2010-001
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ORDINANCE NO. 2010-001
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN
THE CITY OF DENTON, TEXAS AND THE DENTON FESTIVAL FOUNDATION FOR
SUPPLEMENTAL FUNDING FOR THE ARTS AND JAZZ COMMITTEE FOR THE 2010
DENTON ARTS AND JAZZ FESTIVAL; PROVIDING FOR THE EXPENDITURE OF FUNDS
THEREFOR; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Denton Festival Foundation (the "Organization") provides for the annual
Denton Arts and Jazz Festival including the 2010 Festival (the "Program"); and
WHEREAS, the City Council of the City of Denton hereby finds that the Program and the
agreement between the City and the Organization attached hereto and made a part hereof by
reference (the "Agreement") serve a municipal and public purpose including the promotion of
tourism and economic development and the Agreement 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 ty
reference into the body of this Ordinance as if fully set forth herein.
SECTION 2. The City Manager, or his designee, is hereby authorized to execute the
Agreement and to carry out the duties and responsibilities of the City under the Agreement, including
the expenditure of funds as provided in the Agreement.
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of , 2010.
r..
MARK A. BURR GHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:~•.r
APP VED A TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY. ! c; c
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SERVICE AGREEMENT
BETWEEN THE CITY OF DENTON, TEXAS AND THE
DENTON FESTIVAL FOUNDATION
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 the Denton Festival Foundation, a
Texas Non-Profit Corporation, hereinafter referred to as "Foundation":
WHEREAS, City has determined that the proposal for services merits assistance and can
provide needed services to citizens of City 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:
1. SCOPE OF SERVICES
Foundation shall in a satisfactory and proper manner perform the following tasks, for which
the monies provided by City may be used:
The funds being provided shall be used by the Foundation to provide financial assistance for
funding of entertainment during the Arts and Jazz Festival.
II. OBLIGATIONS OF FOUNDATION
In consideration of the receipt of funds from City, Foundation agrees to the following terms
and conditions:
A. One Thousand, Seven Hundred Fifty Dollars and no/100 ($1,750.00) shall be paid to
Foundation by City to be utilized for the purposes set forth in Article I.
B. Foundation will maintain adequate records to establish that the City funds are used for
the purposes authorized by this Agreement.
C. Foundation will permit authorized officials of City to review its books at any time.
D. Upon request, Foundation will provide to City its By Laws and any of its rules and
regulations that may be relevant to this Agreement.
E. Foundation will not enter into any contracts that would encumber City funds for a
period that would extend beyond the term of this Agreement.
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F. Foundation will appoint a representative who will be available to meet with City
officials when requested.
G. Foundation will submit to City copies of yearend audited financial statements.
III. TEME 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 upon the
completion of the 2010 Festival, unless the contract is sooner terminated under Section VII
"Suspension or Termination".
IV. PAYMENTS
A. PAYMENTS To FOUNDATION. City shall pay to Foundation the sum specified in Article
II after the effective date of this Agreement.
B. EXCESS PAYMENT. Foundation 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 Foundation; 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
Foundation agrees to participate in an implementation and maintenance system whereby the
services can be continuously monitored. Foundation agrees to make available its financial records
for review by City at City's discretion. In addition, Foundation agrees to provide City the following
data and reports, or copies thereof:
A. All external or internal audits. Foundation 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.
D. To comply with this section, Foundation agrees to maintain records that will provide
accurate, current, separate, and complete disclosure of the status of funds received and the services
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performed under this Agreement. Foundation's record system shall contain sufficient documentation
to provide in detail full support and justification for each expenditure. Foundation 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 Foundation of
responsibility for retaining accurate and current records that clearly reflect the level and benefit of
services provided under this Agreement.
VI. DIRECTORS' MEETINGS
During the term of this Agreement, Foundation shall deliver to City copies of all notices of
meetings of its Board of Directors, setting forth the time and place thereof wherein this program is a
part of the subject matter of the meeting. Such notice shall be delivered to City in a timely manner to
give adequate notice, and shall include an agenda and a brief description of the matters to be
discussed. Foundation understands and agrees that City's representatives shall be afforded access to
all meetings of its Board of Directors.
Minutes of all meetings of Foundation's 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 Foundation violates any covenants,
agreements, or guarantees of this Agreement, the Foundation's insolvency or filing of bankruptcy,
dissolution, or receivership, or the Foundation's violation of any law or regulation to which it is
bound under the terms of this Agreement. The City may terminate this Agreement for other reasons
not specifically enumerated in this paragraph.
VIII. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS
A. Foundation shall comply with all applicable equal employment opportunity and
affirmative action laws or regulations.
B. Foundation 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 Foundation's noncompliance with the non-discrimination requirements,
the Agreement may be canceled, terminated, or suspended in whole or in part, and Foundation may
be barred from further contracts with City.
IX. WARRANTIES
Foundation represents and warrants that:
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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 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 Foundation 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
Foundation.
C. No litigation or legal proceedings are presently pending or threatened against
Foundation.
D. None of the provisions herein contravenes or is in conflict with the authority under
which Foundation is doing business or with the provisions of any existing indenture or agreement of
Foundation.
E. Foundation 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 Foundation 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 Foundation 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. Foundation shall notify City of any changes in personnel or governing board
composition.
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XI. INDEMNIFICATION
To the extent authorized by law, 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 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 Foundation, its officers, employees, agents,
subcontractors, licensees and invitees.
XH. CONFLICT OF INTEREST
A. Foundation 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. Foundation 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. Foundation 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.
X1H. 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 Foundation or City, as the case may be, at the
following addresses:
CITY FOUNDATION
City of Denton, Texas Denton Festival Foundation
Attn: City-Manager Carol Short
215 E. McKinney Festival Coordinator
Denton, TX 76201 P.O. Box 2104
Fax No. 940.349.8591 Denton, Texas 76202-2104
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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. Foundation 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 Foundation 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 consti-
tute 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 Foundation. 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. ,
. PASSED AND APPROVED this the j day of , 2010.
CITY OF DENTON
GEO GE C. CAMPBELL, (Try MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY-)40'
1)0
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APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
r•.
i BY:
FOUNDATION
BY: ga"i't
CAROL SHORT
FESTIVAL COORDINATOR
ATTEST:
BY:
SECRETARY
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