2013-280\ \codad \departments \legal \our documents \ordinances \13 \hot funds pyl4 \festival foundation ord.doc
ORDINANCE NO. 2013-280
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON FESTIVAL
FOUNDATION 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 the Denton Festival Foundation 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 �� , 2013
r �
MAIK A. MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
AS TO LEGAL FORM:
I a J1011 1011 9M all) to I I
WHEREAS, TEX. TAX CODE § 3 5 1. 10 1 (c) authorizes the CITY to delegate • contract with
the FOUNDATION, as an independent entity, the management and supervision of programs and
activities of the type described hereinabove funded with revenue from the municipal hotel
occupancytax;
NOW, THEREFORE, in consideration • the performance • the mutual covenants anil
promises contained herein, the CITY and the FOUNDATION agree and contract as follows:
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(i) The term "hotel tax revenue" shall mean the gross monies collected and
received by the 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
• 1 1 P , .
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(a) The term "quarterly payments" shall mean payments by the CITY to th,;�
FOUNDATION of those amounts specified in 11.2, above, as determined ► the hotel tax revenuip
collecteii.
(b) Each quarterly payment shall • paid upon receipt of the required reports and after the
25 1h day following the last day • 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. The CITY may withhold the quarterly payment(s) until the
appropriate reports are received and approved, which approval shall not be unreasonably withheld.
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(a) The funding of this project in no way commits the CITY to future ftmding of this
program beyond the current contract period. Any future ftmding is solely the responsibility of th,;
FOUNDATION.
(b) It is expressly understood that this contract in no way obligates the General Fund or any
other monies • credits of the CITY.
(c) CITY may withhold further allocations if CITY determines that FOUNDATION's
expenditures deviate materially from their approved budget.
Advertising materials purchased with the hotel occupancy tax ftmds must be targeted to reach
audiences outside the Denton city limits. These materials include, but are not limited, to signs,
rposters, postcards, newsletters and print advertising.
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(a) That portion of total administrative costs of the FOUNDATION for which hotel tax
fimds may be used shall not exceed that portion of the FOUNDATION's administrative costs
actually incurred in conducting the activities specified in T2.1 above.
(b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct
wl iated-to the vromotion ♦ local tourism and
the convention and hotel industry or the performance of the person's job in an efficient and
professional manner.
III. RECORDKEEPING AND REPORTING REQUIREMENTS
3.1 Budget.
(a) The FOUNDATION shall adhere to the budget (Exhibit "A ") as approved by the City
Council for each calendar year, for all operations of the FOUNDATION funded by hotel tax
revenues. In other words, the 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 funds. The
CITY shall not pay to the FOUNDATION 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) The FOUNDATION acknowledges that approval of the budget (Exhibit "A ") by the
Denton City Council creates a fiduciary duty in the FOUNDATION with respect to the hotel tax
funds paid by the CITY to the FOUNDATION under this Agreement. The FOUNDATION 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 the CITY.
(c) Upon the application or consent of FOUNDATION, the City Manager or his
designate may authorize minor amendments to the approved budget as necessary to carry out the
intent of this Agreement, in a manner consistent with efficient use of public funds, and in
accordance with State law. Such minor amendments may not increase the overall funding set forth
in ¶1.2(b), extend the term, or otherwise alter the performance obligations of FOUNDATION,
without approval of the City Council by ordinance.
3.2 Separate Accounts. The FOUNDATION shall maintain any hotel tax funds paid to the
FOUNDATION by the CITY in a separate account or with segregated fund accounting, such that
any reasonable person can review the source of expenditures of tax funds.
3.3 Financial Records. The FOUNDATION shall maintain complete and accurate financial
records of each expenditure of the hotel tax funds made by the FOUNDATION. These funds shall
be classified as restricted funds for audited financial purposes, and may not be used for contracted
services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance
written request of the Denton City Council, the City Manager or designate, or any other person,
shall make such financial records available for inspection and review by the party making the
request. FOUNDATION understands and accepts that all such financial records, and any other
records relating to this Agreement shall be subject to the 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 contract quarter, FOUNDATION 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. The FOUNDATION shall respond promptly to any request from the
Festival Foundation HOT Funding PY2014 - Page 4
City Manager of the CITY, or designate, for additional information relating to the activities
performed under this Agreement.
3.5 Notice of Meetings. The FOUNDATION shall give the City Manager of the CITY, or his
designate, reasonable advance written notice of the time and place of all meetings of
FOUNDATION's Board of Directors, as well as any other meeting of any constituency of the
FOUNDATION at which this Agreement or any matter the subject of this Agreement shall be
considered. This provision shall not be deemed to require the FOUNDATION to give notice of any
executive session of the Executive Committee of the FOUNDATION.
IV. TERM AND TERMINATION
4.1 Term. The term of this Agreement shall commence on January 1, 2014 and terminate at
midnight on January 31, 2015. However, the program period shall commence on January 1, 2014
and terminate at midnight on December 31, 2014. 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.
(b) In the event this contract is terminated by either party pursuant to Section 4.2(a),
the CITY agrees to reimburse the FOUNDATION for any contractual obligations of the
FOUNDATION undertaken by the FOUNDATION 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 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. Notwithstanding any provision
hereof to the contrary, the obligation of the CITY to reimburse the FOUNDATION or to assume
the performance of any contractual obligations of the FOUNDATION for or under any contract
entered into by the FOUNDATION as contemplated herein shall not exceed 66 2/3% of the
current quarterly payment.
(c) Further, upon termination pursuant to ¶4.2(a), the FOUNDATION will provide the
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 the
City; 3) within 5 business days of a request from the CITY, a listing of expenditures that have
Festival Foundation HOT Funding PY2014 - Page 5
occurred since the last required reporting period; 4) a final accounting of all expenditures and tax
funds on the day of termination. The FOUNDATION will be obligated to return any unused
funds or funds determined to be used improperly. Any use of remaining funds by the
FOUNDATION 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 the FOUNDATION;
(b) The insolvency of the FOUNDATION, the filing of a petition in bankruptcy, either
voluntarily or involuntarily, or an assignment by the FOUNDATION for the benefit of creditors;
(c) The continuation of a breach of any of the terms or conditions of this Agreement by
either the CITY or the FOUNDATION 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 the FOUNDATION 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
to the other party in the event that any person has instituted litigation concerning the activities of the
non - terminating 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, FOUNDATION
agrees to refund any and all unused funds, or funds determined by the 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 the FOUNDATION with another private entity, person,
or organization for the performance of those services described in ¶2.1 above. In the event that the
FOUNDATION enters into any arrangement, contractual or otherwise, with such other entity,
person or organization, the FOUNDATION 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. The FOUNDATION shall operate as an independent contractor
as to all services to be performed under this Agreement and not as an officer, agent, servant, or
Festival Foundation HOT Funding PY2014 - Page 6
employee of the CITY. The FOUNDATION shall have exclusive control of its operations and
performance of services hereunder, and such persons, entities, or organizations performing the same
and the FOUNDATION shall be solely responsible for the acts and omissions of its directors,
officers, employees, agents, and subcontractors. The FOUNDATION shall not be considered a
partner or joint venturer with the CITY, nor shall the FOUNDATION be considered nor in any
manner hold itself out as an agent or official representative of the CITY.
5.3 Indemnification. THE FOUNDATION 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 FOUNDATION 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 FOUNDATION, ITS OFFICERS,
EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES.
5.4 Assignment. The FOUNDATION shall not assign this Agreement without first obtaining
the written consent of the 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
FOUNDATION
Denton Festival Foundation, Inc.
Carol Short
P.O. Box 2104
Denton, Texas 76202 -2104
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 the CITY and the FOUNDATION 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 the 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.
Festival Foundation HOT Funding PY2014 - Page 7
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. The FOUNDATION 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
($100,000 1$500,000 1$100,000), and
3. $500,000 Liquor /Dram Shop Liability for any event occurring on City -owned
property where alcohol will be provided or served.
CITY must be named as an additional insured on all policies (except Workers' Compensation), and
proof of coverage shall be submitted prior to any payment by the CITY.
EXECUTED this J, ..................... day of _...:..�.... '". ..—, 2013 "— _�..........,..__
ATTEST:
JI LFEI ALIJIRS,
C Sl JR. d I'ARY
THE CITY OF DENTON, TEXAS
. ....�
By:
GI °1O1rGE C. CAMPBELL,
CITY MANAGER
APPROVED AS TO LEGAL FORM:
By .__ ..
ANLI A BURG[ ,"SS,
CITY ATTORNEY
Festival Foundation HOT Funding PY2014 - Page 8
ATTEST:
BY: � ................. ..........�.......— ...........- _ . ..........
Secretary
DENTON FESTIVAL FOUNDATION, INC.
By:
Chairman/Director
APPROVED AS TO LEGAL FORM:
Festival Foundation HOT Funding PY2014 - Page 9
Denton Festival Foundation, Inc.
Denton Arts & Jazz Festiva12014
ADVERTISING
Exhibit A
Brochures $ 4,000
Magazines 4,500
Newspapers /Internet 4,320
Commercials /Photography 3,000
$ 15,820
ART
Musicians $ 46,000
Site Operations 21,000
$ 67,000
TOTAL $ 82,820