2009-210ORDINANCE NO. 2009- VAN ORDINANCE APPROVING A FIFTH AMENDED AGREEMENT-GREATER DENTON
ARTS COUNCIL, TO THE AGREEMENT ORIGINALLY ENTERED INTO BY AND
BETWEEN THE CITY OF DENTON, TEXAS AND THE GREATER DENTON ARTS
COUNCIL, DATED OCTOBER 15, 1990; AUTHORIZING THE CITY MANAGER TO
EXECUTE THE FIFTH AMENDED AGREEMENT-GREATER DENTON ARTS COUNCIL;
APPROVING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING FOR AN
EFFECTIVE DATE (AUTHORIZED EXPENDITURE OF $93,000 FOR FY 2009-2010).
WHEREAS, the City Council of the City of Denton, Texas ("City") has determined that
it is in the best interests of the City of Denton to continue to support the arts in the community
and to provide public funds to the Greater Denton Arts Council ("GDAC"), for the benefit of
GDAC regarding the City's payment of an amount of money for GDAC's utility service,
janitorial service and maintenance in consideration of the valuable cultural and public services to
be furnished by the GDAC to the City; and
WHEREAS, this "Fifth Amended Agreement-Greater Denton Arts Council" (hereafter
the "Fifth Amended Agreement") makes provisions for simplifying and streamlining the
handling of payments made by the City for the benefit of GDAC and sets forth other terms,
provisions and conditions. The Fifth Amended Agreement supersedes the prior agreements
(hereafter the "Prior Agreement") by and between the City and the GDAC, beginning with the
agreement executed by and between the City and GDAC, dated October 15, 1990, and the other
subsequent amendments of that Prior Agreement that have been made and approved by this City
Council; together with the amendments now made in this Fifth Amended Agreement to Section
5, paragraphs 2 and 3, and Section 7 of the Lease Agreement by and between the City and Center
for Visual Arts, executed September 26, 2006, but effective as of September 1, 2006; and
WHEREAS, based upon the foregoing the City Council finds that it should execute the
"Fifth Amended Agreement-Greater Denton Arts Council;" and such Fifth Amended Agreement
is in the best interests of the City. NOW, THEREFOR,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The preamble to this ordinance is hereby incorporated herewith by
reference as a part of this ordinance.
SECTION 2. The City Council hereby approves the Fifth Amended Agreement-Greater
Denton Arts Council, to the Agreement heretofore dated October 15, 1990; said Fifth Amended
Agreement, by and between the City of Denton, Texas and the Greater Denton Arts Council is
attached hereto and incorporated herewith by reference; and the City Council authorizes the City
Manager to execute said Fifth Amended Agreement.
SECTION 3. The City Council authorizes the expenditure of funds in the manner and
amount as specified in the Fifth Amended Agreement.
SECTION 4. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the /5zday of , 2009.
.
1 C
f
MARK A.'BU bU HS~MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By: jv'~/u
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By:
PAGE 2
THE STATE OF TEXAS
COUNTY OF DENTON
FIFTH AMENDED AGREEMENT-GREATER DENTON ARTS COUNCIL
The City of Denton, Texas, a Texas municipal corporation (hereafter the "City") and the Greater
Denton Arts Council, a Texas not-for-profit corporation (hereafter the "GDAC") do hereby enter
into this Fifth Amended Agreement (hereafter the "Fifth Amend ment-GDAC"), and by presents:
PREAMBLE
A. On October 2, 1990, Ordinance No. 90-151 was approved by the City Council (hereafter
the "Council) which authorized the Mayor of Denton to execute the "Agreement
Between the City of Denton, Texas and the Greater Denton Arts Council" (hereafter the
"Agreement") on October 15, 1990 for a 25-year period, terminating September 30,
2015; and
B. On August 2, 1991, Ordinance No. 91-134 was approved by the Council which
authorized the City to amend the Agreement for the first time to provide for the
correction of Schedule "A" regarding the units of measurement and the annual
consumption of gas in the "First Amendment to Agreement Between the City of Denton,
Texas and the Greater Denton Arts Council" (hereafter the "First Amendment"); and
C. On January 21, 1997, Ordinance No. 97-023 was approved by the Council, which
authorizes the City in the "Second Amendment to Agreement Between the City of
Denton, Texas and the Greater Denton Arts Council" (hereafter the "Second
Amendment") to agree to changes in the maximum units in Schedule "A" to reflect
actual charges of the Campus Theatre; and
D. On September 5, 2000, Ordinance No. 2000-285 was.approved by the Council, which
authorized the City in the "Third Amendment to Agreement Between the City of
Denton.. Texas and the Greater Denton Arts Council" (hereafter the "Third
Amendment") to change the maximum units regarding Section A, relating to the level of
utility service consumption by GDAC and amending Schedule "A" and requiring the City
to review and reconcile the utility accounts; and
E. On July 19, 2005, Ordinance No. 2005-190 was approved by the Council and approved
the "Fourth Amendment to Agreement Between the City of Denton, Texas and the
Greater Denton Arts Council" (hereafter the "Fourth Amendment"), which agreement
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required changes in several procedures as to the Parties as well as changes to Schedule
"A", along with the City's agreement to pay on behalf of the GDAC the City drainage fee
and a change in the maintenance of GDAC facilities; and
F. City, as Lessor and the GDAC, as Lessee entered into a "Lease Agreement/CVA" on
September 26, 2006 (hereafter the "Lease Agreement") that provided for an extension
of the term of the City's twenty-five year lease originally entered into on September 1,
1981, to GDAC, by a period of an additional twenty-five years, until September 1, 2031,
pertaining to the Visual Arts Center of Denton, which real property is owned by the City,
such Lease Agreement commencing on September 1, 2006, for the rental of $1.00 per
year; said Lease Agreement also contained express provisions for janitorial services and
utility costs; and
G. Both the City and GDAC desire to simplify and streamline, to the extent possible, the
handling of all of the GDAC's utility bills at the Campus Theatre (hereafter the
"Campus") and CVA, and the payment provisions for maintenance and janitorial services
regarding the timing and method of City's payments; and
H. City staff has received direction from Council to proceed with amending the
existing agreements heretofore entered into by and between the City and GDAC
regarding the Campus and CVA; and
1. The City has proposed to provide a mutually agreed-upon fixed annual funding amount
for the Campus Theatre and CVA used by GDAC and to amend the previous Agreements
to improve the administration of funds as well as to reduce City and GDAC staff time
that is devoted to reconciling the GDAC utility, maintenance and janitorial accounts
under the existing agreements;
NOW THEREFORE, the City and GDAC for good and valuable consideration, and for the
benefit of community cultural and theatrical activities in the City of Denton, Texas; the
Parties do hereby AGREE to the following covenants, provisions and terms, that establish
this Fifth Amendment-GDAC, to wit:
1. This Fifth Amendment-GDAC shall supersede all prior provisions of the five (5)
previous Agreements [described in Preamble paragraphs A, B, C, D and E] and it
shall likewise replace those covenants in the "Lease Agreement/CVA," dated
September 1, 2006, referred to above in paragraphs Section 5, paragraphs 2 and 3
and Section 7, dealing with the subjects of utilities, maintenance and janitorial
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services. The contract provisions set forth below, shall be in lieu of and in
substitution for those documents and provisions set forth in the five (5) previous
Agreements and Section 5, paragraphs 2 and 3 and Section 7 in the "Lease
Agreement/CVA" that are referred to in this numbered paragraph.
2. The termination date of this Fifth Amendment-GDAC is agreed to be September 30,
2015 as stated in the original Campus Theatre Agreement dated October 15, 1990;
and August 31, 2031 as stated in the Center for the Visual Arts Lease Agreement
dated September 1, 2006, unless earlier terminated as provided for herein.
3. The Parties agree and understand that if the City is unable or not willing to
appropriate funds for subsequent fiscal years, in order to continue the funding
provided for in this Fifth Amendment-GDAC, the City may terminate this Fifth
Amendment-GDAC at the end of the then current fiscal year and it shall not be
obligated to make further payments under this Fifth Amendment-GDAC. The first
annual period regarding this Fifth Amendment-GDAC shall commence on October
1, 2009 and continue through September 30, 2010. The second annual period shall
commence on October 1, 2010 and continue through September 30, 2011. The
third and successive annual periods shall be in each succeeding year thereafter.
4. This Fifth Amendment-GDAC is intended to condense the City's prior separate
agreements with GDAC governing the Campus and the Center for Visual Arts
("CVA") into this one agreement. The GDAC agrees to deliver to the City, Director
of Finance, its Financial Statements and its Independent Auditor's Report for each
Fiscal Year of GDAC promptly when received from its Auditor, at the close of the
GDAC fiscal year.
5. The City shall provide a mutually agreed-upon fixed annual funding amount
commencing on October 1, 2009. This amount is fixed at the sum of $40,800 for
the Campus Theatre and $34,200 for CVA, per fiscal year, for the fiscal year
beginning on October 1, 2009. This amount is held by the City and the fund is to be
drawn down by City staff and used by City staff to pay GDAC's City-provided
utilities, such as drainage, electric, solid waste, water, and wastewater utilities for
the Campus Theatre and the Center for Visual Arts.
6. The City and GDAC agree that the additional sum of $5,000 for the Campus Theatre
and $10,000 for CVA is an appropriate amount to be spent annually on GDAC's
janitorial and maintenance services for its properties. This $15,000 amount is in
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addition to the $75,000 annual amount set forth in paragraph 5 above. The
$15,000 for maintenance and janitorial expenses will be paid to the GDAC by the
City on October 1 of the fiscal year, beginning October 1, 2009. GDAC shall then be
liable for paying all of its janitorial and maintenance expenses.
7. The City and GDAC agree that the additional sum of $3,000 shall be paid by the City
to GDAC in one lump-sum by October 1 of the fiscal year for the entire annual
funding amount. This amount includes $3,000 for GDAC's gas utilities regarding the
Campus Theatre, which are to be paid by GDAC to the vendor, ATMOS ENERGY.
The $3,000 paid annually to GDAC for these stated gas utilities is in addition to the
$75,000 and $15,000 amounts described above in paragraphs 5 and 6.
8. The City shall receive and timely pay each utility bill listed in paragraph 5 above,
when it receives same directly from the Customer Service Department of the City.
The utility bills shall be sent directly to the City of Denton, Director of Finance, 215
East McKinney Street, Denton, Texas 76201. GDAC will be sent an informational
"DO NOT PAY" bill so that it can maintain accurate balances of its annual account
with the City. The City shall pay only the annual amount of $40,800 for the Campus
Theatre and $34,200 for the CVA for the listed utilities set out in paragraph 5.
hereinabove. Provided however, once the annual amount of $40,800 for the
Campus Theatre and/or once the $34,200 annual amount for the CVA is exhausted
for the Fiscal Year, then the City shall cease to pay the utility bills for the entity or
entities exceeding the city utility payment amount established in this paragraph, for
that entity; then said City-provided utility bills for that entity or entities shall be the
sole responsibility of and shall be paid timely by GDAC.
9. If there are annual budgeted funds in the GDAC utility account provided for in
numbered paragraph 5. above, that prove to be in excess of the total utility bills
received for a Fiscal Year, then at the close of that Fiscal Year, the undistributed
funded amount remaining in GDAC's established accounts, shall be credited by the
City to GDAC, or distributed to GDAC, at GDAC's option, for the following fiscal year,
by written election delivered to the City of Denton, Director of Finance, within thirty
(30) days after the close of that Fiscal Year.
10. There will no longer be any requirements set for maximum annual usage (i.e.
kilowatt hours, gallons of water, etc.) regarding this Agreement. There are no other
utility services covered by this agreement other than for drainage, electric, gas, solid
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waste, water and wastewater utilities. The City does not furnish gas utilities, but has
agreed to a utility allocation as described in Paragraph 7 above.
11. The fixed annual funding account of $75,000 for City-provided utilities, established
by the City as set forth in numbered paragraph 5. above, may be re-considered by
the City Council provided that the total utility rates established by the City for those
annual utilities provided by the City of Denton, Texas (exclusive of gas utilities) have
increased in an amount of greater than 2% for the preceding Fiscal Year.
12. The fixed annual funding account of $75,000 for City-provided utilities, established
by the City as set forth in numbered paragraph 5. above, may be re-considered by
the City Council provided that the total utility rates established by the City for those
annual utilities provided by the City of Denton, Texas (exclusive of gas utilities) have
decreased in an amount greater than 2% for the preceding Fiscal Year.
13. The fixed annual funding accounts established by the City in paragraph numbers 5, 6
and 7 above, may be re-considered by the City Council provided that the GDAC
either sells, assigns or otherwise disposes of a GDAC location to another entity, or
leases a GDAC location to another entity, or a location of GDAC is no longer used for
the cultural and theatrical purposes that are identified in previous documents
entered into by and between the GDAC and the City.
14. GDAC is strongly encouraged to implement energy savings plans, and may fully
utilize Denton Municipal Utilities community services, such as the Green-Sense
Program, Energy Audits, and other resources in order to economize and more
efficiently regulate its utility use.
15. The City may enter the Campus Theatre and Center for Visual Arts facilities at any
time City staff provides advance notice to the designated representative at GDAC.
16. All of the covenants, provisions and terms contained within the original Agreement
regarding the Campus Theatre, dated October 2, 1990, which are set forth in Articles
IV., V., VI., VII. and Vlll. therein are incorporated by reference herein; and the Lease
Agreement for the Center for Visual Arts, dated September 1, 2006, shall survive and
shall be become a part of this "Fifth Amendment-GDAC" by and between the City of
Denton, Texas and the Greater Denton Arts Council.
'`~/C
SIGNED this the -~day of &OYM,46L
2009.
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"CITY"
ATTESTED:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
AN ITA BURGESS, CITY ATTO EY
By: /i - ,
THE CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By:
",)$c
GEORGE C. CAMPBELL, City Manager
1
"G DAC"
GREATER DENTON ARTS COUNCIL
A Texas Not-For-Profit Corporation
By:
Its
ATTEST:
By:
APPROVED AS TO LEGAL FORM:
6
By:
Its Attorney