2004-267ORDINANCE NO. ~,~ff¢ ~ 7
AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN INTERLOCAL
AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COUNTY FOR THE
PAYMENT AND USE OF HOTEL TAX REVENUE IN SUPPORT OF THE BAYLESS-
SELBY HOUSE AND THE COURTHOUSE-ON-THE-SQUARE MUSEUMS; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, Tex. Tax Code §351.101(a) authorizes the City of Denton, Texas to use
revenue i~om 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 to visit preserved historic sites
and museums; and
WHEREAS, the County of Denton, Texas is well equipped to perform those activities by its
operation of the Bayless-Selby House and Courthouse-on-the-Square Museums; and
WHEREAS, Tex. Tax Code §351.101(c) authorizes the City of Denton, Texas to delegate
by contract with the County of Denton, Texas, as a governmental entity, the management and
supervision of programs and activities of the type described hereinabove funded with revenue from
the municipal hotel occupancy tax; and
WHEREAS, both the City of Denton, Texas and the County of Denton, Texas have a
secondary source of authority to enter into an interlocal cooperation agreement, pursuant to Chapter
791 of the Texas Government Code, as: the agreement is authorized by both governmental bodies;
the agreement states the purpose, terms, fights, and duties of the contracting parties; the
consideration is being paid by City of Denton, Texas out of current revenues; the compensation is
fair; and the services to be performed are "museum services" authorized under §791.003(3)(F) of
the Texas Govemment Code, which each party is authorized to perform individually; NOW,
THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. That the Mayor is hereby authorized to execute an interlocal agreement
between the City of Denton and Denton County for the payment and use of hotel tax revenue in
support of the Bayless-Selby House and Courthouse-On-The Square Museums, under the terms
and conditions contained in the agreement, a copy of which is attached hereto and made a part
hereof.
SECTION 2. That this ordinance shall become effective immediately upon its passage
and approval.
P~el
2004.
EULINEBROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
Page 2
AGREEMENT BETWEEN THE CITY OF DENTON AND
DENTON COUNTY, TEXAS (COURTHOUSE ON THE SQUARE
AND THE BAYLESS-SELBY HOUSE MUSEUMS) (CY2005)
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 County of Denton, Texas, a governmental entity existing under the laws of the
State of Texas, contracting on behalf of its Courthouse-on-the-Square and the Bayless-Selby House
Museums (collectively, the "MUSEUMS"):
WHEREAS, TEX. TAX 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. TAX CODE §351.101(a) authorizes CITY to use re4enue 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; as well as to engage in historical
restoration and preservation projects and activities and advertising and conducting solicitations and
promotional programs to encourage tourists and convention delegates'to visit preserved historic
sites and museums; and
WHEREAS, TEX. TAX CODE §351.101(C) authorizes CITY to delegate by contract with
MUSEUMS, as a governmental entity, the management and supervision of programs and activities
of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; and
WHEREAS, MUSEUMS are well equipped to perform those activities; and
WHEREAS, both CITY and MUSEUMS have a secondary source of authority to enter into
this Agreement as an interlocal cooperation agreement, pursuant to Chapter 791 of the Texas
Govemment Code, as: the Agreement is authorized by both governmental bodies; the Agreement
states the purpose, terms, rights, and duties of the contracting parties; the consideration is being paid
by CITY out of current revenues; the compensation is fair; and the services to be performed are
"museum services" authorized under §791.003(3)(F) of the Texas Government COde, which each
party is author/zed to perform individually;
NOW, THEREFORE, in consideration of the performance of the mutual covenants, and
promises contained herein, CITY and MUSEUMS agree and contract as follows:
I. HOTEL TAX REVENUE PAYMENT
1.1 Consideration. For and in consideration of the activities to be performed by MUSEUMS
under this Agreement, CITY agrees to pay to MUSEUMS a portion of the hotel tax revenue
c611ected by CITY at the rates and in the manner specified herein (such payments by CITY to
MUSEUMS 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 fxom 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 A~eement is in force. Contract quarters will end on March 31st, June 30t~,
September 30 , and December 31st of each contract year.
0o) In return for satisfactory performance of the activities set forth in this Agreement
and all attachments hereto, CITY shall pay to MUSEUMS an amount of money in each contract
year equal to the lesser amount of Ten and Thirty One Hundredths percent (10.30%) of the
annual base payment amount or the fixed contract amount of Ninety-Three Thousand Dollars
($93,000). 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 mmua! 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 10.30% 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 MUSEUMS of those
amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected.
HOT Funds CY 2005 Denton County Museums Page 2
' Co) 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 funding of this project in no way commits CITY to future funding of this program
beyond the current contract period. Any future funding is solely the responsibility of MUSEUMS.
(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 MUSEUMS'
expenditures deviate materially from their approved budget.
II. USE OF HOTEL TAX REV'JgNUE
2.1 Use of Funds. For and in consideration of the payment by CITY to MUSEUMS of the
agreed payments of hotel tax funds specified above, MUSEUMS agree to use such hotel tax funds
only for advertising and conducting solicitations and promgtional programs to attract tourists and
convention delegates or registrants to the municipality or its vicinity, as well as to engage in
historical restoration and preservation projects and activities and advertising and conducting
solicitations and promotional programs to encourage tourists and conventidn delegates to visit
preserved historic sites and museums, as authorized by TEX. TAX CODE §351.101 (a)(3) and (a)(5).
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 MUSEUMS may be
spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative
costs allowed by TEX. TAX CODE §351.101(f), 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) MUSEUMS agree to demonstrate strict compliance with the reco~d keeping and
apportionment limitations imposed by TEX. TAX CODE §351.101(f) and §351.108 (c) and (d).
MUSEUMS 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 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 performance of the person's job in an efficient and
professional manner.
HOT Funds CY 2005 Denton County Museums Page 3
III. RECORDKEEPING AND REPORTING REQUIREMENTS
3.1 Budget.
(a) MUSEUMS 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
MUSEUMS in which the hotel tax funds shall be used by MUSEUMS. This budget shall
specifically identify proposed expenditures of hotel tax funds by MUSEUMS. 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 MUSEUMS 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
expe. nditure 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.
(b) MUSEUMS acknowledge that the approval of such budget by the Denton City
Council creates a fiduciary duty in MUSEUMS with respect to the hotel tax funds paid by CITY to
MUSEUMS under this Agreement. MUSEUMS 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. MUSEUMS shall maintain any hotel tax funds paid to MUSEUMS
· by CITY in a separate account or with segregated fund accounting, such that any reasonable person
can ascertain the revenue source of any given expenditure.
3.3 Financial Records. MUSEUMS shall maintain complete and accurate f'mancial records
of each expenditure of the hotel tax funds made by MUSEUMS. These funds 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 attorney's fees. Upon reasonable advance
written request of the Denton City Council, the City Manager or designate, or any other person,
MUSEUMS shall make such financial records available for inspection and review by the party
making the request. MUSEUMS understand and accept that all such f'mancial records, and any
other records relating to this Agreement shall be subject to the Public Information Act, TEX. GOV'T
COVE, ch. 552, as hereafter amended.
3.4 Quarterly Reports. AtSer initial receipt of hotel tax funds, and within thirt~ days after the
end of every contract quarter, MUSEUMS shall finnish to CITY: (1) 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 §351.101(c), and (3) a copy of all financial records (e.g., front
and back copies of cleared checks or bank statements, and other relevant documentation),
MUSEUMS shall prepare and deliver all reports in a form and manner approved by the City
Manager or designate. MUSEUMS shall respond promptly to any request from the City Manager
of CITY, or designate, for additional information relating to the activities performed under th/s
Agreement.
HOT Funds CY 2005 Denton County Museums Page 4
3.5 Notice of Meetings. MUSEUMS shall give the City Manager or its designate of CITY
reasonable advance written notice of the time and place of all meetings of MUSEUMS' Boards of
Directors, as well as any other meeting of any constituency of MUSEUMS at which this Agreement
or any matter subject t? this Agreement shall be considered.
IV. TERM AND TERMINATION
4.1 Term. The term of this Agreement shall commence on January 1, 2005 and terminates at
midnight on January 31, 2006. However, the program period shall commence on January 1, 2005
and terminate 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
fund. ing under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to
CITY upon termination of the Agreement.
4.2 Termination Without Cause.
(a) Tiffs 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 MUSEUMS for any contractual obligations of MUSEUMS
undertaken by MUSEUMS 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 ol~ligitions having been incurred and
entered into in the good faith performance 0fthose 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 MUSEUMS or to assume the performance of any contractual obligations of
MUSEUMS for or under any contract entered into by MUSEUMS as contemplated herein shall
not exceed 66 2/3% of the current quarterly payment.
(c) Further, upon termination pursuant to ¶4.2(a), MUSEUMS 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 ~e 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. MUSEUMS will be obligated to return any unused funds or funds determined to be
used improperly. Any use of remaining funds by MUSEUMS 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.
HOT Funds CY 2005 Denton County Museums Page 5
4.3 Automatic Termination. This Agreement shall
occurrence of any of the following events:
automatically, terminate upon the
(a) The termination of the legal existence of MUSEUMS;
Co) The insolvency of MUSEUMS, the filing of a petition in bankruptcy, either voluntarily
or involuntarily, or an assignment by MUSEUMS 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 MUSEUMS 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 MUSEUMS 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 hereofi
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 concerrdng 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, MUSEUMS agree 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 MUSEUMS with another private entity, person, or
organization for the performance of those services described in ¶2.1 above. In the event that
MUSEUMS enter into any arrangement, contractual or otherwise, with such other entity, person or
organization, MUSEUMS 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. 351, 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. MUSEUMS 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. MUSEUMS shall have exclusive control of its operations and performance of services
hereunder, and such persons, entities, or organizations performing the same and MUSEUMS shall
be solely responsible for the acts and omissions of its directors, officers, employees, agents,' and
subcontractors. MUSEUMS shall not be considered a partner or joint venturer with CITY, nor shall
MUSEUMS be considered nor in any manner hold itself out as an agent or official representative of
CITY.
HOT Funds CY 2005 Denton County Museums Page 6
5.3 Indemnification. TO THE EXTENT AUTHORIZED BY LAW, MUSEUMS AGREE
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 MUSEUMS
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 MUSEUM, ITS
OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND
INVITEES.
5.4 Assignment. MUSEUMS shall not assign this Agreement without first obtaining the
written consent of 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
City Manager
City of Denton
215 E. McKinney
Denton, TX 76201
MUSEUMS
Denton County Courthouse-On-The Square
and the Bayles~-Selby House Museums
Georgia Caraway, Director
110 W. Hickory St.
Denton, Texas 76201
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 MUSEUMS and their respective successors and assigns.
5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject .
to ali 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.
HOT Funds CY 2005 Denton County Museums Page 7
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.
5.12 Insurance. MUSEUMS shall provide insurance as follows:
1. Statutory Workers' Compensation and Employers' Liability
($100,000/$500,000/$100,000)
Proof of coverage shall be submitted prior to any payment by CITY.
5.13 Waiver of Immunity for Suit to Enforce. By executing and authorizing the execution of
this contract, DENTON COUNTY, TEXAS expressly waives immunity tSom any suit brought by
CITY for the enforcement of the provisions contained herein, and further expressly waives the
presentment required of Tex. Loc. Gov't Code sec. 89.004 as a prerequisite to such suit.
EXECUTED thiscT~ ~/-~day of 0,~_/./~/7~/5 ,:2004.
THE CITY oF DENTON, TEXAS
EUL1NE BROCK, MAYOR
ATTEST:
APPR. flYEEffA~S TO LEGAL FORM:
CI
2OUNTY, TEXAS
HOT Funds CY 2005 Denton County Museums Page 8
APPROVED AS TO LEGAL FORM:
HOT Funds CY 2005 Denton Counb' Museums Page 9
Denton County Museums
Courthouse Museum on the Square
Balyess-Selby House
Exhibit A
Advertising
Block Ads
Brochures
Newpapers
Magazines
$ 1,886
3,000
12,000
8,420
$ 25,306
Historical
Archival Supplies
Reference Books
Preservations Furnishings/Equipment
$ 7,000
5O0
8,024
$ 15,524
Administration
Tourism Director - Partial Salary $ 20,000
Curator of Collections - Partial Salary 10,000
Contract Labor 2,000
Office Supplies 960
Balyess-Selby House Museum Manager - Partial Salal 19,000
Membership Dues 210
$ 52,170
Total Budget $ 93,000