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2005-362FILE REFERENCE FORM 2005-362 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials Change Order to Service Contract [original is attached] 03/07/06 J R S:\Our Documents\Ordinances\05\Denton Festival Foundation-Jazz Fest 2006.doc ORDINANCE NO. ; )e) 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 2006 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 2006 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 by 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 0/1- day of ) , 2005. ~fuj~ A6,~_ EULINE BROCK, MAYOR ATTEST: J ENNIFE EDWIN M. BY: CITY SECRETARY L FORM: YATTORNEY AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON FESTIVAL FOUNDATION THIS AGREEMENT is made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Festival Foundation, Inc. a legal entity incorporated under the laws of the State of Texas (the "FOUNDATION"): WHEREAS, on September 20s', 2005 the CITY and FOUNDATION entered into that certain agreement for the 2006 calendar year to provide for services related to the promotion of tourism which was funded with hotel and motel tax revenue (the "Hot Funds Agreement'); and WHEREAS, a main purpose of the Hot Funds Agreement was to help implement the annual Denton Arts and Jazz Festival (the "Festival") held in April of 2006; and WHEREAS, the Foundation has requested supplemental funding for the 2006 Festival in addition to annual request for HOT funds; and WHEREAS, the Festival and this agreement serve an important public purpose in promoting tourism and economic development in Denton; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, the CITY and the FOUNDATION agree and contract as follows: I. PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by the FOUNDATION under this Agreement, the CITY agrees to pay to the FOUNDATION the sum of $1,500.00 for the cost of headlines and entertainment fees. Payment of the funds shall be made upon the effective date of this Agreement. The funds provided herein are not Hotel Tax Revenue funds but are general funds of the CITY. H. USE OF REVENUE 2.1 Use of Funds. For and in consideration of the payment by the CITY to the FOUNDATION of the agreed funds the FOUNDATION agrees to use such funds only for the purpose stated in Section 1.1 above. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Financial Records. The FOUNDATION shall maintain complete and accurate financial records of each expenditure of the funds made by the FOUNDATION. Upon reasonably advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records available for inspection and review by the party making the request. FOUNDATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEx. GOVT CODE, ch. 552, as hereafter amended. 3.2 Notice of Meetings. The FOUNDATION shall give the City Manager of the CITY reasonable advance written notice of the time and place of all meetings of FOUNDATION's Board of Directors, as well as any other meeting of any constituency of the FOUNDATION at which this Agreement or any matter the subject of this Agreement shall be considered. This provision shall not be deemed to require the FOUNDATION to give notice of any executive session of the Executive Committee of the FOUNDATION. IV. TERM 4.1 Term. The term of this Agreement shall commence on the Effective Date and terminate upon completion of activities and expenditures associated with the 2006 Festival. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in Us Agreement shall prohibit, nor be construed to prohibit, the agreement by the FOUNDATION with another private entity, person, or organization for the performance of those services. In the event that the FOUNDATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, the FOUNDATION 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, 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. The FOUNDATION 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 the CITY. The FOUNDATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the FOUNDATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The FOUNDATION shall not be considered a partner or joint venturer with the CITY, nor shall the FOUNDATION be considered nor in any manner hold itself out as an agent or official representative of the CITY. 5.3 Indemnification. 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 HIND 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. 5.4 Assignment. The FOUNDATION shall not assign this Agreement without first obtaining the written consent of the CITY. Page 2 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 City Manager City of Denton 215 E. McKinney Denton, TX 76201 FOUNDATION Denton Festival Foundation, Inc. Carol Short Festival Coordinator P.O. Box 2104 Denton, Texas 76202-2104 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 the CITY and the FOUNDATION 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. 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. Page 3 5.12 Insurance. The FOUNDATION shall 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. Statutory Workers' Compensation and Employers' Liability ($100,0001$500,0001$100,000) The 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 the CITY. EXECUTED to be effective the day of 2005 (the "Effective Date"). THE CITY OF DENTON, TEXA.Sl By: &&W , / - EULINE BROCK, MAYOR ATTEST: By ERS, *CITE kARY APPROVED AS T LEGAL FORM: By: EDWIN M. SNYDER CITY ATTORNEY DENTON FESTIVAL FOUNDATION, INC. By: 9" _ Chairman/Director SAOur Documents\Contracts\05\Denton Festival Foundation-Arts & Jam Fest2006.dm Page 4 W CHANGE ORDER TO SERVICE CONTRACT The Service Contract between the City of Denton, Texas and Denton Festival Foundation, Inc., dated December 6, 2005 (the "Service Contract") and approved by Ordinance No. 2005-362 is hereby changed to increase City funding by the amount of $500.00 (the "Change Order Funds"). The Change Order Funds shall be used for the same public purposes and administered in the same manner specified in the Service Contract. Howard Martin City Manager Dated: 3. 7-06 AGREED: Denton Festival Foundation, Inc. By: 0"~aklel Carol Short Chairman/Director Date: -'31":55166 Legal Approval: Name: Title: Date: