21-253921-2539
ORDINANCE NO.
AN ORDINANCE AUTHORIZING THE CITY MANAGER 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 IN
SUPPORT OF ART EXHIBITIONS AND PROGRAMMING; AND PROVIDING AN
EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager, or 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 approve this Ordinance was made by —\)C' -V; S and
seconded by -(- � c> -n Ie C t(-- ; the Ordinance was passed and approved by
the following vote [-7 - 01:
Gerard Hudspeth, Mayor:
V11 -
Vicki Byrd, District 1:
Vicki
V
Brian Beck, District 2:
✓
Jessie Davis, District 3:
Alison McGuire, District 4:
✓
Deb Armintor, At Large Place 5:
✓
Paul Meltzer, At Large Place 6:
Abstain Absent
PASSED AND APPROVED this the j `ifih day of -\,) 2.Ce.Mb-2..5 92021.
GERARD HUDSPETH, MAYOR
ATTEST:
ROSA RIOS, CITY SECRETARY•`��V J0 F'DF'p'f
BY:A semAL � c2iL.6�
APPROVED AS TO LEGAL FORM:''•�Fi�.`••...••••'` eco 'Z'
••
MACK REINWAND, CITY ATTORNEY ����f�o i•�iI%,
BY:
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AGREEMENT BETWEEN THE CITY OF DENTON AND THE GREATER DENTON
ARTS COUNCIL, INC. (PY2022) 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 Greater Denton Arts Council, Inc., a non-profit corporation incorporated
under the laws of the State of Texas (the "GDAC").
WHEREAS, TEx. TAx CODE §351.002 authorizes CITY to levy by ordinance 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 tax in the city of Denton of seven percent (7%); 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, GDAC is well equipped to perform those activities; and
WHEREAS, TEx. TAx CODE §351.101(c) authorizes CITY to delegate by contract with
GDAC; 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 GDAC agree and contract as follows:
I. HOTEL TAX REVENUE PAYIViENT
1.1 Consideration. For and in consideration of the activities to be performed by GDAC under
this Agreement, CITY agrees to pay to GDAC a portion of the hotel tax revenue collected by CITY
at the rates and in the manner specified herein (such payments by CITY to GDAC 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.
GDAC HOT Funds, PY2022 - Page 1
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(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 30th,
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 GDAC an amount of money in each contract year
equal to the lesser amount of. Five and Eighty Hundredths percent (5.80%) of the annual base
payment amount, or the fixed contract amount of One Hundred Fifty Thousand and Twenty -Six
Dollars ($150,026). 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 fixed contract amount or the unpaid remainder of
5.80% 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 determined by the hotel tax revenue collected.
(b) Each quarterly payment shall be paid upon receipt of the required reports, and after
the 25' 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 GDAC.
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(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.
II. USE OF HOTEL TAX REVENUE
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' of that year shall be
refunded to CITY within thirty (30) 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 TEx. TAx CODE §351.10l(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(f) 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 JM2.1 and 2.2 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.
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lI 1. RECORDKEEPING AND REPORTING REQUIREMENTS
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 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.
(c) Upon the application or consent of GDAC, the City Manager or 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',I1.2(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 shall maintain any hotel tax 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. GOVT 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
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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 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.
IV. TERM AND TERMINATION
4.1 Term. The term of this Agreement shall commence on January 1, 2022 and terminate at
midnight on January 31, 2023. However, the program period shall commence on January 1, 2022
and terminate at midnight on December 31, 2022. 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 party 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 11112.1 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 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 notification, a short-term budget of probable
expenditures for the remaining sixty (60) day period between termination notification and
contract 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
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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 11";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 bankruptcy, 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 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 I'll 1.3 hereof.
4.4 Might 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 11;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.
V. GENERAL PROVISIONS
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 12.1 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 maintenance, 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 Agreement and not as an officer, agent, servant, or employee of
CITY. GDAC shall have exclusive control of its operations and performance of services hereunder,
and such persons, entities, or organizations performing the same, and GDAC shall be solely
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responsible for the acts and omissions of its directors, officers, employees, agents, and
subcontractors. GDAC shall not be considered a partner or joint venturer with CITY, nor shall
GDAC be considered, nor in any manner hold itself out as, an agent or official representative of
CITY.
5.3 Indemnification. GDAC 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 GDAC 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 GDAC, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS,
LICENSEES AND INVITEES.
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, 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 GDAC
City Manager Executive Director
CITY OF DENTON GREATER DENTON ARTS COUNCIL,
215 E. McKinney INC.
Denton, TX 76201 400 E. Hickory
Denton, TX 76201
5.6 Inuremient. 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 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.
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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. $500,000 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 14th day of December , 2021.
ATTEST:
DocuSiigpgned by:
to" PZ"
By 1G5GARC5F175dU4
ROSA RIOS,
CITY SECRETARY
THE CITY OF DENTON, TEXAS
DocuSigned by:
S� H
By:
SARA HENSLEY,
INTERIM CITY MANAGER
APPROVED AS TO LEGAL FORM:
By:
MACK REINWAND,
CITY ATTORNEY
GDAC HOT Funds, PY2022 - Page 8
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THIS AGREEMENT HAS BEEN
BOTH REVIEWED AND APPROVED
as to financial and operational obligations
and business terms.
L�ss�
DuSigned by:
04__ Cassandra Ogden
SIGNATURE PRINTED NAME
Director of Finance
TITLE
Finance
DEPARTMENT
GREATER DENTON ARTS COUNCIL, INC.
�Do�c`uSigned by:
L
ua'i46fk ,V �D�t,In,S W
R56FEAFBAR5FdC7.
Chairman/Director
Exhibit A
GDAC HOT Funds, PY2022 - Page 9
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Greater Denton Arts Council
Budget 2022
Advertising
Website Partial Salary
Area Arts Partnerships
Direct Promotion: Print, Internet, News/Mag
Convention Center
Facility Staff
Art
Executive Director Partial Salary
Administrative Staff Partial Salary
Exhibition Partial Salary
Exhibition & Programs
Office Supplies
$ 20,000
3,000
9,070
$ 32,070
$ 30,000
$ 30,000
6,000
25,000
21,956
5,000
$ 87,956
Total Budget $
GDAC HOT Funds, PY2022 - Page 10
150,026