21-1594ORDINANCE NO. 21-1594
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING A SECOND AMENDED
AND RESTATED SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS,
AND KIWANIS YOUTH SERVICES, INC., FOR THE PURPOSE OF 4TH OF JULY
FIREWORKS SHOW SPONSORSHIP; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, due to the COVID-19 pandemic, Kiwanis Youth Services, Inc., is unable to
provide the 4th of July fireworks show during 2021; and
WHEREAS, the City Council of the City of Denton hereby finds that the Amended and
Restated Sponsorship Agreement between the City and Kiwanis Youth Services, Inc., entered
into on September 22, 2020 for funds to be used for 2021 4th of July fireworks show
sponsorship, should be amended, restated and replaced in its entirety, and that all sponsorship
funds that were to be utilized for the 2020 and 2021 4th of July fireworks show shall be retained
by Kiwanis Youth Services, Inc., to be used for the 2022 4th of July fireworks show, which
serves 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 Interim City Manager, or her designee, is hereby authorized to execute
the Second Amended and Restated Service Agreement (the "Agreement") and to carry out the
duties and responsibilities of the City under the Agreement.
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this Ordinance was made by )3<;n e ck-- and
seconded by V � Q, : y -,;z- the Ordinance was passed and approved by
the following vote 1 —1 - Off:
Gerard Hudpseth , Mayor:
Vicki Byrd, District 1:
Brian Beek, District 2:
Jessie Davis, District 3:
Alison Maguire, District 4:
Deb Armintor, At Large Place 5:
Paul Meltzer, At Large Place 6:
Ave Nay
Abstain Absent
PASSED AND APPROVED this the day of A V qy 5 y , 2021.
GERARD HU PSETH, MAYOR
ATTEST:
ROSA RIOS, CITY SECRETARY �pF•�DF
� • R
BY:
s
APPROVED AS TO LEGAL FORM:
CATHERINE CLIFTON, INTERIM CITY ATTORNEY ',�,y '••••••••' 4 `;
Digitally signed by Mack ,1111 1181116110
O 1�1i1� %%%`
Date:2 nd
Date: 2021.08.16 10:47:33
BY: -05'00'
DocuSign Envelope ID: 9D46FEOD-3A34-40ED-8D50-007A0930A5C2
SECOND AMENDED AND RESTATED SERVICE AGREEMENT
BETWEEN THE CITY OF DENTON, TEXAS AND
KIWANIS YOUTH SERVICES, INC.
This Second Amended and Restated Agreement (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 Kiwanis Youth Services, Inc. a Texas Non -Profit Corporation,
hereinafter referred to as "Organization" and amends, restates, and replaces in its entirety the prior
Amended and Restated Sponsorship Agreement between the City and Organization entered into
on September 22, 2020.
WHEREAS, City has determined that sponsorship of the 2022 4ch of July fireworks show
serves a public purpose 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
Organization shall, in a satisfactory and proper manner, perform the following tasks, for
which the monies provided by City may be used:
The funds provided shall be used by Organization for the 2022 4" of July fireworks show.
II. OBLIGATIONS OF ORGANIZATION
In consideration of the receipt of funds from City, Organization agrees to the following
terms and conditions:
A. Forty Thousand Dollars and 00/100 ($40,000.00) has been paid to Organization by
City to be utilized for the purposes set forth in Article I. Of the $40,000.00 amount, Twenty -Five
Thousand Dollars and no/100 ($25,000.00) was paid to Organization on November 5, 2019 and
Fifteen Thousand Dollars and no/100 ($15,000.00) was paid to Organization on October 23, 2020,
both amounts totaling $40,000.00 will rollover and be used for the for the purposes set forth in
Article I and as described in Exhibit A.
B. Organization will maintain adequate records to establish that the City funds are
used for the purposes authorized by this Agreement.
C. Organization will permit authorized officials of City to review its books at any time.
D. Upon request, Organization will provide to City its Bylaws and any of its rules and
regulations that may be relevant to this Agreement.
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E. Organization will not enter into any contracts that would encumber City funds for
a period that would extend beyond the term of this Agreement.
F. Organization will appoint a representative who will be available to meet with City
officials when requested.
III. TIME OF PERFORMANCE
The services funded by City shall be undertaken and completed by Organization within the
following time frame:
The term of this Agreement shall commence on the effective date and terminate September
30, 2022 unless the contract is sooner terminated under Section VII "Suspension or Termination."
IV. PAYMENTS
A. PAYMENTS TO ORGANIZATION. City has paid to Organization the sum specified in
Article II prior to the effective date of this Agreement and will not make additional payments to
Organization for the purposes set forth in Article 1.
B. EXCESS PAYMENT. Organization 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 Organization; 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
Organization agrees to participate in an implementation and maintenance system whereby
the services can be continuously monitored. Organization agrees to make available its financial
records for review by City at City's discretion. In addition, upon request, Organization agrees to
provide City the following data and reports, or copies thereof:
A. All external or internal audits. Organization 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.
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D. To comply with this section, Organization 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. The record system of Organization shall contain
sufficient documentation to provide in detail full support and justification for each expenditure.
Organization 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.
E. Nothing in the above subsections shall be construed to relieve Organization of
responsibility for retaining accurate and current records that clearly reflect the level and benefit of
services provided under this Agreement.
VI. DIRECTORS' MEETINGS
Upon request, minutes of all meetings of Organization' 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 Organization violates any covenants,
agreements, or guarantees of this Agreement, the Organization's insolvency or filing of
bankruptcy, dissolution, or receivership, or the Organization' violation of any law or regulation to
which it is bound Linder the terms of this Agreement. The City may terminate this Agreement due
to non -appropriation of funding in the City budget and for other reasons not specifically
enumerated in this paragraph.
VIII. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS
A. Organization shall comply with all applicable equal employment opportunity and
affirmative action laws or regulations.
B. Organization 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 noncompliance by Organization with the nondiscrimination
requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and
Organization may be barred from further contracts with City.
IX. WARRANTIES
Organization 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
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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 Organization on the date
shown on 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 Organization.
C. No litigation or legal proceedings are presently pending or threatened against
Organization.
D. None of the provisions herein contravenes or is in conflict with the authority under
which Organization is doing business or with the provisions of any existing indenture or agreement
of Organization.
E. Organization 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 Organization are subject to any lien or encumbrance of any
character, except for current taxes not delinquent, except as shown in the financial statements
furnished by Organization 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. Organization shall notify City of any changes in personnel or governing board
composition.
XI. INDEMNIFICATION
TO THE EXTENT AUTHORIZED BY LAW, THE ORGANIZATION AGREES TO
INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS,
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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 THE
ORGANIZATION 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
ORGANIZATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS,
LICENSEES AND INVITEES.
XII. CONFLICT OF INTEREST
A. Organization 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 services required to be performed under this Agreement. Organization 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. Organization 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 Organization 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. 940349.8591
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ORGANIZATION
Kiwanis Youth Services, Inc.
Board President
1001 N. Elm St.
Denton, TX 76201
DocuSign Envelope ID: OD46FEOD-3A34-40ED-8D50-007AO930A5C2
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. Organization 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 Organization 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 subsequently be committed by Organization. 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 parties do hereby affix their signatures and enter into this
Agreement as of the effective date of 2IA" day of A09 USA- , 2021.
CI F DENTO EXAS
SARAH HENSLEY, INTEVM CITY
MANAGER
ATTEST:
ROSA RIOS, CITY SECRETARY
BY:
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DocuSign Envelope ID: 9046FEOD-3A34-4OED-8D5O-OO7AO93OA5C2
APPROVED AS TO LEGAL FORM:
CATHTE��DTr`TL7 PT TF -MN
sr
BY:
CITY
7RD328BF0204E5...
ATTORNEY
THIS AGREEMENT HAS BEEN
BOTH REVIEWED AND APPROVED
as to financial and operational obligations
and business terms.
EuSigqs,r
netl20C194Ei4F9...
Director of Finance
TITLE
Finance
DEPARTMENT
ATTEST.
Cassandra Ogden
PRINTED NAME
BOXW SECRETARY
KIWANIS YOUTH SERVICES, INC.
EDccuSignetl by:
11r, U1iubs
0726BE5445F241)5...
BOARD PRESIDENT
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DocuSign Envelope ID: 9D45FEOD-3A34-40ED-8D50-007A0930A5C2
EXHIBIT A
SPONSORSHIP FUND BUDGET
Kiwanis Youth Services
2022 July 4' Fireworks Show
FY2019-20 Rollover
Pyrotechnics $ 25,000
FY2020-21 Rollover
Sound System $ 2,250
Band/Equipment 3,000
Stadium Clean-up 8,500
Security 1,250
$ 15,000
Contract Total $ 40,000
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