2005-276
S:\Our Documcnts\Ordinances\05\HOT\fcstival foundation ord.doc
ORDINANCE NO. 2005-2 'lip
AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT
BETWEEN THE CITY OF DENTON AND THE DENTON FESTIVAL FOUNDATION FOR
THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN
EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That the Mayor is hereby authorized to execute an agreement between the
City of Denton and the Denton Festival Foundation 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 II. That this ordinance shall become effective immediately upon its passage
and approval.
PASSED AND APPROVED this the
e9JlJ-tL day of c;f.l.jllrALilw
,2005.
~ /hoc^--
EULlNE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: ~6dllzuiJflZ"t2dt.
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER-,8ITY-A::5
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BY,,- -______
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AGREEMENT BETWEEN THE CITY OF DENTON AND
THE DENTON FESTIVAL FOUND A TION (PY2006)
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 Denton Festival Foundation, Inc. a legal entity incorporated under the laws of
the State of Texas (the "FOUNDATION"):
WHEREAS, TEX. TAX CODE 9351.002 authorizes the 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, the 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 935I.lOI(a) authorizes the 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, the FOUNDATION is well equipped to perform those activities; and
WHEREAS, TEx. TAX CODE 935I.lOI(c) authorizes the CITY to delegate by contract with
the FOUNDATION, 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, the CITY and the FOUNDATION agree and contract as follows:
I. HOTEL TAX REVENUE 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 a portion of
the hotel tax revenue collected by the CITY at the rates and in the marmer specified herein (such
payments by the CITY to the FOUNDATION sometimes herein referred to as the "agreed
payments" or "hotel tax funds").
1.2 Amount of Payments.
(a)
mearungs:
As used in this Agreement, the following terms shall have the following specific
(i) The term "hotel tax revenue" shall mean the gross monies collected and
received by the 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 35 I .002 and City
Festival Foundation HOT Funding PY2006 - Page 1
Ordinance. Hotel tax revenue will include penalty and interest related to the late
payments of the tax revenue by the taxpayer.
(ii) The term "Collection period" will mean the collection period for the CITY's
fiscal year. It will include hotel tax revenue due to the 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 the 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 attomeys or agents not in the regular employ of tl1e 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 Afeement is in force. Contract quarters will end on March 31st, June 30th,
September 30t , and December 31 st of each contract year.
(b) In return for satisfactory performance of the activities set forth in this Agreement
and all attachments hereto, the CITY shall pay to FOUNDATION an amount of money in each
contract year equal to the lesser amount of Six and Ninety-Five One Hundredths percent (6.95%)
of the annual base payment amount or the fixed contract amount of Seventy Five Thousand
Dollars ($75,000). This amount will be divided into quarterly payments equal to 25% of tl1e
annual fixed contract amount, unless the 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
6.95% of the base payment amount, whichever is less. Each quarterly payment is subject to
receipt of unused funds from the prior contract period and the receipt of the required quarterly
reports.
1.3 Dates of Payments.
(a) The term "quarterly payments" shall mean payments by the CITY to the
FOUNDATION of those amounts specified in '11.2, 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
25th day following the last day of the contract quarter. If the 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. The CITY may withhold the quarterly payment(s) until the
appropriate reports are received and approved, which approval shall not be unreasonably withheld.
Festival Foundation HOT Funding PY2006 - Page 2
1.4 Other limitations regarding consideration.
(a) The funding of this project in no way conunits the CITY to future funding of this
program beyond the current contract period. Any future funding is solely the responsibility of the
FOUNDATION.
(b) It is expressly understood that this contract in no way obligates the General Fund or any
other monies or credits of the CITY.
(c) CITY may withhold further allocations if CITY determines that FOUNDATION'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 the CITY to the FOUNDATION
of the agreed payments of hotel tax funds specified above, the FOUNDATION agrees to use such
hotel tax funds only for advertising and conducting soiicitations and promotional programs to attract
tourists and convention delegates or registrants to the municipality or its vicinity; as well as the
promotion of tourism through the encouragement, 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 arts forms, as authorized by TEX. TAX CODE 935I.I0I(a).
Funds for any calendar year which are unused by midnight December 3 1st of that year shall be
refunded to CITY within sixty (60) days.
2.2 Administrative Costs. The hotel tax funds received from the CITY by the FOUNDATION
may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other
administrative costs allowed by TEX. TAX CODE 351.101(1), only if each are directly attributable
to work on programs which promote tourism and the hotel and convention industry, and if each
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) That portion of total administrative costs of the FOUNDATION for which hotel tax
funds may be used shall not exceed that portion of the FOUNDATION's administrative costs
actually incurred in conducting the activities specified in '112.1 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 or the perfonnance of the person's job in an efficient and
professional marmer.
Festival Foundation HOT Funding PY2006 - Page 3
III. RECORDKEEPING AND REPORTING REQUIREMENTS
3.1 Budget.
(a) The FOUNDATION shall prepare and submit to the City Manager of the CITY an
arumal budget (see Exhibit "A") as approved by the City Council for each calendar year, for such
operations of the FOUNDATION funded by hotel tax revenues. This budget shall specifically
identify proposed expenditures of hotel tax funds by the FOUNDATION. In other words, the 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. The CITY shall not pay to the
FOUNDATION 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. Failure to submit an
armual budget may be considered a breach of contract, and if not remedied is considered grounds for
termination ofthis Agreement as stated in paragraph 4.2.
(b) The FOUNDATION acknowledges that the approval of such budget by the Denton
City Council creates a fiduciary duty in the FOUNDATION with respect to the hotel tax funds paid
by the CITY to the FOUNDATION under this Agreement. The FOUNDATION shall expend hotel
tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE
9351.10I(a), and in the budget as approved by the CITY.
3.2 Separate Acconnts. The FOUNDATION shall maintain any hotel tax funds paid to the
FOUNDATION by the CITY in a separate account or with segregated fund accounting, such that
any reasonable person can review the source of expenditures of tax funds.
3.3 Financial Records. The FOUNDATION shall maintain complete and accurate financial
records of each expenditure of the hotel tax funds made by the FOUNDATION. These funds shall
be classified as restricted funds for audited financial purposes, and may not be used for contracted
services, including, but not limited to, auditing fees and attorney fees. Upon reasonable 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. GOy'T CODE,
ch. 552, as hereafter amended.
3.4 Quarterly Reports. After initial receipt of hotel tax funds and within thirty days after the
end of every contract quarter, FOUNDATION shall furnish to CITY: (I) 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 9351.10l(c), and (3) a copy of all financial records (e.g.,
copies of front and back cleared checks or bank statements, and other relevant documentation).
Both the financial and expenditure reports will be in a form either determined or approved by the
City Manager or designate. The FOUNDATION shall respond promptly to any request from the
City Manager of the CITY, or designate, for additional information relating to the activities
performed under this Agreement.
Festival Foundation HOT Funding PY2006 - Page 4
~ -.- -
3.5 Notice of Meetings. The FOUNDATION shall give the City Manager ofthe CITY, or his
designate, 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 AND TERMINATION
4.1 Term. The term of tills Agreement shall commence on January 1, 2006 and terminate at
midnight on January 31, 2007. However, the program period shall commence on January 1, 2006
and terminate at midnight on December 31, 2006. Only those expenditures authorized by Chapter
351 of the Texas Tax Code and the program guidelines, which are actually incurred during l11e
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 ofthe 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 ternlinated by eil11er party pursuant to Se~tion 4.2(a),
the CITY agrees to reimburse the FOUNDATION for any contractual obligations of the
FOUNDATION undertaken by the FOUNDATION in satisfactory performance of those
activities specified in '11'112.1 and 2.2 above and that were approved by the Council through the
budget, as noted in'll3.1. This reimbursement is conditioned upon such contractual obligations
having been incurred and entered into in the good faith performance of those services
contemplated in '11'112.1 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 the CITY to reimburse the FOUNDATION or to assume
the performance of any contractual obligations of the FOUNDATION for or under any contract
entered into by the FOUNDATION as contemplated herein shall not exceed 66 2/3% of the
current quarterly payment.
(c) Further, upon termination pursuant to '114.2(a), the FOUNDATION will provide the
CITY: I) Within 10 business days from the termination notification, a short-term budget of
probable expenditures for the remaining 60 day period between termination notification and
contract termination. This budget will be presented to Council for approval within 10 business
days after receipt by CITY. If formal approval is not given within 10 business days and 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 30 days, a full accounting of all expenditures not previously audited by the
City; 3) Within 5 business days of a request from the 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. The FOUNDATION will be obligated to return any unused
funds or funds determined to be used improperly. Any use of remaining funds by the
Festival Foundation HOT Funding PY2006 - Page 5
_ ~- ~ _ --- ---- --,
FOUNDATION after notification of ternlination 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.
4.3 Automatic Termination. This Agreement shall automatically terminate upon the
occurrence of any of the following events:
(a) The tem1ination of the legal existence of the FOUNDATION;
(b) The insolvency of the FOUNDATION, the filing of a petition in bankruptcy, either
voluntarily or involuntarily, or an assignment by the FOUNDATION for the benefit of creditors;
(c) The continuation of a breach of any of the tenns or conditions of this Agreement by
either the CITY or the FOUNDATION 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 the FOUNDATION 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 Section 1.3 hereof.
4.4 Right 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 tenrunated pursuant to '11'114.3 or 4.4, FOUNDATION
agrees to refund any and all unused funds, or funds determined by the CITY to have been used
improperly, within 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 the FOUNDATION with another private entity, person,
or organization for the performance of those services described in '\2. I above. In the event that the
FOUNDATION enters into any arrangement, contractual or othelWise, 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 and
to TEX. TAX CODE ch. 35 I, 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 perforn1ed 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
Festival Foundation HOT Funding PY2006 - Page 6
_ ._ ,.. ____.~,.,___'_..__m_~ ~ _
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
marmer 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 KIND OR CHARACTER, ARISING OUT OF OR
IN CONNECTION WITH THE PERFORMANCE BY THE FOUNDATION 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 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.
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
FOUNDATION
City Manager
City of Denton
215 E. McKinney
Denton, TX 76201
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 tellliS and conditions of this Agreement shall prevail
notwifustanding any variance in this Agreement from the terms and conditions of any other
document relating to this transaction or these transactions.
Festival Foundation HOT Funding PY2006 - Page 7
-- ~-" --- ,-_,,_--,'++_"~'.'- - .------.--.. -... - -,.-..-,-....----.-.-...,.. - _.. -.. ...__. ---~_.__. ---.-..-. ....-....-.---.---- -. '---'---"-
5.9 Duplicate Originals. This Agreement is exec~ted in duplicate originals.
5.1 0 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 ofthe 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 shaH 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. The FOUNDATION shaH provide insurance as foHows:
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
($100,000/$500,000/$100,000)
3. $250,000 Liquor/Dram Shop Liability for any event occurrmg on City-owned
property where aicohol will be provided or served
CITY must be named as an additional insured on aH policies (except Workers' Compensation), and
proof of coverage shall be submitted prior to any payment by the CITY.
EXECUTED this~ day of \)i~tdJjI,i) ,2005.
THE CITY OF DENTON, TEXAS
By:
C~ tAvJc
EULINEBROCK,MAYOR
ATTEST:
APPROVED AS_T<:H:EGA'I:-
BY:~llkl2tdvoAdt~1 ad;
J NNIFER WALTERS,
CITY SECRETARY
EDWIN M. S
R, CITY ATTORNEY
IV AL FOUNDATION, INC.
By:
Festival Foundation HOT Funding PY2006 - Page 8
ChalrnlaIiiD)reclor'- -.,
ATTEST:
APPROVED AS TO LEGAL FORM:
By:
Secretary
By:
F:\'ih~\LGL\OurDocum:n15\ContrnclS\03\HOT\FcSlival Foundallon.doc
Festival Foundation HOT Funding PY2006 - Page 9
Exhibit A
Denton Festival Foundation, Inc
Denton Arts & Jazz Festival
ADVERTISING
Newspaper
Magazines
Commercials/Photography
Brochures
Tabloids
$
5,000
10,000
8,000
6,000
6,000
$ 35,000
ART
Musicians
$
40,000
TOTAL BUDGET $
75,000