HomeMy WebLinkAboutResolution No. 2011-019CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2011- C l kY
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER
TO EXECUTE A FUNDING AGREEMENT WITH PIRATE DAYS
OF TEXAS, INC. FOR THE 2011 PIRATE DAYS FESTIVAL;
PROVIDING AN EFFECTIVE DATE
WHEREAS, the Pirate Days of Texas, Inc. is hosting a Pirate Days festival to be
held at Stewart Creek Park October 15-16, 2011; and,
WHEREAS, the Pirate Days of Texas, Inc. has requested the City grant fiends in
the amount $ z'- ( t' e, for the event; and,
WHEREAS, the City believes the festival will promote and attract conventions
and tourism within the City, as well as benefiting its citizens and local businesses; and,
WHEREAS, the City Council has determined it to be in the City's best interest to
authorize the use of Hotel Occupancy Tax Funds and Special Events Funds, and to
authorize the city manager to execute a Funding Agreement in the amount of
$ -C 1z,Z,, ie. for this purpose.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF THE COLONY, TEXAS:
Section 1. That the City Council of the City of The Colony, Texas hereby
authorizes the city manager to execute a Funding Agreement with Pirate Days of Texas,
Inc. in the amount of $ from Hotel Occupancy Tax Funds and Special
Events Funds to promote and enhance tourism in the City through the 2011 Pirate Days
Festival.
Section 2. That this resolution shall take effect immediately from and after its
passage.
PASSED AND APPROVED by the City Council of the City of The Colony,
Texas, this ( day of March, 2011.
ATEi
Christie Wilson, TRMC, City Secretary
APPROVED AS TO FORM:
t
Jeff City Attorney
Joe McCourry, Mayor
City of The Colony, Tees
STATE OF TEXAS §
§ FUNDING AGREEMENT
COUNTY OF DENTON §
This Funding Agreement (hereinafter referred to as the "Agreement") is made by and
between the City of The Colony, Texas (hereinafter referred to as the "City"), and Pirate Days of
Texas, Inc., a Texas nonprofit corporation (hereinafter referred to as "Pirate Days"), acting by
and through their respective authorized officers.
WITNESSETH:
WHEREAS, Pirate Days will host a themed weekend festival October 15-16, 2011
(hereinafter referred to as the "Festival"); and
WHEREAS, the Festival will be held at Stewart Creek Park, which is leased and
operated by the City (hereinafter referred to as the "Park"); and
WHEREAS, Pirate Days anticipates the Festival will attract approximately 6,000 to
8,000 visitors and participants from throughout Texas and adjoining states; and
WHEREAS, the City believes the Festival will promote and attract convention and
tourism and benefit the City, its citizens and local businesses as well as local places of
accommodation; and
WHEREAS, Pirate Days has requested the funding for a portion of the Festival through
the City of The Colony Hotel Occupancy Tax (hereinafter referred to as the "HOT FUNDS") and
Special Events Funds; and
WHEREAS, the City desires to assist Pirate Days in funding a portion the Festival
through HOT FUNDS and Special Events Funds; and
WHEREAS, the City finds and determines that the provision of HOT FUNDS through
this Agreement is consistent with Section 351.101(a)(3) and (a)(4) of the Texas Tax Code; and
WHEREAS, the City has determined that entering into this Agreement with Pirate Days
will further the objectives of the City and the objective of enhancing and monitoring tourism and
the hotel industry and will be in the best interest of the City and local businesses.
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration the receipt and sufficiency of which are hereby acknowledged on the terms and
conditions hereinafter set forth, the parties agree as follows:
FUNDING AGREEMENT -PAGE 1
ARTICLE I
Term
This Agreement shall be effective on the date of execution hereof by the City and Pirate
Days and shall continue until the parties have satisfied all of their respective obligations, unless
sooner terminated as provided herein.
ARTICLE II
Agreement
2.1 Pirate Days requests that the City make a grant of HOT FUNDS and Special
Events Funds for the Festival in the amount not to exceed of Sixty Thousand and No/100
Dollars ($60,000.00) as follows:
(a) All elements relating to the stage rental including, but not limited to,
lighting, sound and other expenses as requested;
(b) Equipment Rental, including but not limited to, tents, tables, chairs, props,
ice truck, lights, generators, miscellaneous supplies;
(c) Promotion expenses for promoting the City and tourism and the hotel
industry, including but not limited to, ads, website, public appearances, and signage;
(d) Performing arts and entertainment, to pay and acquire the services of
various forms of performing arts including but not limited to accommodations and support
expenses; and
(e) Security costs for the Festival.
2.2 Pirate Days shall provide to the City accounting records, receipts, transactions and
reports, including audit reports, related to the grant of HOT FUNDS and Special Events Funds
on the following:
(a) Monthly upon receipt of funding from City;
(b) The first Monday one week after the event;
(c) Thirty (30) days after the event;
(d) A final report within sixty (60) days after the event including a detailed
line item accounting of the grant funds; and
(e) Pirate Days should obtain receipts for all spending, and if receipts cannot
be obtained, Pirate Days should vouch for the expenditures by stating why receipts are not
available. Pirate Days should procure signed written contracts with all performers. Pirate Days
should also provide a detailed accounting of revenues and expenditures for operating the Festival
FUNDING AGREEMENT- PAGE 2
besides providing the accounting of the grant funds. Pirate Days shall make said records
available for inspection and copying by the City during normal business hours, with sufficient
notice.
2.3 City agrees to provide a grant of HOT FUNDS and Special Events Funds to the
Pirate Days for the purposes set for the herein in an amount not to exceed Sixty Thousand and
No/100 Dollars ($60,000.00), as follows:
(a) All elements relating to the stage rental including, but not limited to,
lighting, sound and other expenses as requested;
(b) Equipment Rental, including but not limited to, tents, tables, chairs, props,
ice truck, lights, generators, and miscellaneous supplies;
(c) Promotion expenses for promoting the City and tourism and the hotel
industry, including but not limited to, ads, website, public appearances, and signage;
(d) Performing arts and entertainment, to pay and acquire the services of
various forms of performing arts including but not limited to accommodations and support
expenses; and
(e) Security costs for the Festival.
2.4 City agrees to provide to Pirate Days for its use during the Festival a City stage.
2.5 Pirate Days agrees to acquire at Pirate Days sole expense within thirty (30) days
of the Effective Date of this Agreement a commercial crime/fidelity bond, or other performance
bond or insurance in a form acceptable to the City Manager, and in the amount of Sixty
Thousand and No/100 Dollars ($60,000.00) which properly protects the City and guarantees
performance under this Agreement.
2.6 Pirate Days agrees, as a condition of receipt of the grant, to hold the Festival
within the city limits of the City.
2.7 City agrees to waive any fees associated with the usage of the Park.
2.8 Pirate Days shall make appropriate arrangements to be able to report to the City
regarding the number of room nights consumed for those attending this event.
2.9 Pirate Days should purchase insurance to properly protect the City from any
liabilities arising out of the Festival. Said insurance contracts should be provided to the City.
FUNDING AGREEMENT- PAGE 3
ARTICLE III
Termination and Recapture
3.1 Termination Events. This Agreement shall terminate upon any one of the
following:
(a) by written agreement of the parties;
(b) by either party in the event the other party breaches any of the terms or
conditions of this Agreement and such breach is not cured within thirty (30) days after written
notice thereof,
(c) by City, if any subsequent Federal or State legislation or any decision of a
court of competent jurisdiction declares or renders this Agreement invalid, illegal or
unenforceable;
herein;
(d) by Pirate Days, if the City fails to provide funding for the purposes recited
(e) by City, if Pirate Days fails to use all of the funds for the purposes
provided in Sections 2.1 and 2.3 of this Agreement; and
(f) by City, if Pirate Days fails to provide required timely accounting of the
use of HOT FUNDS and Special Events Funds as required in Section 2.2 of this Agreement.
3.2 Recapture. In the event of termination under Section 3.1 of this Agreement, the
non-defaulting party shall give written notice to the other party of any default, and the defaulting
party shall have thirty (30) days to cure said default. Should said default remain uncured as of the
last day of the applicable cure period, and the non-defaulting party is not otherwise in default, the
non-defaulting party shall have the right to immediately terminate this Agreement, enforce
specific performance as appropriate, or maintain a cause of action for damages caused by the
event(s) of default. In the event Pirate Days defaults and is unable or unwilling to cure said
default within the prescribed time period, the Grant of HOT FUNDS and Special Events Funds
in the amount of Sixty Thousand and No/100 Dollars ($60,000.00) shall become immediately
due and payable by Pirate Days to City. Further, in the event that the HOT FUNDS and Special
Events Funds are not used for the Festival as provided herein, then Pirate Days shall return any
unused funds paid by the City for the Festival.
ARTICLE IV
Miscellaneous Provisions
4.1 Amendment. This Agreement may only be amended by the mutual written
agreement of the parties.
4.2 Applicable Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, and all obligations of the parties created hereunder
FUNDING AGREEMENT - PAGE 4
are performable in Denton County, Texas. Venue for any action arising under this Agreement shall
lie in the state district courts of Denton County, Texas.
4.3 Assignment. The terms and conditions of this Agreement are binding upon the
successors and permitted assigns of the parties hereto. This Agreement may not be assigned
without the express written consent of the City Manager and City Council.
4.4 Binding Obligation. This Agreement shall become a binding obligation on the
signatories upon execution by all signatories hereto. Pirate Days warrants and represents that the
individual or individuals executing this Agreement on behalf of Pirate Days has full authority to
execute this Agreement and bind Pirate Days to the same. City warrants and represents that the
individual executing this Agreement on its behalf has full authority to execute this Agreement
and bind it to the same.
4.5 Caption Headings. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions of the Agreement.
4.6 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original and all of which shall constitute one and the same
document.
4.7 Effective Date. The effective date of this Agreement shall be the date of the later
to execute this Agreement by Pirate Days and City.
4.8 Entire Agreement. This Agreement is the entire Agreement between the parties
with respect to the subject matter covered in this Agreement. There is no other collateral oral or
written Agreement between the parties that in any manner relates to the subject matter of this
Agreement, except as provided in any Exhibits attached hereto.
4.9 Legal Construction. In the event any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect other provisions, and it is the
intention of the parties to this Agreement that in lieu of each provision that is found to be illegal,
invalid, or unenforceable, a provision shall be added to this Agreement which is legal, valid and
enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or
unenforceable.
4.10 Notice. Any notice required or permitted to be delivered hereunder shall be
deemed received when sent by United States mail, postage pre-paid, certified mail, return receipt
requested, addressed to the party at the address set forth with the signature of the party.
4.11 Time is of the Essence. Time is of the essence in the performance of this
Agreement.
4.12 Undocumented Workers. Pirate Days certifies that Pirate Days does not and will
not knowingly employ an undocumented worker in accordance with Chapter 2264 of the Texas
FUNDING AGREEMENT-PAGE 5
Government Code, as amended. If during the Term of this Agreement, Pirate Days is convicted
of a violation under 8 U.S.C. § 1324a(f), Pirate Days shall repay the amount of the public
subsidy provided under this Agreement plus interest, at the rate of six percent (6%), not later
than the 120th day after the date the City notifies Pirate Days of the violation.
[The Remainder of this Page Intentionally Left Blank]
FUNDING AGREEMENT-PAGE 6
EXECUTED this day of Mmc 12011.
PIRATE DAYS OF TEXAS, INC.,
A Texas nonprofit corporation
By:
Name:
Title: Date: c_ „ 2 c i
EXECUTED this day of March, 2011.
CITY OF THE COLONY, TEXAS,
A Texas home-rule municipality
By:
owell, City Manager
T
ylo
Date xecuted:
ATTEST:
a ~
`d
B
y:
4Christie Wilson, City Secretary
APPROVED AS TO FORM AND LEGALITY:
w~
By:
Jeff Moor, , City Attorney
FUNDING AGREEMENT-PAGE 7
PIRATE DAYS' ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was ackn wled ed before me on the day of ,
2011, by RZI 7) t' I , j of the Pirate Days of Texas,
Inc., a Texas nonpr fit corporation, on behalf of said corporation.
Notary Public, State of Texas
My Commission expires:
LISA CAE HENDERSON
* MY COMMISSION EXPIRES
October 1, 2012
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the _ day of rrQ'j') ,
2011, by Troy Powell, City Manager of the City of The Colony, Texas, a Texas home-rule
municipality, on behalf of said municipality.
Notary Public, State of Texas
My Commission Expires:
LISA CAEHENDERSON
My COMMISSION EXPIRES
J October 1, 2012
FUNDING AGREEMENT-PAGE 8