2010-286\\codad\departments\legal\our documents\ordinances\1Mot fundVexas filmmakers ord.doc
ORDINANCE NO. 2010-286
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT BETWEEN THE CITY OF DENTON AND TEXAS FILMMAKERS
CORPORATION FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND
PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager, or his designee, is hereby authorized to execute an
agreement between the City of Denton and Texas Filmmakers Corporation for the payment and
use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of
which is attached hereto and made a part hereof.
SECTION 2. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the Z day of 2010.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
AGREEMENT BETWEEN THE CITY OF DENTON AND
TEXAS FILMMAKERS CORPORATION (PY2011)
PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE
THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation
(the "CITY"), and Texas Filmmakers Corporation, a legal entity incorporated under the laws of the
State of Texas (the "CORPORATION"):
WHEREAS, TEx. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal
hotel occupancy tax ("hotel tax") not exceeding seven percent (71/o) of the consideration paid by a
hotel occupant; and
WHEREAS, by ordinance, CITY has provided for the assessment and collection of a
municipal hotel occupancy tax in the City of Denton of seven percent (70/o); and
WHEREAS, TEx. TAX CODE §351.101(a) authorizes CITY to use revenue from its
municipal hotel occupancy tax to promote tourism and the convention and hotel industry by
advertising and conducting solicitations and promotional programs to attract tourists and convention
delegates or registrants to the municipality or its vicinity; and
WHEREAS, CORPORATION is well equipped to perform those activities; and
WHEREAS, TEx. TAX CODE §351.101(c) authorizes CITY to delegate by contract with
CORPORATION, as an independent entity, 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, CITY and CORPORATION agree and contract as follows:
1. HOTEL TAX REVENUE PAYMENT
1.1 Consideration. For and in consideration of the activities to be performed by
CORPORATION under this Agreement, CITY agrees to pay to CORPORATION a portion of the
hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments
by CITY to CORPORATION sometimes herein referred to as the "agreed payments" or "hotel tax
funds").
1.2 Amount of Payments.
(a) As used in this Agreement, the following terms shall have the following specific
meanings:
(i) The term "hotel tax revenue" shall mean the gross monies collected and
received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of
the price paid for a room in a hotel, pursuant to Texas Tax Code 351.002 and City
Ordinance. Hotel tax revenue will include penalty and interest related to the late
payments of the tax revenue by the taxpayer.
Texas Filmmakers HOT Funding PY2011 - Page 1
(ii) The term "Collection period" will mean the collection period for CITY's
fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and
collected through the 22nd day of the month following the close of the relevant fiscal year.
(iii) The term "base payment amount" shall mean a net amount of money equal
to the total hotel tax revenue collected by CITY during any relevant period of time (i.e.,
fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such
relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and
auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for
which attorneys or agents effect compliance or collection of the hotel tax from taxpayers);
and (2) court costs and other expenses incurred in litigation against, or auditing of, such
taxpayers.
(iv) The term "contract quarter" shall refer to any quarter of the calendar year in
which this Agreement is in force. Contract quarters will end on March 31St, June 30"',
September 30th, and December 31St of each contract year.
(b) In return for satisfactory performance of the activities set forth in this Agreement
and all attachments hereto, CITY shall pay to CORPORATION an amount of money in each
contract year equal to the lesser amount of Thirty-Eight One Hundredths percent (0.38%) of the
annual base payment amount, or the fixed contract amount of Five Thousand Dollars ($5,000).
This amount will be paid in one lump sum after the 25th of January 2011. If CITY's Chief
Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated
budget projection, CITY may reduce CORPORATION's current budget at any time during the
contract period. Payment is subject to refund of any unused or improperly expended funds from
the prior contract period, and CITY's timely receipt of the required quarterly reports.
1.3 Dates of Payments.
(a) The term "payments" shall mean payments by CITY to CORPORATION of those
amounts specified in 11.2, above, as determined by the hotel tax revenue collected.
(b) Each quarterly payment shall be paid upon receipt of the required reports and after the
25'h day following the last day of the contract quarter. If any quarterly financial report is not
received within thirty (30) days of the end of the applicable contract quarter, the recipient may be
held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate
reports are received and approved, which approval shall not be unreasonably withheld.
1.4 Other limitations regarding consideration.
(a) The funding of this project in no way commits CITY to future funding of this program
beyond the current contract period. Any future funding is solely the responsibility of
CORPORATION.
(b) It is expressly understood that this contract in no way obligates the General Fund or any
other monies or credits of CITY.
Texas Filmmakers HOT Funding PY2011 - Page 2
(c) CITY may withhold further allocations if CITY determines that CORPORATION's
expenditures deviate materially from their approved budget.
II. USE OF HOTEL TAX REVENUE
2.1 Use of Funds. For and in consideration of the payment by CITY to CORPORATION of
the agreed payments of hotel tax funds specified above, CORPORATION agrees to use such hotel
tax funds only for advertising and conducting solicitations and promotional programs to attract
tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by
TEx. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December
31 st of that year shall be refunded to CITY within sixty (60) days.
Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach
audience outside the Denton city limits. These materials include, but are not limited to, signs,
posters, postcards, newsletters and print advertising.
2.2 Specific Restrictions on Use of Funds.
(a) That portion of total administrative costs of CORPORATION for which hotel tax
funds may be used shall not exceed that portion of CORPORATION's administrative costs actually
incurred in conducting the activities specified in ¶2.1 above.
(b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct
an activity, the primary purpose of which is not directly related to the promotion of local tourism
and the convention and hotel industry and the performance of the person's job in an efficient and
professional manner.
III. RECORDKEEPING AND REPORTING REQUIREMENTS
3.1 Budget.
(a) CORPORATION shall adhere to the budget (Exhibit "A") as approved by the City
Council for each calendar year, for all operations of CORPORATION in which the hotel tax funds
shall be used by CORPORATION. In other words, CITY should be able to audit specifically the
purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel
tax. CITY shall not pay to CORPORATION any hotel tax revenues as set forth in Section I of this
contract during any program year of this Agreement unless a budget for such respective program
year has been approved in writing by the Denton City Council, authorizing the expenditure of funds.
(b) CORPORATION acknowledges that approval of the budget (Exhibit "A") by the
Denton City Council creates a fiduciary duty in CORPORATION with respect to the hotel tax funds
paid by CITY to CORPORATION under this Agreement. CORPORATION shall expend hotel tax
funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE
§351.101(a) and in the budget as approved by CITY.
3.2 Separate Accounts. CORPORATION shall maintain any hotel tax funds paid to
CORPORATION by CITY in a separate account or with segregated fund accounting, such that any
reasonable person can ascertain the revenue source of any given expenditure.
Texas Filmmakers HOT Funding PY2011 - Page 3
3.3 Financial Records. CORPORATION shall maintain complete and accurate financial
records of each expenditure of the hotel tax funds made by CORPORATION. These funds are
required to be classified as restricted funds for audited financial purposes, and may not be used for
contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable
advance written request of the Denton City Council, the City Manager or designate, or any other
person, CORPORATION shall make such financial records available for inspection and review by
the parry making the request. CORPORATION understands and accepts that all such financial
records, and any other records relating to this Agreement shall be subject to the Texas Public
Information Act, TEx. Gov'T CODE, ch. 552, as hereafter amended.
3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the
end of every quarter thereafter, until all funds have been expended and reported to CITY,
CORPORATION shall furnish to CITY: (1) a completed financial report, (2) a list of the
expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to
TEx. TAX CODE §351.101(c), and (3) a copy of all financial records (e. g., copies of front and back
cleared checks or bank statements, and other relevant documentation). Both the financial and
expenditure reports will be in a form either determined or approved by the City Manager or
designate. CORPORATION shall respond promptly to any request from the City Manager of
CITY, or designate, for additional information relating to the activities performed under this
Agreement.
3.5 Notice of Meetings. CORPORATION shall give the City Manager of CITY, or his
designate, reasonable advance written notice of the time and place of all meetings of
CORPORATION's Board of Directors, as well as any other meeting of any constituency of
CORPORATION, at which this Agreement or any matter subject to this Agreement shall be
considered.
IV. TERM AND TERMINATION
4.1 Term. The term of this Agreement shall commence on January 1, 2011, and terminate at
midnight on January 31, 2012. However, the program period shall commence on January 1, 2011
and terminate at midnight on December 31, 2011. Only those expenditures authorized by Chapter
351 of the Texas Tax Code and the program guidelines, which are actually incurred during the
program period, for events and activities taking place within the program period, are eligible for
funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to
CITY upon termination of the Agreement.
4.2 Termination Without Cause.
(a) This Agreement may be terminated by either party, with or without cause, by giving
the other party sixty (60) days advance written notice.
Texas Filmmakers HOT Funding PY2011 - Page 4
(b) In the event this contract is terminated by either party pursuant to Section 4.2(a),
CITY agrees to reimburse CORPORATION for any contractual obligations of CORPORATION
undertaken by CORPORATION in satisfactory performance of those activities specified in 112.1
and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This
reimbursement is conditioned upon such contractual obligations having been incurred and
entered into in the good faith performance of those services contemplated in 112.1 and 2.2 above,
and further conditioned upon such contractual obligations having a term not exceeding the full
term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of
CITY to reimburse CORPORATION, or to assume the performance of any contractual
obligations of CORPORATION, for or under any contract entered into by CORPORATION as
contemplated herein, shall not exceed 66 2/3% of the current quarterly payment.
(c) Further, upon termination pursuant to ¶4.2(a), CORPORATION will provide
CITY: 1) within 10 business days from the termination notification, a short-term budget of
probable expenditures for the remaining 60 day period between termination notification and
contract termination. This budget will be presented to Council for approval within 10 business
days after receipt by CITY. If formal approval is not given within 10 business days, and the
budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and
is within the current contractual period approved budget; the budget will be considered
approved; 2) within 30 days, a full accounting of all expenditures not previously audited by
CITY; 3) within 5 business days of a request from CITY, a listing of expenditures that have
occurred since the last required reporting period; 4) a final accounting of all expenditures and tax
funds on the day of termination. CORPORATION will be obligated to return any unused funds,
or funds determined to be used improperly. Any use of remaining funds by CORPORATION
after notification of termination is conditioned upon such contractual obligations having been
incurred and entered into in the good faith performance of those services contemplated in 2.1 and
2.2 above, and further conditioned upon such contractual obligations having a term not
exceeding the full term of this Agreement.
4.3 Automatic Termination. This Agreement shall automatically terminate upon the
occurrence of any of the following events:
(a) The termination of the legal existence of CORPORATION;
(b) The insolvency of CORPORATION, the filing of a petition in bankruptcy, either
voluntarily or involuntarily, or an assignment by CORPORATION for the benefit of creditors;
(c) The continuation of a breach of any of the terms or conditions of this Agreement by
either CITY or CORPORATION for more than thirty (30) days after written notice of such breach
is given to the breaching party by the other party; or
(d) The failure of CORPORATION to submit a financial quarterly report which complies
with the reporting procedures required herein and generally accepted accounting principles prior to
the beginning of the next contract term, or quarterly as required by Section 1.3 hereof.
4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision
of this Agreement, to mitigate damages and to preserve evidence and issues for judicial
determination, either party shall have the right to terminate this Agreement upon immediate notice
Texas Filmmakers HOT Funding PY2011 - Page 5
to the other parry in the event that any person has instituted litigation concerning the activities of the
non-terminating party, and the terminating parry reasonably believes that such activities are required
or prohibited under this Agreement.
4.5 In the event that this Agreement is terminated pursuant to 114.3 or 4.4, CORPORATION
agrees to refund any and all unused funds, or funds determined by CITY to have been used
improperly, within 30 days after termination of this Agreement.
V. GENERAL PROVISIONS
5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor
be construed to prohibit, the agreement by CORPORATION with another private entity, person, or
organization for the performance of those services described in 12.1 above. In the event that
CORPORATION enters into any arrangement, contractual or otherwise, with such other entity,
person or organization, CORPORATION shall cause such other entity, person, or organization to
adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and
to TEx. TAX CODE ch. 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. CORPORATION 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 CITY. CORPORATION shall have exclusive control of its operations and
performance of services hereunder, and such persons, entities, or organizations performing the
same, and CORPORATION shall be solely responsible for the acts and omissions of its directors,
officers, employees, agents, and subcontractors. CORPORATION shall not be considered a partner
or joint venturer with CITY, nor shall CORPORATION be considered, nor in any manner hold
itself out as, an agent or official representative of CITY.
5.3 Indemnification. CORPORATION AGREES TO INDEMNIFY, HOLD
HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES
FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE,
LOSS, OR LIABILITY OF WHATEVER HIND OR CHARACTER, ARISING OUT OF OR
IN CONNECTION WITH THE PERFORMANCE BY CORPORATION 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 CORPORATION, ITS OFFICERS,
EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES.
5.4 Assignment. CORPORATION shall not assign this Agreement without first obtaining the
written consent of CITY.
5.5 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:
Texas Filmmakers HOT Funding PY2011 - Page 6
CITY
City Manager
City of Denton
215 E. McKinney
Denton, TX 76201
CORPORATION
Texas Filmmakers Corporation
405 South Elm Street St# 102
Denton, Texas 76201
5.6 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 obligation
of CITY and CORPORATION and their respective successors and assigns.
5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject
to all applicable federal laws, state laws, the Charter of CITY of Denton, all ordinances passed
pursuant thereto, and all judicial determinations relative thereto.
5.8 Exclusive 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 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 and conditions of any other
document relating to this transaction or these transactions.
5.9 Duplicate Originals. This Agreement is executed in duplicate originals.
5.10 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.
5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this
Agreement, or application thereof to any person or circumstance is held invalid by any court of
competent jurisdiction, such holding shall not affect the validity of the remaining portions of this
Agreement, and the parties hereby declare they would have enacted such remaining portions despite
any such invalidity.
5.12 Insurance. CORPORATION shall provide insurance as follows:
1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering
all events taking place on City-owned property,
2. Statutory Workers' Compensation and Employers' Liability
($100,0001$500,0001$100,000), and
3. $250,000 Liquor/Dram Shop Liability for any event occurring on City-owned
property where alcohol will be provided or served.
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EXECUTED this day of , 2010.
ATTEST:
ATTEST:
.y
B •
NNIFE AL RS,
ITY SE TARY
By:
Secretary
THE CITY OF DENTON, TEXAS
By
RG C. CAMPB L,
CITY MANAGER
APPROVED AS TO LEGAL FORM:
TA BURGESS,
CITY ATTORNEY
TEXAS
By:
CORPORATION
APPROVED AS TO LEGAL FORM:
By:
Texas Filmmakers HOT Funding PY2011 - Page 8
Exhibit A
Texas Filmmakers Corporation
Thin Line Film Festival
PY 2011 Budget
Advertising
Print $ 2,500
(Dallas Observer, DMN, Austin Statesman, Houston Chronicle
Indie Slate & Movie Maker)
Radio 1,500
(WRR and The Bone)
Television 1,000
(Sanger/Pilot Point, Lewisville, Ft. Worth & Dallas Cable)
$ 5,000
Total $ 5,000