18-1970s:\legal\our documents\ordinances\18\hot py2019\gdac ordinance.doc
ORDINANCE NO. 1$-19%O
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT BETWEEN THE CITY OF DENTON AND THE GREATER DENTON ARTS
COUNCIL, 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 1. The City Manager, or his designee, is hereby authorized to execute an
agreement between the City of Denton and the Greater Denton Arts Council, 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. �,
The motion to �������•��^��, this Ordinance was made by ,�� �� ��� �� �� ��" ,��_____ and
seconded by ���I��'�a �'���� �`,���"�� __, the Ordinance was ��������,�:1 and approved by
the following vote � "�� - �"� ��:
Chris Watts, Mayor:
Gerard Hudspeth, District 1:
Keely G. Briggs, District 2:
Don Duff, District 3:
John Ryan, District 4:
Deb Armintor, At Large Place 5:
Paul Meltzer, At Large Place 6:
� �
PASSED AND APPROVED this the �;���_��� _ day of
ATTEST;
JENNIFER WALTERS, CITY SECRETARY
BY� . .'� ���'�� ��°'' ��a. �.��.��J �.�.���.���' _��._� �
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
�� � � � .� ,r,,
BY: �""`� ��;�� ..�,���&,���..
Abstain Absent
CHRIS `ti�"ATTS, MAYOR
2018,
. . ; � � � � � , � � � � �
, . . � , i � ,• � ,i; �. �. . � �,
; � , .
THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation
(the "CITY"), and the Greater Denton Arts Council, Inc., a nan-profit corparation incarporated
under the laws of the State af Texas (the 66GI7AC").
WHEREAS, TEx. TAx CoDE §351.002 authorizes CITY to levy by ordinance a municipal
hotel occupancy tax ("1lOLP� 6d.X99) not exceeding seven percent (7%) of the consideration paid by a
hotel occupant; and
WHFREAS, by ordinance, CITY has �rovided for the assessment and vollectian of a
municipal hatel occupancy tax in the city of Denton of seven percent (7%); and
WHER�AS, 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 canventian
delegates or registrants to the municipality or its vicinity; and
WHEREAS, GDAC is well equipped ta perform those activities; and
WHFREAS, TEx. TAx CoDE §351.101(c) authorizes CITY ta delegate by contract with
GDAC; as an independent entity, the management and supervisian of pragrams and activities of the
type described hereinabove funded with revenue from the municipal hotel occupancy tax;
NOW, THEREFORE, in consideration of the performance af the mutual covenants and
prornises contained herein, CITY and GDAC agree and contract as fallows:
1.1 Consideration. Far and in consideration of the activities to be performed by GDAC under
this Agreement, CITY agrees to pay ta GDAC a portion of the hotel tax revenue collected by CITY
at the rates and in th; manner specified herein (such payments by CITY to GDAC sametimes herein
referxed to as the "agreed payments" ar "hotel taa;. funds")
1.2 Amount of Payments.
(a) As used in this Agreement, the follawing terms shall have the following specific
meanings:
(i) The term "hatel 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 W11I ir.clude penalty and interest related to the late
payments af the tax revenue by the taxpayer.
GDAC HO'f Funds, PY2019 - 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 "co�°.�t���,t q����°t;c�."" sh��l� ����c:�� to any c:�����•t��� ��fl` �t�c, calen���aa.• v�ar in
which this Agreement is in �����•��e. �'c�e���.ract �,�������i,c����s will �����i a�.r� Cvl�rm�c;��� 31st, J�r��t.w:� 30�',
September 30�', and December 31St of each contract year.
(b) In :eturn for satisfactory performance of the activities set forth in this Agreement
and all attachments hereto, CITY shall pay to GDAC an amount of money in each contract year
equal to the lesser amount of: Four and Fifty-Three Hundredths percent (4.53%) of the annual
base payment amount, or the fixed contract amount of One Hundred Forty-Seven Thousand
Eighty-Four pollars ($147,084). This amount will be divided into quarterly payments equal to
25% 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
fourth quarterly payment will represent 25% of the iixed contract amount or the unpaid
remainder of 4.53% 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 the GDAC's current budget at any time during the contract period.
Each quarterly 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 "quarterly payments" shall mean payments by CITY to GDAC of those
amounts specified in ¶1.2, above, as deterrnined by the hotel tax revenue collected.
(b) Each quarterly payment shall be paid upon receipt of the required reports, and after
the 25th 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 �f this Agreement. CITY may withhold the quarterly payment(s) until the
appropriate reports are received and approved, which approval shall not be unreasonably withheld.
GDAC HOT Funds, PY2019 - Page 2
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 GDAC.
(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 determines that GDAC's expenditures
deviate materially from their approved budget.
I' ' 1 '. 1 :�:�:� �►+/ �1►`lll'y
2.1 Use of Funds. For and in consideration of the payment by CITY to GDAC of the agreed
payments of hotel tax funds specified above, GDAC agrees to use such hotel tax funds only for (1)
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) ; and (2) encourage promotion, improvement, and application of the arts, including
instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and
allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio,
television, tape and sound recording, and other arts related to the presentation, performance,
execution, and exhibition of these major art forms, as authorized by TEx. TAx CoDE §351.101(a)(4).
Funds for any calendar year which are unused by midnight December 31 S� 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
audiences outside the Denton city limits. These materials include, but are not limited to, signs,
posters, postcards, newsletters, print advertising, digital marketing, billboards, radio and television.
2.2 Administrative Costs. The hotel tax funds received from CITY by GDAC may be spent
for day-to-day operations, office supplies, salaries, travel expenses and other administrative costs
allowed by TFx. TAx CoDE §351.101(e), but only if specified in GDAC's budget attached hereto as
Exhibit "A" and incorporated herein for all purposes and each such expenditure is directly
attributable to work on programs which promote tourism and the hotel and convention industry, and
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) GDAC agrees to demonstrate strict compliance with the record keeping and
apportionment limitations imposed by TEx. TAx CoDE §351.101(fl and §351.108 (c) and (d).
GDAC shall not utilize hotel tax funds for any expenditure, which has not been specifically
documented to satisfy the purposes set forth in ¶¶2.1 and 2.2 above.
(b) Hotel t� 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.
GDAC HOT Funds, PY2019 - Page 3
i . �. �, � . � . ,�, . � . .�
3.1 Budget.
(a) GDAC shall adhere to the budget (Exhibit "A") as approved by the City Council for
each calendar year, for all operations of GDAC in which the hotel tax funds shall be used by
GDAC. 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 funds. CITY shall not
pay to GDAC 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) GDAC acknowledges that approval of the budget (Exhibit "A") by the Denton City
Council creates a fiduciary duty in GDAC with respect to the hotel tax funds paid by CITY to
GDAC under this Agreement. GDAC 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.
(c) Upon the application or consent of GDAC, 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 GDAC, without approval of the City Council
by ordinance.
3.2 Separate Accounts. GDAC sha11 maintain any hotel taac funds paid to GDAC 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. GDAC shall maintain complete and accurate financial records of
each expenditure of the hotel tax funds made by GDAC. 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, GDAC
shall make such financial records available for inspection and review by the party making the
request. GDAC 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 (30) days
after the end of every contract quarter, GDAC 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), social media and/or digital marketing
expenditures require invoices to be provided and shall include performance measures, and (3) a
copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and
other relevant documentation). GDAC shall prepare and deliver all reports in a form and manner
approved by the City Manager or designate. GDAC shall respond promptly to any request from the
GDAC HOT Funds, PY2019 - Page 4
City Manager of CITY, or designate, for additional information relating to the activities performed
under this Agreement.
3.5 Notice of Meetings. GDAC shall give the City Manager of CITY, or his designate,
reasonable advance written notice of the time and place of all meetings of GDAC's Board of
Directors, as well as any other meeting of any constituency of GDAC, at which this Agreement or
any matter subject to this Agreement shall be considered.
4.1 Term. The term of this Agreement shall commence on January 1, 2019, and terminate at
midnight on January 31, 2020. However, the program period shall commence on January 1, 2019
and terminate at midnight on December 31, 2019. 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 this Agreement.
4.2 Termination Without Cause.
(a) This Agreement may be terminated by either party, with or without cause, by giving
the other parly sixty (60) days advance written notice.
(b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY
agrees to reimburse GDAC for any contractual obligations undertaken by GDAC 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.
Notwithst�nding any provision hereof to the contrary, the obligation of CITY to reimburse
GDAC, or to assume the performance of any contractual obligations of GDAC, for or under any
contract entered into by GDAC as contemplated herein, shall not exceed 66 2/3% of the current
quarterly payment.
(c) Further, upon termination pursuant to ¶4.2(a), GDAC will provide CITY: 1) within
ten (10) business days from the termination notiiication, a short-term budget of probable
expenditures for the remaining sixty (60) day period between termination notification and
contt�act termination. This budget will be presented to Council for approval within ten (10)
business days after receipt by CITY. If formal approval is not given within ten (10) business
days, 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 thirty (30) days, a full accounting of all expenditures not
previously audited by CITY; 3) within five (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. GDAC will be obligated to return any
unused funds, or funds determined to be used improperly. Any use of remaining funds by GDAC
GDAC HOT Funds, PY2019 - Page 5
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 GDAC;
(b) The insolvency of GDAC, the filing of a petition in bankitiiptcy, either voluntarily or
involuntarily, or an assignment by GDAC 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 GDAC 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 GDAC to submit a iinancial 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 ¶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
deterrnination, 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, GDAC agrees to
refund any and all unused funds, or funds determined by CITY to have been used improperly,
within thirty (30) days after termination of this Agreement.
5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor
be construed to prohibit, the agreement by GDAC with another private entity, person, or
organization for the performance of those services described in ¶2.1 above. In the event that GDAC
enters into any arrangement, contractual or otherwise, with such other entity, person or organization,
GDAC 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 rnaintenance, and limitations and prohibitions pertaining to
expenditure of the agreed payments and hotel tax funds.
5.2 Independent Contractor. GDAC shall operate as an independent contractor as to all
services to be performed under this Agreernent and not as an officer, agent, servant, or employee of
CITY. GDAC shall have exclusive control of its operations and perforrnance of services hereunder,
and such persons, entities, or organizations performing the same, and GDAC shall be solely
GDAC HOT Funds, PY2019 - Page 6
responsible for the acts and omissions af its directors, officers, employees, agents, and
subcontractors. GDAC shall not be considered a partner ar joint venturer with CITY, nor shall
GDAC be considered, nor in any manner hold itself aut as, an agent or afficial representative of
CITY.
�� � '1� • '' # '!1 1 1 .• _� . ��
1 1 1 ' . . � �' � � � , . � . . °
� �;. �. . �. . � �� ;
1 . , . � �. ,. �. „ . � � � �,� � ,�
� , �. , ; �, � � • � � . � ;
. . � , . �;� . �; • '!�
;... � ;'� i � � � 1 . �,� . �� . 1' :• 1
,� , ;I' �, . ,� . . � � � � � .
, �;, � . ►', � . ; � � , �;.
, . 1
5.4 Assignment. GDAC 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, ardinance, or
regulation, shall be effective when given in writing and deposited in the United States mail, certified
mail, return receipt requested, ar by hand-delivery, addressed to the respective parties as follaws:
CITY
City Manager
CITY OF DENTUN
215 E. McKinney
Denton, TX 7b201
GDAC
Geargina Ngozi
GREATER DENTON
INC.
400 E. Hickory
Denton, TX 76201
ARTS COUNCIL,
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 GDAC and their respective successors and assigns.
5.7 Application of Laws. All terms, conditions, and provisians of this Agreement are subject
ta all applicable federal laws, state laws, the Charter of the City of Dentan, 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 hereta concerning the subject matter cantained herein.
There are na representations, agreements, arrangements, or understandings, oral or written, express
or implied, between ar 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,
GDAC HOT Funds, PY2019 - Page 7
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. GDAC shall, at a minimum, 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. $�50,000 Liquor/Dram Shop Liability for any event occurring on City-owned
property where alcohol will be provided or served, and
3. $500,000 Business Automobile Liability on any owned, non-owned or hired
vehicles.
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 CITY.
EXECUTED this ���° �,'�„_ day of �����°��°���,,�aW���_ , 2018.
ATTEST;
BY� ..���� ���'���,����"� "�°���������.W,Y��t'�'��������
:11��1�f1���I� WALTERS,
CITY SECRETARY
THE CITY OF I:�:[^V1"�°I'(:) , TEXAS
�
a�,�
.
�� � w �
By. �������._._.::, ���..........� . w.�v
�. �
� � �..
_�... � �.�. � .._
TODD HI �
LEMAN,
CITY MANAGER
APPROVE�'�.�� TO LEGAL FORM.
� "�.. ° ,
� �w� � ,,
By: „„�'` ��,� � ��""'�
AARON LEAL ���� � �
,
CITY ATTORNEY
GDAC HOT Funds, PY2019 - Page 8
Greater Denton Arts Councll
Program Year 2019
Advertlsing
Exhlblt A
Webslte Partial Salary $ 15,000
Area Arts Partnershlps 2,000
Dlrect Promotian: Print, Internet, News/Mag 4,200
$ 21,200
�
FaclBity Staff $ 30,000
m
Execu4lve Dlrector Partial Salary
Adminls4rative Staff Partial Salary
Exhlbitian Partlal Salary
Exhibition Honorees and Displays
Office Supplies
$ 33,000
50,000
20,000
27,884
5,000
S 95,884
0
i� " i� r �� ' #�� � * ' + ' "
147,084