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2003-026O =ANCE NO. dO0 -O ,O AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING A PROFESSIONAL SERVICE AGREEMENT IN THE AMOUNT OF $80,000.00 BETWEEN THE CITY OF DENTON, TEXAS AND GREATER DENTON ARTS COUNCIL FOR THE SELECTION, PURCHASE AND PLACEMENT OF PUBLIC ART WITHIN THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Greater Denton Arts Council (the "Organization") offers a specialized professional skill that the City of Denton requires for the selection, purchase and placement of public art upon public property in the City of Denton (the "Program"); and WHEREAS, the City Council of the City of Denton hereby fmds that the Program and the agreement between the Organization attached hereto and made a part hereof by reference (the "Agreement") serve a municipal and public purpose and the Agreement is in the public interest; and WHEREAS, the purchase of art is exempt from competitive bidding under Subsection 252.022(a)(7) of the Local Government Code; 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. AND APPROVED this the 4¢ day of~, 2003. PASSED EULINE BROCK, MAYOR ATTEST: JENNIFER WALTE1RS, CITY SECRETARY APPROVED AS~O LEGA~ORM: BY: ' PROFESSIONAL SERVICE AGREEMENT GREATER DENTON ARTS COUNCIL THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Greater Denton Arts Council, a non-profit corporation incorporated under the laws of the State of Texas (the "GDAC"): WHEREAS, City has determined that GDAC performs an important public service for the residents of Denton without regard to race, religion, color, age or national origin; and WHEREAS, City has determined that GDAC provides a specialized professional skill that the City requires for the selection, purchase and placement of public art upon public property in the City of Denton; NOW, THEREFORE, the parties hereto mutually agree as follows: 1. SCOPE OF SERVICES GDAC shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: The selection, purchase and placement of art to be located on public property. Notwithstanding the foregoing, the City will provide GDAC with a list of public sites to be considered for art placement. Prior to commissioning or purchasing a piece, GDAC will obtain confirmation from the City Manager, or his designee. The City shall have title to all art. 2. OBLIGATIONS OF GDAC In consideration of the receipt of funds from City, GDAC agrees to the following terms and conditions: A. The funds provided for in this Agreement shall only be expended for the purposes set forth in Article 1 above and for no other purpose. B. GDAC shall not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. C. The Organization shall appoint a representative who will be available to meet with City officials when requested. 3. TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frame: P~el February 5, 2003 through January 30, 2004, unless the Agreement is sooner terminated under Article 6 "Termination". 4. PAYMENTS A. PAYMENTS TO GDAC. City shall make available to GDAC the sum not to exceed $80,000.00 which shall be set aside for the purposes of this Agreement. The monies (the "Funds") may only be used to pay for the actual cost of the selection, purchase and placement of the art provided for in this Agreement. The Funds shall not be used for and GDAC shall not charge for its services in selecting, purchasing and placing the art. Such services are being donated by GDAC. Upon written approval of the City, reasonable out of pocket expenses in performing the services under this Agreement may be reimbursed from the Funds. Such out of pocket expenses must be direct expenses and shall not include overhead expenses of GDAC. GDAC shall provide proper documentation and invoice for any purchase or expense and the City will then pay monies (the "Fund") to the Organization or vendor as necessary. B. EXCESS PAYMENT. GDAC 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 Organization; 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. C. AGREEMENT CLOSE OUT. Organization shall submit the Agreement close out package to City, together with a final expenditure report, for the time period covered by the last invoice representing final expenditure of funds under this Agreement, within fifteen (15) working days following the close of the Agreement period. Organization shall utilize the form agreed upon by City and Organization. 5. RECORDKEEPING AND REPORTING REQUIREMENTS A. Separate Accounts. GDAC shall maintain any funds paid to GDAC by CITY in a bank account with segregated accounting, such that any reasonable person can review the source of expenditures of the funds. B. Financial Records. GDAC shall maintain complete and accurate financial records of each expenditure of the the funds made by GDAC. These funds are required to be classified as restricted funds for audited fmancial purposes, and may not be used for Page 2 supporting services, including, but not limited to, auditing fees and attorney's fees. Upon reasonably advance written request of the City Manager or designate, GDAC shall make such financial records available for inspection and review by the party making the request. C. Notice of Meetings. GDAC shall give the City Manager of CITY reasonable advance written notice of the time and place of all meetings of GDAC's Board of Directors where the subject matter of this Agreement is discussed. This provision shall not be deemed to require GDAC to give notice of any executive session of the Executive Committee of GDAC. 6. TERMINATION A. 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 terminated by either party pursuant to this Section 6.A., CITY agrees to reimburse GDAC for any contractual obligations of GDAC undertaken by GDAC in satisfactory performance of authorized activities. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated under this Agreement, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. B. Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of GDAC; (b) The insolvency of GDAC, the filing of a petition in banlauptcy, either voluntarily or involuntarily, or an assignment by GDAC 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 GDAC for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or C. 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 fight 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. D. In the event that this Agreement is terminated, GDAC 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. Page 3 7. GENERAL PROVISIONS A. Independent Contractor. GDAC 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. GDAC shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and GDAC shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. GDAC shall not be considered a partner or joint venturer with CITY, nor shall GDAC be considered nor in any manner hold itself out as an agent or official representative of CITY. B. Indemnification. GDAC 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 PURCHASE OR ACQUISITION OF THE ART CONTEMPLATED BY THIS AGREEMENT EXCEPT FOR LIABILITY ARISING AFTER A PARTICULAR ARTWORK IS DELIVERED TO AND ACCEPTED BY THE CITY. C. Assignment. GDAC shall not assign this Agreement without first obtaining the written consent of CITY. D. Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writ'mg and deposited in the United States mail, certified mail, return receipt requested, or by hand-delivepj, addressed to the respective parties as follows: CITY GDAC City of Denton 215 E. McKinney Denton, TX 76201 Greater Denton Arts Council Herbert Holl Executive Director 207 South Bell Denton, Texas 76201 E. 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 GDAC and their respective successors and assigns. F. 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. G. Exclusive Agreement. This Agreement conta'ms the entire understanding and constitutes the entire agreement between the parties hereto conceming the subject matter contained herein. There are no representations, agreements, arrangements, or Page 4 understandings, omi or written, express or imphed, 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. H. Duplicate Originals. This Agreement is executed in duplicate originals. I. 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. J. 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. K. Insurance. GDAC shall, at a minimum, provide insurance as follows: $500,000 Commercial General Liability Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000) $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. Effective as of the 5th day of February, 2003. THE CITY OF DENTON, TEXAS ATTEST: ~ER WALTERS, / CITY SECRETARY EULINE BROCK, MAYOR HERBERT L. PROUTY, CITY ATTORNEY Page 5 ATTEST: BY:D~ ~(~ny~ GREATER DENTON ARTS COUNCIL ~ne~erry, Presi~lent (~ APPROVED AS TO LEGAL FORM: By: P~e6