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Home My WebLink AboutContract 36598 (2)CITY SECRETARY CONTRACT NO. FUNDING AGREEMENT BETWEEN CITY OF FORT WORTH AND ARTS COUNCIL OF FORT WORTH AND TARRANT COUNTY This FUNDING AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation situated in the State of Texas, acting by and through Karen L. Montgomery, its duly authorized Assistant City Manager, and the ARTS COUNCIL OF FORT WORTH AND TARRANT COUNTY (the "Arts Council"), a Texas not -for -profit corporation, acting by and through Craig Strehl, its duly authorized Board Chairman. WHEREAS, pursuant to V.T.C.A., Tax Code Chapter 351 and the Code of the City of Fort Worth ("City Code") § 3247, the City may use hotel tax revenue for certain specified purposes, including but not limited to, the encouragement, promotion, improvement and application of the arts; WHEREAS, Arts Council exists to encourage, promote, and improve the arts, and does so through its presentation of performances and exhibits to the public and through its Neighborhood Art Program; WHEREAS, City and Arts Council desire to enter into a contract for Arts Council to receive a portion of the City's hotel tax revenue to perform certain activities to encourage, promote and improve the arts. NOW THEREFORE, in consideration of the mutual covenants, promises and obligations contained herein, the parties agree as follows: 1. FUNDING AND SCOPE OF SERVICES. (a) Pursuant to V.T.C.A., Tax Code Chapter 351 and the Code of the City of Fort Worth ty Code") § 32-17, the City agrees to pay Arts Council during the term of this Agreement the sum of Three Hundred Ten Thousand Dollars ($310,000), payable in twelve equal monthly installments, from revenue generated by the City's hotel occupancy tax. (b) In return, Arts Council will promote artistic and cultural activities to help the City promote tourism and the convention and hotel industries. Arts Council agrees that expenditures of any funds received hereunder shall be for purposes that fully comply with the requirement of V.T.C.A., Tax Code § 351.101. In performance of such services, Arts Council commits to meet service performance criteria as set out in Exhibit A attached hereto and incorporated herein for all purposes incident to this Agreement. 02-04-08 P12.41 I 2. TERM OF AGREEMENT AND TERMINATION. (a) This Agreement shall commence on October 1, 2007, and end on September 30, 2008. The City may terminate this Agreement for cause by giving Arts Council written notice not less than thirty (30) days prior to the effective date of such termination. (b) If the City exercises its right to terminate this Agreement prior to its expiration, Arts Council's obligations to the City under this Agreement shall continue until the date such termination actually takes effect. On the date of termination, Arts Council shall reimburse to City all funds it has received, but not otherwise expended, committed or encumbered by contract, under this Agreement. (c) In the event that no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Arts Council of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 3. PERFORMANCE. (a) In accordance with V.T.C.A., Tax Code § 35L101(e), Arts Council agrees that the funds received hereunder may be used for dayAo-day operations, supplies, salaries, office rental, travel expenses, and other administrative costs only if those administrative expenses are incurred Erectly in the promotion and servicing expenditures as authorized under the aforementioned chapter of the Tax Code. Further, in accordance with Tax Code § 351.101(f) Arts Council shall not used the funds received hereunder 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 tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. (b) Arts Council further agrees that it will maintain all funds received hereunder in a separate account. Arts Council shall not commingle such funds with any other funds or maintain such funds in any other accounts. In addition, Arts Council's expenditure of such funds shall strictly be in accordance with its Budget, attached as Exhibit B and incorporated herein by reference for all purposes. Arts Council understands and agrees that upon the acceptance of funds hereunder, a fiduciary duty is created with respect to the expenditure of such funds. (c) Arts Council shall submit quarterly financial reports to the City that reflect all receipts and disbursements of funds received pursuant to this Agreement. In addition, within thirty (30) days following the end of the City's fiscal year, Arts Council shall submit to the City an annual financial report that reflects all receipts and disbursements of such funds received during the term of this Agreement and that sets forth all other material information pertaining to the financial activities and financial condition of the Arts Council. 2 (d) Arts Council shall submit quarterly service performance reports to the City that reflect services and activities undertaken by Arts Council in performance of this Agreement. Each report will be signed by a duly authorized agent of Arts Council. In addition, within thirty (30) days following the end of the City's fiscal year, Arts Council shall submit to the City an annual service performance report that reflect all services and activities undertaken by Arts Council in performance of this Agreement. (e) At any time during the term of this Agreement, the City shall have the right to authorize an audit of Arts Council's records as they pertain to its receipt and expenditure of funds hereunder. Such audits shall be prepared at the City's expense. However, if any such audit reveals material discrepancies in the Arts Council's records, Arts Council agrees that it shall reimburse the City for the full costs of such audit. 4. BOND HOLDER RIGHTS. The City's obligations and Arts Council's rights under this Agreement shall be subordinate to and limited by the terms and conditions of all subsequent City ordinances which authorize the issuance of bonds whose payment is pledged upon the City's hotel occupancy tax. Arts Council agrees and understands that rights of the holders of any such revenue bonds shall be superior in all respects to the rights of Arts Council. However, the City, to the extent practicable, shall give Arts Council as much prior notice as reasonably possible of the City's intent to issue such bonds. 5. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Arts Council shall operate as an independent contractor as to all services and obligations performed hereunder, and not as an agent, representative or employee of the City. Arts Council shall have the exclusive right to control the details of its operations and activities and shall be solely responsible for the acts and omissions of its boards, officers, agents, servants, employees, contractors, subcontractors and members. The Arts Council acknowledges that the doctrine of respondeat superior shall not apply between the City and Arts Council its boards, officers, agents, servants, employees, contractors, subcontractors and members. Arts Council further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Arts Council. 6. INDEMNIFICATION. (a) ARTS COUNCIL HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY OF ANY HIND, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THE ARTS COUNCIL'S RECEIPT OR EXPENDITURE OF CITY FUNDS OR THE ARTS COUNCIL'S PROVISION OF ANY SERVICES HEREUNDER. ARTS COUNCIL COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY AND HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, +V�Y1�/ �I�\J�� J��Y••Y FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY OF ANY HIND, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THE ARTS COUNCIL'S RECEIPT OR EXPENDITURE OF CITY FUNDS OR THE ARTS COUNCIL'S PROVISION OF ANY SERVICES HEREUNDER. (b) ARTS COUNCIL AGREES THAT IT HAS NAMED OR WILL NAME THE CITY OF FORT WORTH AS AN ADDITIONAL INSURED ON ALL OF ARTS COUNCIL'S INSURANCE POLICIES PERTINENT TO ANY PROGRAMS, ACTIVITIES OR OPERATIONS FUNDED HEREUNDER. ARTS COUNCIL SHALL SUBMIT TO CITY CERTIFICATES OF SUCH INSURANCE. 7. ASSIGNMENT. The Arts Council shall not assign, sell, convey or transfer its interest under this Agreement. Any such attempted assignment of same shall be null and void. 8. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 9. NO WAIVER. The failure of the City to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the Citys right to insist upon appropriate performance or to assert any such right on any future occasion. 10. VENUE. Should any action, whether real or asserted, at law or in equity, arise out of the terms of this Agreement, venue for said action shall be in Tarrant County, Texas. 11. SEVERABILITY. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provision shall not in any way be affected or impaired. 12. ENTIRETY OF AGREEMENT. This written instrument, including any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Arts Council as to the matters herein contained. Any prior or contemporaneous oral or written agreement is hereby u'f�J�1J6=!L d 4 ,IQQIIJ U l� hIII?? ��S E �II�j`;1��}P(QF �Ui :�'•1`l ::U�' 1 lS LUG declared null and void to the extent in conflict with this Agreement. This Agreement shall not be amended unless agreed to in writing by both parties and approved by the City Council of the City. 13. RIGHT TO AUDIT. The Arts Council agrees that the City shall, until the expiration of three (3) years after Final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of the Arts Council involving transactions relating to this Agreement. The Arts Council agrees that the City shall have access during normal working hours to all necessary Arts Council facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give the Arts Council reasonable advance notice of intended audits. The Arts Council further agrees to include in all of its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractor involving transactions to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable advance notice of intended audits. 14. NOTICES. Notices to be provided hereunder shall be sufficient if forwarded to the other party by hand delivery or via U.S. Postal Service certified mail, postage prepaid, to the address of the other party shown below. City of Fort Worth Karen L. Montgomery, Assistant City Manager 1000 Throckmorton Fort Worth, Texas 76102 817-392-6222 Arts Council of Fort Worth and Tarrant County Craig Strehl, Board Chairman 1300 Gendy Street Fort Worth, TX 76107 817-732-2360 [SIGNATURES APPEAR ON THE FOLLOWING PAGE] IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples to become effective for the stated term upon the filing with and assignor t of a contract number b. the City Secretary's Office of the City of Fort Worth, Texas, this day of ��e� �� ,A.D. 2007. CITY OF FORT WORTH: By: Karen L. Montgomery Assistant City Manager I:1 APPROVED AS TO FORM AND LEGALITY: Assistant City ARTS CO AND TAR Craig Strehl Board Chairman FORT WORTH a ru 1k ; a bs `:i 1 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Craig Strehl, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the Arts Council of Fort Worth and Tarrant County, and that she executed the same as the act of the Arts Council of Fort Worth and Tarrant County, for the purposes and consideration therein expresseA and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE thisay of 520070 Notary Public in and for the State of Texas �io.Par vuaa, Notary PKRISTIublic, State of Texas ' My Commission Explfea %'„ga► ;;•' June 21, 2009 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Karen L. Montgomery, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that she executed the same as the act of said City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. / ESL GIVEN UNDER MY HAND AND SEAL OF OFFICE this Notary blic in and for the State Of Texas JONI R. MAY MY COMMISSION EXPIRES May 27, 2011 day Arts Council of Fort Worth and Tarrant County PROPOSED Operating Budget Worksheet - Jan 2008 to Dec 2008 Revenue Annual Fund Restricted NAP 495,608 NAP - various 58,000000 NAP - City 280,000 280,000.00 City (new $) 157,608.25 Annual Fund Restricted Other 27,522 Admin - TCA Core Support grant 41522,00 ARTicle Magazine & Cultural Directory 13,000,00 County 10,000200 Annual Fund Unrestricted 11198,813 Individual (deferred to FY09 Grants) 238,500600 Corporate (deferred to FY09 Grants) 185,500900 Foundation (deferred to FY09 Grants) 53,000000 City (existing) 3101000600 City (new $) 378,259080 State 33,553900 Affair of the Arts 2008 60,290 Tables/Tickets/Contr Raffle Auction Toast of the Town 2793000 Tables/Tickets/Contr 2791000.0O Grant Awards Luncheon 51000 Board Assessments 21500 Board lunches 21000200 Executive Committee add'I lunches 500.00 Investments 14,950 Total Revenue 2,0839683 Operating Expenses Subtotals Administration Salaries 184,220610 Insurance Benefits inc Retirement Plan Contribution 41846050 Taxes - Payroll inc Administaff Costs 36,310,00 Subtotal 225,377 Overhead Expenses Audit 5,000.00 Bookkeeper - Craig Hamilton & Co. 31450,00 IT Contract Services - Nu -Design 10,000000 Web Hosting - Mesh Net Arts Council of Fort Worth and Tarrant County A PROPOSED Operating Budget Worksheet --Jan 2008 to Dec 2008 IT Support - Donor Perfect 0.00 Theatre Tech nicians/Arts Council events 0.00 Board Meetings 21500000 Bank Charges 150.00 Credit Card Merchant Fees 51800000 Equipment Lease - Pitney Bowes 300.00 Equipment Purchase 21000600 Insurance_ Liability 11000,00 Mileage & Parking _ 200.00 __ Office Supplies Postage 51000000 4,500.00 Printing Professional Meetings/Conference 11000,00 500.00 Professional Membership Dues 750.00 Telephone 41500,00 47,150 Public Information Grant Awards Luncheon 31500,00 Annual Meeting Misc. 500.00 _ Catering 1,000.00 Invitations 1,000.00 ARTicle Magazine Distribution Fee 131000000 Subtotal 193000 Total Operating Expenses 291,527 2007 Grant Awards (details are noted in Grants Worksheet Tab and is deferred to FY08 grants) 11479,429 Operating Contigency Reserve = 10% of operating 29,153 Cash Reserve 142,735 Fundraising Expenses P 138,340 Detailed fundraising expenses have been included in the Fundraising Expenses tab 2,081,183 Variance 22 500 Page 1 of 1 • • • - • . • • • . • DATE: Tuesday, October 30, 2007 LOG NAME: 03ARTSCOUNCIL REFERENCE NO.: **C-22474 SUBJECT: Authorize the Execution of a Contract with the Arts Council of Fort Worth and Tarrant County to Promote Artistic and Cultural Activities RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a contract with the Arts Council of Fort Worth and Tarrant County for their promotion of artistic and cultural activities. DISCUSSION: The City, from a portion of the Hotel/Motel Occupancy Tax receipts, appropriates funds for the Arts Council of Fort Worth and Tarrant County. During the FY2007-08 budget process, the City Council approved funding in the amount of $310,000 from the Hotel/Motel Occupancy Tax receipts for the Arts Council of Fort Worth and Tarrant County. The Arts Council of Fort Worth and Tarrant County provides financial assistance to nonprofit organizations in Fort Worth for projects that promote and enhance the cultural and artistic life of the community, which assists the City in promoting tourism and the convention and hotel industries. It is proposed that a contract be executed between the City of Fort Worth and Arts Council of Fort Worth and Tarrant County for the period of October 1, 2007, through September 30, 2008. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current operating budget, as appropriated, of the Culture and Tourism Fund. TO Fund/Account/Centers Submitted for City Manager's Office b� Originating Department Head: Additional Information Contact: FROM Fund/Account/Centers GG04 539120 0242000 $310,000.00 Karen Montgomery (6222) Bridgette Garrett (8518) Erin Roseman (8512) http : //www. cfwnet. org/council�acket/Reports/mc�rint. asp 2/6/2008