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2012-2731\codadldepartmentsUegallour documentslordinances1121hot fund py13\air fair ordinance.doc ORDINANCE NO. ZO 12"273 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON AIR FAIR, 1NC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION l. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Air Fair, Inc. 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 � day of ����� , 2012. MARK A�B�OUGI�S, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON AIR FAIR, INC. (PY2013) 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 the Denton Air Fair, Inc., a legal entity incorporated under the laws of the State of Texas (the "AIR FAIR"): WHEREAS, TEx. T� CoDE §351.002 authorizes CITY to levy by ardinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) 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 t� in the City of Denton of seven percent (7%); and WHEREAS, TEx. T� CODE §351.101(a) autharizes 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, AIR FAIR is well equipped to perform those activities; and WHEREAS, TEx. Tax CoDE §351.101(c) authorizes CITY to delegate by contract with AIR FAIR, 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 AIR FAIR agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by AIR FAIR under this Agreement, CITY agrees to pay to AIR FAIR a portion of the hotel t� revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to AIR FAIR 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 t� revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Denton Air Fair, Inc PY2013 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel t� 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 t� 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 period 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 t�payers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such t�payers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this A�reement is in force. Contract quarters will end on March 315Y, June 30�', September 30 , 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 AIR FAIR an amount of money in each contract year equal to the lesser amount of: Sixty-Eight One Hundredths percent (0.68%) of the annual base payment amount, or the fixed contract amount of Ten Thousand Two Hundred and Forty Dollars ($10,240). This amount will be divided into two payments equal to 50% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The final payment will represent 50% of the fixed contract amount or the unpaid remainder of 0.68% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce AIR FAIR's current budget at any time during the contract period. Each 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 AIR FAIR of those amounts specified in ¶1.2, above, as deternuned by the hotel tax revenue collected. (b) Each payment shall be paid upon receipt of the required reports and after the 25�' of January 2013 and after the 25�' of Apri12013. 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 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 AIR FAIR. Denton Air Fair, Inc PY2013 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY detertnines that AIR FAIR'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 AIR FAIR of the agreed payments of hotel tax funds specified above, AIR FAIR 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. T.� CoDE §351.101(a). Funds for any calendar year which are unused by midnight December 315t of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy t� funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the AIR FAIR may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(e), but only if specified in AIR FAIR's budget (Exhibit "A") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE 351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the AIR FAIR for which hotel tax funds may be used shall not exceed that portion of the AIR FAIR'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 or the performance of the person's job in an efficient and professional manner. III. RECORD KEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) AIR FAIR shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of AIR FAIR in which the hotel t� funds shall be used by AIR FAIR. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel t� funds from the separate account relating to hotel tax. CITY shall not pay to AIR FAIR any hotel tax revenues as set forth in Section I of this contract during any program year Denton Air Fair, Inc PY2013 - Page 3 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) AIR FAIR acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in AIR FAIR with respect to the hotel tax funds paid by CITY to AIR FAIR under this Agreement. AIR FAIR shall expend hotel t� 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. AIR FAIR shall maintain any hotel tax funds paid to AIR FAIR 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. 3.3 Financial Records. AIR FAIR shall maintain complete and accurate financial records of each expenditure of the hotel t� funds made by AIR FAIR. 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, AIR FAIR shall make such fmancial records available for inspection and review by the party malcing the request. AIR FAIR understands and accepts that a11 such fmancial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act,1�x. Gov'T CoDE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel t� funds, and within thirty days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, AIR FAIR sha11 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 T�x. 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. AIR FAIR 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. AIR FAIR sha11 give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of AIR FAIR's Board of Directors, as well as any other meeting of any constituency of AIR FAIR, 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 l, 2013, and terminate at midnight on January 31, 2014. However, the program period shall commence on January 1, 2013 and terminate at midnight on December 31, 2013. 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. Denton Air Fair, Inc PY2013 - Page 4 4.2 Termination Without Cause. (a) This Agreement may be terniinated by eitber party, with or without cause, by giving the other paxty sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse AIR FAIR for any contractual obligations of AIR FAIR undertalcen by AIR FAIR in satisfactory performance of those activities specified in ¶¶2.1 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 perfortnance 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. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse AIR FAIR, or to assume the performance of any contractual obligations of AIR FAIR, for or under any contract entered into by AIR FAIR as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon ternunation pursuant to ¶4.2(a), AIR FAIR 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 wi11 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 a11 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. AIR FAIR will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by AIR FAIR 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 AIR FAIR; (b) The insolvency of AIR FAIR, the iiling of a petition in bankr�,iptcy, either voluntarily or involuntarily, or an assignment by AIR FAIR 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 AIR FAIR for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or Denton Air Fair, Inc PY2013 - Page S (d) The failure of AIR FAIR 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 irrunediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non-ternunating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, AIR FAIR 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 sha11 prohibit, nor be construed to prohibit, the agreement by AIR FAIR with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that AIR FAIR enters into any arrangement, contractual or otherwise, with such other entity, person or organization, AIR FAIR 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. AIR FAIR sha11 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. AIR FAIR sha11 have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations perforining the same, and AIR FAIR shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. AIR FAIR sha11 not be considered a partner or joint veniurer with CITY, nor shall AIR FAIR be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemniiication. AIR FAIR 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 KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY AIR FAIR 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 AIR FAIR, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. Denton Air Fair, Inc PY2013 - Page 6 5.4 Assignment. AIR FAIR 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: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 AIR FAIR Amanda Addington Denton Air Fair, Inc. 3241 Montecito Rd Denton, Texas 76205 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 AIR FAIR 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 sha11 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. AIR FAIR shall, at a minimum, provide insurance as follows: 1. $5,000,000 Commercial General Liability, or $5,000,000 Event Insurance, covering all events taking place on City-owned property, Denton Air Fair, Inc PY2013 - Page 7 2 3. Statutory Workers' Compensation and Employezs' Liability ($100,000/$500,000/$100,000} OR an Occupational Accident Insurance program if approved by the City's Risk Manager, and $500,000 Liquor/Dram Shop Liability for any event occurring on City-owned property •where alcohol��viil��e-provided �or �served. �• CITY must be named as an additional insnred on all policies (except Workers' Compensation) and proof of coverage shalI be submitted prior to any payment by CITY. EXECUTED this � day of __(�� , 2012. ATTEST: � � ' +�, i I�► � I l.� ' � . ���f •+,�' ' ' - - � ,. � ATTEST: : Secretary TI-� CITY OF DENTON, TEXAS By: GEORGE C. CAMPB LL, C Y AGER � � � � ���,1��. �� APPROV A�-T- - GAL �_ I•\\IYr�': j ' •' DENTON AIR FAIR, gy. hairman/Director APPROVED AS TO LEGAL FORM: : Denton Air Fair, Inc PY20I3 - Page S� Denton Air Fair, Inc. Denton Air Show 2013 Program Year 2013 Budget Advertising Radio Magazine & lVewspaper Internet Posters Exhibit A $ 5,500 2,140 1,700 900 $ 10, 240 Total Budget $ 10,240