2004-265ORDINANCE NO. ~q ~/~ .~-,"~ ~'
AN ORDINANCE AUTHORIZiNG THE MAYOR TO EXECUTE AN AGREEMENT
BETWEEN THE CITY OF DENTON AND THE DENTON CHAMBER OF COMMERCE
(CONVENTION AND VISITOR BUREAU) FOR THE PAYMENT AND USE OF HOTEL
TAX REVENUE; AND PROVIDiNG AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. That the Mayor is hereby authorized to execute an agreement between the
City of Denton and the Denton Chamber of Commerce (Convention and Visitor Bureau) 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 2.
and approval.
That this ordinance shall become effective immediately upon its passage
PASSED AND APPROVED this the ~/t ~ day
EULINE BROCK, MAYOR
,2004.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CHAMBER
OF COMMERCE (CONVENTION & VISITOR BUREAU) (CY- 2005) 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 Chamber of Commerce (Convention & Visitor's Bureau), a non-
profit corporation incorporated under the laws of the State of Texas (the "BUREAU"):
WHEREAS, TEX. T^x CODE §351.002 authorizes 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, 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. T^x CODE §351.101(a) authorizes 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, BUREAU is well equipped to perform those activities through its Denton
Convention and Visitor's Bureau; and
WHEREAS, TEX. T^x CODE §351.101(c) authorizes CITY to delegate by contract with
BUREAU, as an independent entity, the management and supervision of programs and activities of
the type described hereinabove funded with revenue fi.om the municipal hotel occupancy tax;
NOW, THEREFORE, in consideration of the performance of the mutual covenants and
promises contained herein, CITY and BUREAU agree and contract as follows:
I. HOTEL TAX REVENUE PAYMENT
1.1 Consideration. For and in consideration of the activities to be performed by BUREAU
under this Agreement, CITY agrees to pay to BUREAU a portion of the hotel tax revenue collected
by CITY at the rates and in the manner specified herein (such payments by CITY to BUREAU
sometimes herein referred to as the "agreed payments" or "hotel tax funds'').
1.2 Amount of Payments.
(a)
meanings:
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 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 §351.002 and City
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 CITY's
fiscal year. It will include hotel tax revenue due to 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 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 attorneys or agents not in the regular employ of CITY for
which attorneys or agents effect compliance or collection of the hotel tax fi.om 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 Agreement is in force. Contract quarters will end on March 31st, June 30th,
September 30th, and December 31st of each contract year.
(b) In return for satisfactory performance of the activities set forth in this Agreement
and all attachments hereto, CITY shall pay to BUREAU an amount of money in each contract
year equal to the lesser amount of Forty-Five and Forty-Two One Hundredths percent (45.42%)
of the annual base payment amount or the fixed contract amount of Four Hundred Ten Thousand
Two Hundred and Eighty-Three Dollars ($410,283). This amount will be divided into quarterly
payments equal to 25% of the annual fixed contract amount, unless 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 45.42% 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 CITY to BUREAU of those
amounts specified in ¶1.2, 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. CITY may withhold the quarterly payment(s) until the
appropriate reports are received and approved, which approval shall not unreasonably be withheld.
1.4 Other limitations regarding consideration.
(a) The fimding of this project in no way commits CITY to future funding of this program
beyond the current contract period. Any future fimding is solely the responsibility of BUREAU.
CVB CY2005 HOT Fund Contxact -- Page 2
(b) It is expressly understood that this contract in no way obligates the General Fund or any
other monies or credits of CITY.
(c) CITY may withhold further allocations if CITY determines that BUREAU'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 CITY to BUREAU of the agreed
payments of hotel tax funds specified above, BUREAU agrees to use such hotel tax fimds only for
advertising and conducting solicitations and promotional programs to attract tourists and convention
delegates or registrants to the municipality or its vicinity as authorized by TEX. TAX CODe
§351.101(a). Funds for any calendar year which are unused by midnight December 31st of that year
shall be refunded to CITY within sixty (60) days.
2.2 Administrative Costs. The hotel tax funds received from CITY by BUREAU may be spent
for day-to-day operations, office supphes, salaries, travel expenses and other administrative costs
allowed by TEx. TAX CODE §351.101(0, only if they are directly attributable to work on programs
which promote tourism and the hotel and convention industry, and which also promote 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) BUREAU agrees to demonstrate strict compliance with the record keeping and
apportionment limitations imposed by Tex. TAx CODe §351.101(f) and §351.108 (c) and (d).
BUREAU shall not utilize hotel tax funds for any expenditure which has not been specifically
documented to satisfy the purposes set forth in ¶¶2.1 and 2.2 above.
(b) Hotel tax fimds 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 performance of the person's job in an efficient and
professional manner.
IlL RECORDKEEPING AND REPORTING REQUIREMENTS
3.1 Budget.
(a) BUREAU shall prepare and submit to the City Manager of CITY an annual budget
(see Exhibit "A") as approved by the City Council for each calendar year, for such operations of
BUREAU in which the hotel tax funds shall be used by BUREAU. This budget shall specifically
identify proposed expenditures of hotel tax funds by BUREAU. In other words, CITY should be
able to audit specifically where the funds in the separate account relating to hotel tax funds will be
expended. CITY shall not pay to BUREAU anY hotel tax revenues as set forth in Section I of this
contract during any fiscal year of this Agreement unless a budget for such respective fiscal year has
been approved in writing by the Denton City Council authorizing the expenditure of funds. Failure
to submit an annual budget may be considered a breach of contract, and if not remedied is
considered grounds for termination of this Agreement as stated in paragraph 4.2.
CVB CY2005 HOT Fund Contract -- Page 3
(b) BUREAU acknowledges that the approval of such budget by the Denton City
Council creates a fiduciary duty in BUREAU with respect to the hotel tax funds paid by CITY to
BUREAU under this Agreement. BUREAU shall expend hotel tax funds only in the manner and
for the purposes specified in this Agreement, TEX. Tax CODE §351.101(a) and in the budget as
approved by CITY.
3.2 Separate Accounts. BUREAU shall maintain any hotel tax funds paid to BUREAU by
CITY in a separate checking account or with segregated fund accounting, such that any reasonable
person can review the revenue source of any given expenditure.
3.3 Financial Records. BUREAU shall maintain complete and accurate financial records of
each expenditure of the hotel tax funds made by BUREAU. These fimds are required to 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 attomey's fees. Upon reasonable advance
written request of the Denton City Council, the City Manager or designate, or any other person,
BUREAU shall make such financial records available for inspection and review by the party
making the request. BUREAU 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. GOV'T
CODE, ch. 552, as hereafter amended.
3.4 Quarterly Reports. After initial receipt of the hotel tax funds, and within thirty days after
the end of every contract quarter, BUREAU shall fianish to CITY: (1) a completed financial report,
(2) a list of the expenditures made or copies of the invoice or receipts with regard to hotel tax funds
pursuant to TEX. TAX CODE §351.101(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). BUREAU shall
prepare and deliver all reports in a form and manner approved by the City Manager or designate.
BUREAU shall respond promptly to any request fi'om the City Manager of CITY, or designate, for
additional information relating to the activities performed under this Agreement.
3.5 Notice of Meetings. BUREAU shall give the City Manager of CITY reasonable advance
written notice of the time and place of all meetings of BUREAU's Board of Directors, as well as
any other meeting of any constituency of BUREAU at which this Agreement or any matter subject
to this Agreement shall be considered.
IV. TERM AND TERMINATION
4.1 Term. The term of this Agreement shall commence on January 1, 2005 and terminate at
midnight on January 31, 2006. However, the program period shall commence on January 1, 2005
and temainate at midnight on December 31, 2005. Only those expenditures authorized by Chapter
351 of the Texas Tax Code and the program guidelines, which are actually incurred during the
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 term'mation of the Agreement.
4.2 Termination Without Cause.
CVB CY2005 HOT Fund Contract -- Page 4
(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 terminated by either party pursuant to Section 4.2(a),
CITY agrees to reimburse BUREAU for any 6ontractual obligations of BUREAU undertaken by
BUREAU in satisfactory performance of those activities specified in ~¶2.1 and 2.2 above and
that were approved by the Council through the budget, as noted in '~3.1. This reimbursement is
conditioned upon such contractual obligations having been incurred and entered into in the good
faith performance of those services contemplated in ¶¶2.1 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 CITY to reimburse
BUREAU or to assume the performance of any contractual obligations of BUREAU for or under
any contract entered into by BUREAU as contemplated herein shall not exceed 66 2/3% of the
current quarterly payment.
(c) Further, upon tennination pursuant to ¶4.2(a), BUREAU will provide CITY: 1)
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 CITY; 3) Within 5
business days of a request from 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. BUREAU will be obligated to return any unused funds or funds determined to be
used improperly. Any use of remaining fimds by BUREAU after notification of termination 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 termination of the legal existence of BUREAU;
(b) The insolvency of BUREAU, the filing of a petition in bankruptcy, either voluntarily or
involuntarily, or an assignment by BUREAU for the benefit of creditors;
(c) The continuation of a breach of any of the terms or conditions of this Agreement by
either CITY or BUREAU 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 BUREAU to submit a financial quarterly report which complies with the
reporting procedures requ'tred herein and generally accepted accounfmg principles prior to the
beginning of the next contract term, or quarterly as required by Section 1.3 hereof.
CVB CY2005 HOT Fund Contract -- Page 5
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 terminated pursuant to ¶¶4.3 or 4.4, BUREAU agrees to
refund any and all unused funds, or funds determined by 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 BUREAU with another private entity, person, or
organization for the performance of those services described in ¶2.1 above. In the event that
BUREAU enters into any arrangement, contractual or otherwise, with such other entity, person or
organization, BUREAU shall cause such other entity, person, or organization to adhere to, conform
to, and be subject to all provisions, terms, and 6onditions of this Agreement and to TEX. TAx CODE
ch. 351, including reporting requirements, §eparate funds maintenance, and limitations and
prohibitions pertaining to expenditure of the agreed payments and hotel tax funds.
5.2 Independent Contractor. BUREAU 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
CITY. BUREAU shall have exclusive control of its operations and performance of services
hereunder, and such persons, entities, or organi.zations performing the same and BUREAU shall be
solely responsible for the acts and omissions' of its directors, officers, employees, agents, and
subcontractors. BUREAU shall not be considered a partner or joint venturer with CITY, nor shall
BUREAU be considered nor in any manner hold itself out as an agent or official representative of
CITY.
5.3 Indemnification. BUREAU AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND 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 BUREAU 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 BUREAU, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS,
LICENSEES AND INVITEES.
5.4 Assignment. BUREAU shall not assign this Agreement without first obtaining the written
consent of CITY.
CVB CY2005 HOT Fund Contract -- Page 6
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, remm receipt requested, or by hand-delivery, addressed to the respective parties as follows:
CITY BUREAU
City of Denton
215 E. McKinney
Denton, TX 76201
Denton Chamber of Commerce
Denton Convention & Visitor Bureau
Kim Phillips
Vice President
P.O. Box Drawer P
Denton, Texas 76202-1719
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 CITY and BUREAU 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 fi.om 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 specifi .c 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.
5.12 Insurance. BUREAU shall, at a minimum, provide insurance as follows:
$500,000 Commercial General Liability
Statutory Workers' Compensation
($100,000/$500,000/$100,000)
and Employers' Liability
CVB CY2005 HOT Fund Contract -- Page 7
$500,000 Business Automobile Liability on any owned, non-owned or hired
vehicles
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 CITY.
ATTEST: , '~
CITY SECRETARY
ATTEST:
THE CITY OF DENTON, TEXAS
By: ~_x3~~ ~
EULINE BROCK, MAYOR
APPRO.5,tED AS TO LEGAL F :
By'/~ .... ~ ~
~ERT L. PROUT/T/T/T/T/T/T/T/T/T~?
CITY ATTO/~Y/
President //
/
APPROVED AS TO LEGAL FORM:
By:
Secretary
By:
CVB CY2005 HOT Fund Contract -- Page 8
Denton Chamber of Commerce
Convention and Visitor Bureau
Advertising
Print Advertising
Convention Advertising
Tourism Promotion Material
Brochures
Travel Shows
Tourism Services
Special Projects
"Event" Magazine
Administration
Administration Salaries
Retirement
Car Allowance
Accounting Salary
Payroll Taxes
Health Insurance
Liability Insurance
Travel & Training
Computer Equipment
Copy Machine
Warehouse Storage
Destop Copier Lease
Office Supplies
Telephone
Memberships
Printing
Postage
Office Rent
SPORTS ADVERTISING
Convention & Trade Shows
SPORTS ADMINISTRATION
Sales Manager Salary
Car Allowance
Health Insurance
Payroll Taxes
Postage
Travel & Training
Memberships
Printing
$ 37,350
2,500
5,000
10,000
2,500
11,000
2,000
80,000
$ 150,350
$ 106,518
2,800
5,500
5,603
15,000
11,800
800
5,000
6,000
500
700
750
1,500
7,500
2,100
1,000
3,500
14,055
$ 190,626
$ 7,500
$ 44,350
1,800
6,157
3,000
5OO
4,000
1,000
1,000
$ 61,807
Exhibit A
Total Budget $ 410,283