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