addressed to the respective parties as follows City City Manager Executive Director City of Denton Greater Denton Arts Council 215 E McKinney 207 South Bell Denton, Texas 76201 Denton, Texas 76201 C- Application 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 judicial determinations relative thereto D. Esalusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the PAGE 6 parties hereto concerning the subject matter contained herein There are no representations, agreements, or understandings, oral or written, express or implied, between or among the parties relating to the subject matter of this Agreement, which are not fully expressed herein The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms of any other document relating to this transaction This Agreement shall not be changed or amended except by instrument in writing executed by CITY and GDAC E. 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 terms of the section and paragraph so designated B Notice of Meetings. GDAC shall give CITYIB City manager advance written notice of the time and place of general meetings of the GDAC 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 the board CITY'S City Manager, or his designee or any City Councilmember may attend any board meeting at which any matter relating to the Theater is scheduled for discus- sion G. Nondiscrimination. GDAC agrees to comply fully with all applicable federal, state and local laws, and rules and regulations promulgated thereunder, regarding nondiscrimination Specifically, GDAC agrees that no person shall be denied or refused service or other full or equal use of the licensed facilities, nor denied employment opportunities by GDAC as a result of race, creed, color, religion, sex, national origin, age, or handicap unrelated to ability 8. Nonwaiver. The waiver by CITY of any breach of any provision contained in this Agreement shall not be deemed to be a waiver of such provision for any subsequent breach of the same or any other provision. I. Compliance with Laws. GDAC shall comply with all applicable federal, state and local laws, rules and regulations Executed this the 11- day of 1990 CITY OF DENTON PAGE 7 ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPR $D AS TO LEGAL FORM DEBRA A DRAYOVITCH, CITY ATTORNEY BY Aote,&.& /I J GREATER DENTON ARTS COUNCIL BY 1 f )LZ IL t. JO N WHEELER, PRESIDENT ATTEST BY KENT SCHROEDER, SECRETARY PAGE 8 SCHEDULE "All I II III Utility Service Annual Consumption Monthly Usage Electricity 180,000 KWH consumption 15,000 KWH 100 KWH Water & Sewer 100,000 gallons 8,333 gallons Natural Gas 750 cubic feet 62 5 cubic feet on or before the 5th day of each month, CITY shall pay GDAC a sum equal to the utility billing for the consumption of the utility services enumerated in Column III The CITY shall pay all regular monthly charges from the City of Denton for removal of solid waste