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2005-292 S:\Our Documents\Ordinances\05\Dcnton Arts Council Ordinanc~.doc ORDINANCE NO. J1)fl'f - f), 90 AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE GREATER DENTON ARTS COUNCIL; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Greater Denton Arts Council has requested funding for the development and marketing of exhibitions at the fall festival (the "Program") and the City of Denton desires to enter into an agreement to provide for the continuance of 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 Greater Denton Arts Council. attached hereto and made a part hereof by reference (the "Agreement") will promote tourism and economic development within the City, serve a municipal and public purpose, ahd is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. 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 ADd..) day of ~;;;;m/1fJJ ,2005. ~~cL EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY i BY: Qml!iel1JuJLLffJt/ ad;. APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY ~ BY: Page 2 S:\Our Documents\Contracts\05\Greater Denton Arts Counci1.doc SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE GREATER DENTON THE ARTS COUNCIL 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 Greater Denton The Arts Council, a Texas Non-Profit Corporation, hereinafter referred to as "The Arts Council": 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 as it will promote tourism and economic development within the City, among other things; NOW, THEREFORE, the parties hereto mutually agree as follows: L SCOPE OF SERVICES The Arts Council 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 Arts Council for the development and marketing of the following exhibitions at the fall festival, "Joseph Patrick," "Mexican Markets and Gardens," and the "Denton Handweavers Guild". II. OBLIGA nONS OF THE ARTS COUNCIL In consideration ofthe receipt of funds from City, The Arts Council agrees to the following terms and conditions: A. One Hundred Dollars and noll 00 ($100.00) shall be paid to The Arts Council by City to be utilized for the purposes set forth in Article I. B. The Arts Council will establish, operate, and maintain an account system for this program that will allow for a tracing of funds and a review of the financial status of the program. C. The Arts Council will permit authorized officials of City to review its books at any time. D. The Arts Council will reduce to writing all of its rules, regulations, and policies and file a copy with the City along with any amendments, additions, or revisions whenever adopted. E. The Arts Council will not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. F. The Arts Council will appoint a representative who will be available to meet with City officials when requested. G. The Arts Council will submit to City copies of year-end audited financial statements. IlL TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frame: September 17, 2005 through October 26,2005, unless the contract is sooner terminated under Section VII "Suspension or Termination". IV. PAYMENTS A. PAYMENTS TO THE ARTS COUNCIL City shall pay to The Arts Council the sum specified in Article II after the effective date of this Agreement. B. EXCESS PAYMENT. The Arts Council 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 The Arts Council; 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 The Arts Council agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. The Arts Council agrees to make available its financial records for review by City at City's discretion. In addition, The Arts Council agrees to provide City the following data and reports, or copies thereof: < A. All external or internal audits. The Arts Council 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, The Arts Council agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. The Arts' Council's record system shall contain sufficient Page 2 of7 documentation to provide in detail full support and justification for each expenditure. The Arts Council 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 The Arts Council 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 ofthis Agreement, The Arts Council 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 ofthe 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. The Arts Council understands and agrees that City's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of The Arts Council's governing body shall be available to City within ten (10) working days of approvaL VII. TERMINA nON The City may terminate this Agreement for cause if The Arts Council violates any covenants, agreements, or guarantees ofthis Agreement, T~e Arts Council's insolvency or filing of bankruptcy, dissolution, or receivership, or The Arts Council'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. EOUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. The Arts Council shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. The Arts Council 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 The Arts Council's non-compliance with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and The Arts Council may be barred from further contracts with City. Page 3 of7 IX. WARRANTIES The Arts Council represents and warrants that: 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 The Arts Council 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 The Arts CounciL C. No litigation or legal proceedings are presently pending or threatened against The Arts CounciL D. None of the provisions herein contravenes or is in conflict with the authority under which The Arts Council is doing business or with the provisions of any existing indenture or agreement of The Arts CounciL E. The Arts Council 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 ofthe assets of The Arts Council 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 The Arts Council 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. Page 4 of7 C. The Arts Council shall notify City of any changes in personnel or governing board composition. XL INDEMNIFICATION To the extent authorized by law, The Arts Council 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 Arts Councilor 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 The Arts Council, its officers, employees, agents, subcontractors, licensees and invitees. XII. CONFLICT OF INTEREST A. The Arts Council 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. The Arts Council 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. The Arts Council 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. XIIL 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 The Arts Councilor City, as the case may be, at the following addresses: Page 5 of? CITY GREATER DENTON ARTS COUNCIL C.ha.lf'.;>n+@ Margaret CRaI68Rt, Executive Director Greater Denton Arts Council 207 South Bell Denton, TX 76201 Fax No. 940.566.1486 City of Denton, Texas Attn: City Manager 215 E. McKinney Denton, TX 76201 Fax No. 940.349.8591 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. The Arts Council 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 The Arts Council hereunder, or any other act or failure of City to insist in anyone or more instances upon the terms and conditions ofthis Agreement constitute 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 The Arts CounciL 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 teferenced 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. Page 6 of7 IN WITNESS WHEREOF, ~arties do hereby affix their signatures and enter into this Agreement as ofthe,~Y.L, day 0 ~.fl.,hr~,g005. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: CjaJllltdvndbYL/uAi!;. APPROVED AS TO LEGAL FORM: ::~~TTORNEY ATTEST: BY: SECRETARY Page 7 of7 CITY OF DENTON, TEXAS BYC~~~ EULINE BROCK, MAYOR GREATER DENTON ARTS COUNCIL ~~~f~,k MARGARE CIIALSEH'f C-AAl-PAl-lr ..