2010-165SALegahOur Documents\Ordinances\10\serv agr-Kiwanis Fireworks.doc
ORDINANCE NO. 2010-165
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AND RATIFYING AN
AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS, AND THE KIWANIS FOR THE
PURPOSE OF HOSTING THE FOURTH OF JULY FIREWORKS SHOW; PROVIDING FOR THE
EXPENDITURE OF FUNDS; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City Council of the City of Denton hereby finds that the Program and the
agreement between the City and the Kiwanis for the purpose of hosting the Fourth of July Fireworks
Show, attached hereto and made a part hereof by reference (the "Agreement"), serve a municipal and
public purpose and is in the public interest; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated by
reference into the body of this Ordinance as if fully set forth herein.
SECTION 2. The Agreement is hereby approved and ratified and the City Manager's, or his
designee's, execution of the Agreement is hereby ratified. All expenditures authorized by the Agreement
are also ratified and approved.
SECTION 3. This Ordinance shall become effective immediately upon its passage and approval.
PASSED AND APPROVED this the V 4 day of , 2010.
A. BURROUGHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
I
BY: l V c~
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SERVICE AGREEMENT
BETWEEN THE CITY OF DENTON, TEXAS,
AND THE DENTON KIWANIS CLUB
This Agreement is hereby entered into by and between the City of Denton, Texas, a Home Rule
Municipal Corporation, hereinafter referred to as "City", and the Denton Kiwanis Club, a Texas Non-
Profit Corporation, hereinafter referred to as "Club";
WHEREAS, City has determined that the proposal for services merits assistance and can
provide needed services to citizens of City and has provided funds in its budget for the purpose of
paying for contractual services; and
WHEREAS, this Agreement serves a valid municipal and public purpose and is in the public
interest;
NOW, THEREFORE, the parties hereto mutually agree as follows:
I. SCOPE OF SERVICES
Club shall in a satisfactory and proper manner perform the following tasks, for which the
monies provided by City may be used:
The funds being provided shall be used by the Club to host the Fourth of July Fireworks
Show.
II. OBLIGATIONS OF CLUB
In consideration of the receipt of funds from City, Club agrees to the following terms and
conditions:
A. One Thousand, Four Hundred Dollars and no/100 ($1,400.00) shall be paid to Club
by City to be utilized for the purposes set forth in Article I.
B. Club will maintain adequate records to establish that the City funds are used for the
purposes authorized by this Agreement.
C. Club will permit authorized officials of City to review its books at any time.
D. Upon request, Club will provide to City its By Laws and any of its rules and
regulations that may be relevant to this Agreement.
E. Club will not enter into any contracts that would encumber City funds for a period
that would extend beyond the term of this Agreement.
F. Club will appoint a representative who will be available to meet with City officials
when requested.
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G. Club will submit to City copies of year-end audited financial statements.
III. TIME OF PERFORMANCE
The services funded by City shall be undertaken and completed by Club within the following
time frame:
The term of this Agreement shall commence on the effective date and terminate September 30,
2010, unless the contract is sooner terminated under Section VII "Suspension or Termination".
IV. PAYMENTS
A. PAYMENTS TO CLUB. City shall pay to Club the sum specified in Article II after the
effective date of this Agreement.
B. EXCESS PAYMENT. Club shall refund to City within ten (10) working days of City's
request, any sum of money which has been paid by City and which City at any time thereafter
determines:
1) has resulted in overpayment to Club; or
2) has not been spent strictly in accordance with the terms of this Agreement; or
3) is not supported by adequate documentation to fully justify the expenditure.
V. EVALUATION
Club agrees to participate in an implementation and maintenance system whereby the
services can be continuously monitored. Club agrees to make available its financial records for
review by City at City's discretion. In addition, Club agrees to provide City the following data and
reports, or copies thereof.
A. All external or internal audits. Club shall submit a copy of the annual independent
audit to City within ten (10) days of receipt.
B. All external or internal evaluation reports.
C. An explanation of any major changes in program services.
D. To comply with this section, Club agrees to maintain records that will provide
accurate, current, separate, and complete disclosure of the status of funds received and the services
performed under this Agreement. Club's record system shall contain sufficient documentation to
provide in detail full support and justification for each expenditure. Club agrees to retain all books,
records, documents, reports, and written accounting procedures pertaining to the services provided
and expenditure of funds under this Agreement for five years.
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E. Nothing in the above subsections shall be construed to relieve Club of responsibility
for retaining accurate and current records that clearly reflect the level and benefit of services
provided under this Agreement.
VI. DIRECTORS' MEETINGS
During the term of this Agreement, Club shall deliver to City copies of all notices of
meetings of its Board of Directors, setting forth the time and place thereof wherein this program is a
part of the subj ect matter of the meeting. Such notice shall be delivered to City in a timely manner to
give adequate notice, and shall include an agenda and a brief description of the matters to be
discussed. Club understands and agrees that City's representatives shall be afforded access to all
meetings of its Board of Directors.
Minutes of all meetings of Club's governing body shall be available to City within ten (10)
working days of approval.
VII. TERMINATION
The City may terminate this Agreement for cause if Club violates any covenants, agreements,
or guarantees of this Agreement, the Club's insolvency or filing of bankruptcy, dissolution, or
receivership, or the Club's violation of any law or regulation to which it is bound under the terms of
this Agreement. The City may terminate this Agreement for other reasons not specifically
enumerated in this paragraph.
VIII. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS
A. Club shall comply with all applicable equal employment opportunity and affirmative
action laws or regulations.
B. Club will furnish all information and reports requested by City, and will permit access
to its books, records, and accounts for purposes of investigation to ascertain compliance with local,
State and Federal rules and regulations.
C. In the event of Club's non-compliance with the non-discrimination requirements, the
Agreement may be canceled, terminated, or suspended in whole or in part, and Club may be barred
from further contracts with City.
IX. WARRANTIES
Club represents and warrants that:
A. All information, reports and data heretofore or hereafter requested by City and
furnished to City, are complete and accurate as of the date shown on the information, data, or report,
and, since that date, have not undergone any significant change without written notice to City.
B. Any supporting financial statements heretofore requested by City and furnished to
City, are complete, accurate and fairly reflect the financial conditions of Club on the date shown on
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said report, and the results of the operation for the period covered by the report, and that since said
data, there has been no material change, adverse or otherwise, in the financial condition of Club.
C. No litigation or legal proceedings are presently pending or threatened against Club.
D. None of the provisions herein contravenes or is in conflict with the authority under
which Club is doing business or with the provisions of any existing indenture or agreement of Club.
E. Club has the power to enter into this Agreement and accept payments hereunder, and
has taken all necessary action to authorize such acceptance under the terms and conditions of this
Agreement.
F. None of the assets of Club are subject to any lien or encumbrance of any character,
except for current taxes not delinquent, except as shown in the financial statements fiarnished by
Club to City.
Each of these representations and warranties shall be continuing and shall be deemed to have
been repeated by the submission of each request for payment.
X. CHANGES AND AMENDMENTS
A. Any alterations, additions, or deletions to the terms of this Agreement shall be by
written amendment executed by both parties, except when the terms of this Agreement expressly
provide that another method shall be used.
B. It is understood and agreed by the parties hereto that changes in the State, Federal or
local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such
modifications are to be automatically incorporated into this Agreement without written amendment
hereto, and shall become a part of the Agreement on the effective date specified by the law or
regulation.
C. Club shall notify City of any changes in personnel or governing board composition.
XI. INDEMNIFICATION
To the extent authorized by law, the Club 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 Club 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 or intentional acts of Club, its officers, employees, agents, subcontractors,
licensees and invitees.
XII. CONFLICT OF INTEREST
A. Club covenants that neither it nor any member of its governing body presently has any
interest, direct or indirect, which would conflict in any manner or degree with the performance of
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services required to be performed under this Agreement. Club further covenants that in the
performance of this Agreement, no person having such interest shall be employed or appointed as a
member of its governing body.
B. Club further covenants that no member of its governing body or its staff,
subcontractors or employees shall possess any interest in or use his/her position for a purpose that is
or gives the appearance of being motivated by desire for private gain for himself/herself, or others;
particularly those with which he/she has family, business, or other ties.
C. No officer, member, or employee of City and no member of its governing body who
exercises any function or responsibilities in the review or approval of the undertaking or carrying out
of this Agreement shall participate in any decision relating to the Agreement which affects his
personal interest or the interest in any corporation, partnership, or association in which he has direct
or indirect interest.
XIII. NOTICE
Any notice or other written instrument required or permitted to be delivered under the terms
of this Agreement shall be deemed to have been delivered, whether actually received or not, when
deposited in the United States mail, postage prepaid, registered or certified, return receipt requested,
or via hand-delivery or facsimile, addressed to Club or City, as the case may be, at the following
addresses:
CITY
City of Denton, Texas
Attn: City Manager
215 E. McKinney
Denton, TX 76201
Fax No. 940.349.8591
CLUB
Virginia Hammerle
President of Denton Kiwanis Club
225 W. Hickory No. A
Denton, TX 76201
Fax No. 940.3 87,6323
Either party may change its mailing address by sending notice of change of address to the
other at the above address by certified mail, return receipt requested.
XIV. MISCELLANEOUS
A. Club shall not transfer, pledge or otherwise assign this Agreement or any interest
therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial
institution without the prior written approval of City.
B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the
remaining provisions shall remain in full force and effect and continue to conform to the original
intent of both parties hereto.
C. In no event shall any payment to Club hereunder, or any other act or failure of City to
insist in any one or more instances upon the terms and conditions of this Agreement constitute or be
construed in any way to be a waiver by City of any breach of covenant or default which may then or
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subsequently be committed by Club. Neither shall such payment, act, or omission in any manner
impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights
hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No
representative or agent of City may waive the effect of this provision.
D. This Agreement, together with referenced exhibits and attachments, constitutes the
entire agreement between the parties hereto, and any prior agreement, assertion, statement,
understanding, or other commitment occurring during the term of this Agreement or subsequent
thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if
appropriate, recorded as an amendment of this Agreement.
E. This Agreement shall be interpreted in accordance with the laws of the State of Texas
and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction
sitting in Denton County, Texas.
IN WITNESS WHEREOF, the ies do hereby affix their signatures and enter into this
Agreement as of the :~A!W day of , 2010 .
GEO G C. CAMPBELL, CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
J
BY: f: -
DENTON KIWANIS CLUB
BY:
VIRG ERL
PRESI ENT
ATTEST:
BY:
SECRETARY
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