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2003-312ORD CE NO. AN ORDINANCE OF THE CITY OF DENTON APPROVING AN AGREEMENT IN THE AMOUNT OF $500.00 BETWEEN THE CITY OF DENTON, TEXAS AND DENTON HOLIDAY FESTIVAL ASSOCIATION FOR THE INSTALLATION AND MAINTENANCE OF DECORATIVE LIGHTING IN THE DOWNTOWN SQUARE AND RELATED HOLIDAY ACTIVITES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Denton Holiday Festival Association, Inc. (the "Organization") offers a specialized service for the installation and maintenance of decorative lighting in the Downtown Square and related holiday activities (the "Program"); and WHEREAS, the City Council of the City of Denton hereby finds 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; 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 Agreement is hereby approved, and 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 /~¢ dayof %~9~ff-~,2003. / EULINE BROCK, MAYOR ATTEST: JEN~FER W~ALTERS~CITY SECRETARY API~7OVED AS TO LEGA,12 FORM: HERBERT~U//,~TY ATTORNEY BY: AGREEMENT 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 Denton Holiday Festival Association, Inc., a Texas non-profit corporation, hereinafter referred to as "Organization"; WHEREAS, City has determined that the Organization will perform an important public service for the residents of the City of Denton without regard to race, religion, color, age or national origin by providing for certain services related to the installation and maintenance of decorative lighting in the Denton Square and related holiday activities; and WHEREAS, this agreement is in the public interest; NOW, THEREFORE, the parties hereto mutually agree as follows: 1. SCOPE OF SERVICES Organization shall in a satisfactory and proper manner perform the following tasks, for which the mottles provided by the City may be used: installation and maintenance of decorative lights in the Denton Town Square includ'mg the rental of port-a-lets and other related activities authorized by the City. 2. OBLIGATIONS OF ORGANIZATION In consideration of the receipt of funds from the City, Organization agrees to the following terms and conditions: A. The funds provided for in this Agreement shall onlybe expended for the purposes set forth in Section 1 above, subject to Section 4.A. and for no other purpose. B. The Organization shall expend the funds in a manner that will allow for a tracing of funds and a review of the specific expenditures for which the funds were utilized. C. The Organization shall permit authorized officials of City to review its books at any time. D. The Organization will reduce to writing all of its rules, regulations, and policies and file a copy with City's Ma'm Street Division along with any amendments, additions, or revisions whenever adopted. E. The Organization shall not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. F. As funds are expended, the Organization shall provide documentation in the form of cancelled checks and corresponding receipts detailing expenditure. G. The Organization shall appoint a representative who will be available to meet with City officials when requested. H. The Organization shall indemrfify and hold harmless City fi:om any and all claims and suits arising out of the activities of Organization, its employees, and/or contractors. I. The Organization shall submit to City copies of year-end audited financial statements. 3. TIME OF PERFORMANCE The services funded by City and County shall be undertaken and completed by Organization by December 31, 2003. 4. PAYMENTS A. PAYMENTS TO ORGANIZATION. As of the effective date of this Agreement, the City shall pay to the Organization the sum of $500.00 to be used solely for the purposes set forth in Section 1 above. B. EXCESS PAYMENT. Organization shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City 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. DEOBLIGATION OF FUNDS/REVERSION OF ASSETS. In the event that actual expenditures deviate fi:om Organization's provision of a corresponding level of performance, City hereby reserves the right to reappropriate or recapture any such under expended funds. If City find that Organization is unwilling and/or unable to comply with any of the terms of this Agreement, City may require a refund o f any and all money expended pursuant to this Agreement by Organization, as well as any remaining unexpended funds which shall be refunded to City within ten working days of a written notice to Organization to revert these financial assets. The reversion of these financial assets shall be in addition to any other remedy available to City either at law or in equity for breach of this Agreement. D. 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. 2 5. SUSPENSION OR TERMINATION A. The City may terminate this Agreement for cause if the Organization violates any covenants, agreements, or guarantees of this Agreement, the Organization's insolvency or filing of bankruptcy, dissolution, or receivership, or the Organization'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. B. The City may terminate this Agreement for convenience at any time. If the City terminates this Agreement for convenience, Organization will be paid an amount not to exceed the total amount of accrued expenditures as of the effective date of termination. In no event will this compensation exceed an amount that bears the same ratio to the total compensation as the services actually performed bears to the total services of Organization covered by the Agreement, less payments previously made. In case of suspension, City shall advise Organization, in writing, as to conditions precedent to the resumption of funding and specify a reasonable date for compliance. In case of termination, Organization will remit to City any unexpended City and County funds. Acceptance of these funds shall not constitute a waiver of any claim City may otherwise have ar/sing out of this Agreement. 6. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. Organization shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. Organization 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 roles and regulations. C. In the event of Organization's non-compliance with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and Organization may be barred from further contracts with City. 7. WARRANTIES ORGANIZATION 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. 3 B. Any supporting financial statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of Organization 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 Organization. C. No litigation or legal proceedings are presently pending or threatened against Organization. D. None of the provisions herein contravenes or is in conflict with the authority under which Organization is doing business or with the provisions of any existing indenture or agreement of Organization. E. Organization 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 of the assets of Organization 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 Organization 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. 8. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by the parties, except when the terms of this Agreement expressly provide that another method shall be used. B. Organization cannot significantly change the nature, intent, or scope of the program funded under this Agreement without the prior written approval of the City. C. R 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. D. Organization agrees to notify City of any proposed change in physical location for work performed under this Agreement at least thirty (30) calendar days in advance of the change. E. Organization shall notify City of any changes in personnel or governing board composition. F. It is expressly understood that the transfer of funds between or among programs of the Organization will not be permitted. 9. INDEMNIFICATION A. It is expressly understood and agreed by parties hereto that City is contracting with Organization as an independent contractor and that as such, Organization shall save and hold City, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of Organization. B. Organization agrees to provide the defense for, and to indemnify and hold harmless City its agents, employees, or contractors from any and ail claims, suits, causes of action, demands, damages, losses, attorney fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of City, or its agents or employees. 10. INSURANCE A. Organization shall observe sound business practices with respect to pmviding such bonding and insurance as would provide adequate coverage for services offered under this Agreement. B. The premises on and in which the activities described in Section I are conducted, the employees, agents or contractors conducting these activities, shall be covered by premise liability insurance, commonly referred to as "Owner/Tenant" coverage with City named as additional insureds. Upon request of Organization, Citymay, at its sole discretion, approve alternate insurance coverage arrangements. C. Organization will comply with applicable workers' compensation statutes and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants, if applicable. D. Organization will maintain adequate and continuous liability insurance on all vehicles owned, leased, or operated by Organization. All employees of Organization who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas Driver's license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance must be maintained on a current basis in Organization's files. E. Actual losses not covered by insurance as required by this Section are not allowable costs under this Agreement, and remain the sole responsibility of Organization. F. The policy or policies of insurance shall contain a clause which requires that City and Organization be notified in writing of any cancellation or change in the policy at least thirty (30) days prior to such change or cancellation. 11. CONFLICT OF INTEREST A. Organization covenants that neither it nor any member ofits governing bodypresently 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. Organization 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. Organization 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. 12. NEPOTISM Organization shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by Organization, or is a member of Organization's governing board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, .stepparent, stepchild, half-brother and half-sister. 13. 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, addressed to Organization or City, as the case may be, at the following addresses: CITY ORGANIZATION City of Denton, Texas Attn: City Manager 215 E. McKiuney Denton, TX 76201 Denton Holiday Festival, Inc. Attention: Bob Moses, Chairman 115 W. Hickory Street Denton, TX 76205 6 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. 14. MISCELLANEOUS A. Organization 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 f'mancial institution without the prior written approval of City. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, thc 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 Organization hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement consti- tute 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 Organization. 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 fights 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 referenced 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, is fully performable in Denton County, Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, the.., --narties do hereby affix their signatures and enter into this Agreement as of the /~b/,/ day of t~,~. , 2003. DENTON HOLIDAY FESTWAL, INC. Bob Moses, Chairperson ATTEST: ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBE~~ORNEY Michael A. Conduff, City/~ger 8