Ordinance No. 15,951ORDINANCE NO. 15,951
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING A MANAGEMENT SERVICES AGREEMENT WITH PHILIPPIANS
2:3 CONSULTING TO PERFORM AQUATICS MANAGEMENT SERVICES FOR
THE OPERATION AND ENHANCEMENT OF PIRATES BAY WATERPARK AND
CALYPSO COVE; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN
AMOUNT NOT TO EXCEED FOUR -MILLION, FOUR -HUNDRED, TWENTY -
THOUSAND DOLLARS ($4,420,000.00) FOR EACH OF THE FIRST TWO YEARS OF
THE AGREEMENT; MAKING OTHER PROVISIONS RELATED THERETO; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section l : That the City Council of the City of Baytown, Texas, hereby authorizes and directs
the City Manager to execute and the City Clerk to attest to a Management Services Agreement with
Philippians 2:3 Consulting ("P2:3") to perform aquatics management services for the operation and
enhancement of Pirates Bay Waterpark and Calypso Cove. A copy of said agreement is attached hereto as
Exhibit "A" and incorporated herein for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to P2:3 in an
amount not to exceed FOUR -MILLION, FOUR -HUNDRED, TWENTY -THOUSAND DOLLARS
($4,420,000.00) for each of the first two years of the agreement in accordance with the agreement authorized
in Section I hereinabove.
Section 3: That pursuant to the provisions of Texas Local Government Code Annotated
§252.048, the City Manager is hereby granted general authority to approve any change order involving a
decrease or an increase in costs of FIFTY THOUSAND AND NO1100 DOLLARS ($50,000.00) or less,
provided that the original contract price specified in Section 2 hereof may not be increased by more than
twenty-five percent (25%) or decreased by more than twenty-five percent (25%) without the consent of the
contractor to such decrease.
Section 4: This ordinance shall take effect inunediately from and after its passage by the City
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City ouncil of the City of
Baytown this the 24" day of October, 2024.
NDON CAPETILL(I Mayor
EST:
i ° o
ANGEL ACKSON, "Glty Cie rk% \; o' e)
(Af-EH,OVED AS TO FOR ,: „L'0 F .I
SCOTT LEMONDJ City Attorney R: Ordinances and Resolutions\Ordinance Drafts2024-10-24 P23-Aquatics mgmt agt.doex
Exhibit "A"
AQ ATIC FACILITY MANAGEMENT AGREEMENT
THIS AQUATIC F ILITY MANAGEMENT AGREEMENT (the "Agreement") is made and
entered into as of O tober 1, 2024, by and between the CITY OF BAYTOWN, a home -rule
mwuciP ality located Harris and Chambers Counties, Texas ("Owner"), and PHILIPPIANS 23
MANAGEMENT, L C, a Texas limited liability company ("P2:3").
RECITALS:
A. P2:3 and its a filiated companies are engaged in the ownership, management, and operation
of aquatic fac 'ties.
B. Owner owns Pirates Bay Waterpark, a waterpark located at 5300 East Road AND Calypso
Cove, a wate ark located at 2428 West Main ("Aquatic Facilities"), together with the
Improvement (as defined below) in Baytown, Texas.
C. Owner desires to utilize the services and experience of P2:3 in connection with the
management =d operation of the Aquatic Facilities (as defined below), and P2:3 desires
to render suc4 services, upon the terms and conditions set forth in this Agreement.
NOW, THEREFO , in consideration of the mutual promises and covenants herein contained,
ere Owner and P2:3 hy agree as follows:
1. Defm*itions-
As used herein the f*owing terms shall have the respective meanings indicated below:
,Affiliated Fities -- all aquatic facilities ojv ned, managed, or operated by P2:3 throughout
the world (includingt.ithout limitation, if designated as such by P2:3, aquatic facilities operated by
an Affiliate of P2:3).
Eml2loyee C&ts - all costs pertaining to employees at the Aquatic Facilities arising out of
the employment, m agement or termination of such employees during the Term, including,
without limitation, alaries, fringe benefits, bonuses, relocation costs, costs of recruitment
(including applicable agent fees), vested and non -vested benefits, vacation pay, accrued sick days,
seniority rights, seve ce, unemployment compensation, compliance with governmental laws and
regulations and ins ice, and any other similar employee liability costs and expenses.
A uatic Fad Wes -- a collective term for Pirates Bay Waterpark and Calypso Cove, the
Improvements, and t e FF&E (as defined below).
FF&E — all
Aquatic* Facilities.
tares, furnishings, furniture and equipment required for the operation of the
GAAP -- Ge4erally Accepted Accounting Principles:
Gross Reven es — "Revenues" defined in City of Baytown Aquatics Fund 502 Budget
Summary by Fund a opted as part of the City of Baytown Proposed Budget Fiscal Year Ending
September 30, 2025, approved by the City Council of the City of Baytown via Ordinance No.
15,914 on Septembet 26, 2024 and attached hereto as Exhibit A. There shall be excluded from
Gross Revenues: (i) any credits or refunds made to customers, guests or patrons; (H) any sums
and credits received by Owner for lost or damaged merchandise; (M) any sales taxes, excise taxes,
gross receipt taxes, admission taxes, entertainment taxes, tourist taxes or charges; (iv) any proceeds
from the sale or othe disposition of the Aquatic Facilities, FF&E, or other capital assets; (v) any
property and/or liab' ty insurance proceeds (other than business interruption insurance); (vi) any
condemnation award or receipts from sales of FF&E or other capital assets under the threat of
condemnation other t an any award made in a temporary taking and in the nature of an award for
lost income; (vii) an proceeds of financing or refinancing of the Aquatic Facilities; and (vffi)
amounts contributed y Owner pursuant to the terms of this Agreement, including, but not limited
to, all Revenue From General Fund described in Exhibit A. Gross Revenues shall be determined
on an accrual basis and in accordance with GAAP.
Im rovemen -- The Aquatic Facilities amenities, office buildings, Gift Shops,
concession stands, structures, aquatics attractions and improvements now located or hereafter
constructed on the land encompassing the Aquatic Facilities and all fixtures and equipment
attached to, forming a. part of and necessary or desirable for the operation of the Aquatic Facilities,
structures or improv ments (including, without limitation, heating, lighting, plumbing, sanitary
system, air-condition g, refrigeration, kitchen, and similar items) and such (i) meeting and other
guest areas, (H) commercial space, including concessions and retail shops, (iii) parking space, (iv)
storage and service areas, (v) recreational facilities and areas, (vi) grounds and gardens for
common use of gue ts, (vii) permanently affixed signage, (vifi) pools, waterslides, and other
aquatic amenities, an (ix) other facilities and appurtenances, all as presently exist on the Aquatic
Facilities or are hereafter added thereon during the Term. Capital Assets or Capital
Improvements shall mean all Improvements with a value of Twenty -Five Thousand Dollars
($25,000.00) or morel that are affixed to the Aquatic Facilities.
9perating Costs — the suns of the costs and expenses (including Employee Costs) of
maintaining, operatnig, and supervising the operation of the Facility which are not properly
capitalized but inste I
d are normally charged as a current expense under GAAP, including the
following:
(a) The c st of supplies and equipment necessary to operate the Facility;
(b) All ex enditures made for safety and security;
(c) Empl yee Costs, including but not limited to, all costs associated with training and
certifi ation;
(d) Adve ising and promotional expenses incurred directly by the Aquatic Facilities,
administrative and general expenses of the Aquatic Facilities; the cost of
Ad ' istrative Services (defined below), utility and energy costs, operating
hcense,s, fees and permits, and grounds and landscaping maintenance costs;
(e) All a penditures made for routine maintenance and repairs to keep the Aquatic
Facilities in good condition and repair,
i:Iof;agQ1_ � en&E :e'ef'3'i ��t � et�i�r�..��t N4:itippivc?J' G../ :.Lfislel%;ng �:'Y� �..�:y 3� 1.,aytGj' i �✓�. L
(f) All reimbursable expenses due to P2:3;
(g) All in urance premiums for all insurance obtained pursuant to the requirements of
Sectio 21 (other than property insurance premiums);
(h) Reasonable reserves for uncollectible accounts receivable;
(i) Credit card and travel agent commissions; and
All state taxes or impositions of any kind (with the exception of income taxes on
revenues earned by P2:3) associated with the operation of the Aquatic Facilities
and th m. performance of P2:3's obligations under this Agreement, including but not
limite to sales tax, use tax or other similar taxes, whether imposed upon Owner or
P2:3.
There shall b expressly excluded from Operating Costs the following costs and expenses
of the aquatics Facilities:
(a) Depre iation of the Improvements (if applicable) and FF&E, and amortization of
fmanc g costs, pre -opening expenses, organizational and other costs;
(b) All debt service (including interest and principal) on any indebtedness related to
the A uatic Facilities;
(c) Rent payments pursuant to any real property lease(s) under which Owner is a
Lesse ;
(d) The cost of external (third -party) audits of Facility operations and/or with respect
to O er's legal entity;
(e) Recuning and non -recurring Owner ownership costs, such as Owner's legal entity
adm�in stration and servicing fees;
(f) Real tate (if applicable) and personal property taxes and assessments (including
payments to tax escrow accounts, but without duplication with respect to taxes
subsequently paid out of such tax escrow accounts);
(g) Propeity insurance premiums.
Operating S ason — Weather permitting, P2 :3 shall operate the Aquatic Facilities:
(a) Daily between Memorial Day and Labor Day, provided that the Goose Creek
Consolidated Independent School District ("GCCISD") is out of session according
to GC I SD's School Calendar;
(b) Daily, by mutual agreement of the parties, if GCCISD's last day of school is before
Memorial Day;
(c) Week nds, by mutual agreement of the parties, if GCCISD's last day of school is
after emonal Day. Further, daily operations will commence by mutual agreement
of the parties;
(d) Weekend s between Labor Day and GCCISD's first day of school, provided that
GCCI D is out of session. Nothing in this paragraph shall prohibit the parties from
mut y agreeing that P2:3 may operate the Aquatic Facilities daily between Labor
Day d some other date.
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i•A, -an agement Agreem nt between .P' siI! pliar-:� !.3 t�..t�.ns! 1l$*.i:'.5 C-Und '`..it'1 of Ba r ifi�'�`m
p;. 3
Owner ProOrietary Information — all intellectual property relating to Owner and/or the
business affairs of Oltvner, whether owned by or licensed to Owner, including, without limitation:
(i) the Owner Marks (defined below); (ii) proprietary documents, drawings, designs, materials or
software (including, without limitation, manuals, software programs, internal correspondence,
operating standards manuals, and other items of a proprietary nature created by Owner)
specifically acquire , developed or modified in whole or in part by or for Owner, including
specifically any of the foregoing that are used in the operation of Aquatic Facilities; and (ni) any
trade secrets and co yrightable or patentable subject matter developed or acquired by Owner, or
licensed to Owner, in the ownership and operation of the Aquatic Facilities, and all intellectual
property rights relati g to any of the foregoing.
P2:3 Pro rietary Information — all intellectual property relating to P2.3, including,
without limitation: (i) the P2:3 Marks; (h) proprietary documents, materials or software (including,
without limitation, anuals, software programs, internal correspondence, operating standards
manuals, and other items of a proprietary nature created by P2:3) specifically acquired, developed
or modified in whop or in part by or for P2:3, and used in the operation of Aquatic Facilities; (iii)
guest data; and (iv) any trade secrets and copyrightable or patentable subject matter developed,
acquired, or licensed by P2:3 in the operation of the Aquatic Facilities, and all intellectual property
Tights relating to an I of the foregoing.
2. Engagement of P2:3.
(a) P2:3 represents it is an experienced manager and operator of aquatics facilities and
understands that Owner is relying on P2:3's expertise in managing aquatics facilities in entering
into this Agreement.I Subject to Owner's input and oversight, Owner hereby grants to P2:3 for the
purpose of satisfying its obligations hereunder, the right to supervise and direct the management
and operation of the Aquatic Facilities for and on the account of Owner, and P2:3 hereby accepts
said grant and agrees that it shall supervise and direct the management and operation of the Aquatic
Facilities, all pursuant to the terms of this Agreement, and Owner shall reasonably cooperate so as
to permit P2:3 to caI6 out its duties hereunder.
(b) Owner and P2:3 are parties to that certain Agreement for Aquatic Consulting
Services, dated May 15. 2024 (the "First Agreement"). This Agreement shall replace and
supersede the First Agreement.
(c) The services to be performed by P2:3 shall include those services described on
Exhibit B and ineo )orated herein, along with the following services: (i) supervise, manage and
administer daily operations and act as general manager for all functions relating to or in connection
with the Aquatic Facilities, (ii) establish, implement and amend, as needed, policies, standards and
schedules for the day-to-day management, operation and maintenance of the Aquatic Facilities and
for all matters aff JJcting guest relations; (iii) hire, train, discipline, discharge, promote and
supervise the Aquati Facilities' general manager and all Aquatic Facilities employees that directly
report to the gener 1 manager and other Aquatic Facilities employees; (iv) establish pricing
(including rates and prices for guest entry fees, cooler fees, rental and party fees and other similar
fees and charges foil fusage at the Aquatic Facilities); (v) externally communicate and coordinate
activities with Aquatic Facilities guests and devise strategies to preserve, protect and enhance
zy{ :y n •n:. r; ��: j"- r �„iit.r ri r;ir S�.i y +� .�"�.ayto'•,�: ii pg.
i` iai iageIM 1II: r-tg:�Ft?":�i t t�� .. € :,.:;; ;pans :a uens� �::;„ a
Owner's status and eputation; (vi) establish accounting and payroll procedures for the Aquatic
Facilities; (vii) rece ve, hold and disburse funds; and maintain bank accounts relating to the
Aquatic Facilities; (ilfi) establish entertainment, labor and credit policies; (ix) supervise food and
beverage services at the Aquatic Facilities including, without limitation, managing foodservice
and establishment menu items and prices; (x) supervise retail sales procedures at the Aquatic
Facilities including, without limitation, managing retail inventory selection and prices; (xi) procure
.
inventories, supplies and services for the Aquatic Facilities; (xu) assess and make
recommendations with respect to technology requirements, as well as supervise and coordinate
technology -related is sues, either directly or through third -party vend or relationships; xiii manage
special events at tfie Aquatic Facilities; and (xiv) establish and maintain marketm* and
. g
communication pro ams for guests of the Aquatic Facilities. P2:3 will inform Owner of its
marketing plan, wh re feasible. Owner is free to create its own marketing plan and marketing
.. �P
schedule related tot e Aquatic Facilities and Improvements provided the content of said marketing
plans are approved b P2:3 prior to release, which approval P2:3 shall not unreasonably withhold.
Owner agrees to use P2:3's marketing material wherever possible to promote the Aquatics
Facilities and Improvements. In the event that P2:3 enters into any lease or contract on behalf of
the Aquatic Faciliti for the use of property or the provision of services related to the Aquatic
Facilities, and this greement is terminated or expires in accordance with the terms hereof, P2 :3
upon Owner's reque t, shall assign any and all third party contracts and other agreements for the
operation of the Aquatic Facilities to the Owner or its designee (as requestedY b the Owner), and
the Owner or its des* ee shall assume all P2:3's oblipursuant ursuant to said contracts.
,,continuing;
P2:3) shall make re sonable efforts to ensure that any and alla contracts entered into by it in
connection with the Aeration of the Aquatic Facilities shall specificallyauthorize the assig ent
�►
of such contracts to i he Owner or its designee without restrictions or conditions. In the abs
ence of
such contractual Ian uage, P2:3 shall make reasonable efforts to have such contracts assig
ned to
the Owner without dd itional cost to the Owner.
(d) P2:3 acknowledges that the Aquatics Facilities and Improvements are owned b the
CityP Y
of Baytown. P :3 shall provide access to the Aquatic Facilities, Improvements,. food and
beverage outlets, an other amenities as requested by Owner for events sponsored b Owner.
Owner P. Y r.
agrees to pa for any food and beverage and merchandise utilized during an such events
and will t g Y ' take reasonable measures s to avoid use of the amenities during peak business tunes and
not to interfere with normal business or scheduled events at the an • Aquatic Facilities. If such
q y
events take place o side of normal operating hours, Owner also agrees to a for all personnel
gT pay
costs incurred outside a of normal operating hours. Owner will notify P2:3 of its intent to utilize t
. Yhe
Aquatics Facilities no less than 14 days in advance. P2:3 will make eve effort to accommodate
Owner's � r s use of the , quatics on the requested dates and times.
3. Operational Standards.
P2:3 shall c use the Aquatic Facilities to be operated in a professional manner as a first-
cla
class facility. Ope ions shall be consistent with the terms of this Agreement and the operational
. � p
standards establishe by P2:3, including but not limited to, correctingthe Roadblocks to Success
and implementing he Recommendations identified in P2:3's August 6, 2024 Pirates B
b aY
waterpark Operatio al Review, (the "operational Standards"), as the same may, from time to
M-n gerne:'`c Agreem nt bet i-aen Phiflip i-ons 2)•J Con:yid L.1:Y of 0ay-town Pa. 5
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time be modified by 2:3 as determined by P2:3 in its conunercially reasonable discretion. P2:3
shall determine and ' plement the operating policy, standards of operation, quality of service and
any other matters of ecting guest relations and the efficient management and operation of the
Aquatic Facilities. The Operational Standards shall be available to Owner and Owner and P2:3
shall mutually agree the applicability of Operational Standards to be implemented at the Aquatic
Facilities. P2:3 sha from time to time, make expenditures for capital improvements that will
ensure that the Aqu tic Facilities are operated in a professional manner as a first-class facility
consistent with the t of this Agreement and the Operational Standards.
4. Personnel.
(a) All pe sonnel employed at the Aquatic Facilities shall at all times be employees of
P2:3 or its affiliated meanies. P2:3 shall hire, train, discipline, discharge, promote and supervise
all employees at the quatic Facilities, fix their compensation and fringe benefits, and, generally,
establish and maint ' all policies relating to employment and employment benefits_ Owner
reserves the right to approve (which approval shall not unreasonably be withheld) or reject the
placement of any employee at the Aquatic Facilities and/or provide P2:3 feedback and
recommendations regarding any employee. All Employee Costs of every kind and nature
pertaining to all employees at the Aquatic Facilities arising out of employer -employee relations
shall be included in t e Operating Costs.
(b) P2:3 hall designate Jessica Kusak to serve as Project Manager under this
Agreement. Any c ange of Project Manager shall require thirty (30) days advance written
approval from the O er's Representative.
(c) The Director of Parks and Recreation or his/her designee shall act as the Owner's
Representative under this Agreement.
5. Owner's Obligations.
P2:3 shall as
applicable law to be
operate the Aquatic f
shall ensure that all r
as Manager of the )
obtained and are ma
efforts to comply wi
Owner or P2:3, and F
with such conditions
any licenses and/or 1
another, during the T
6. Authori
ist Owner with obtaining all necessary licenses and permits required by
geld by Owner at the Aquatic Facilities so as to permit P2:3 to manage and
Lcilities in accordance with the Operational Standards during the Term. P2:3
1,cessary licenses and permits required by applicable law to be held by P2:3
quatic Facilities to carry out P2:3's duties as provided herein have been
ztained by P2:3 during the Term. P2:3 shall use commercially reasonable
i any conditions set out in any such licenses and permits, whether held by
? :3 shall at all tunes operate and manage the Aquatic Facilities in accordance
nd any other legal requirements. P2:3 and OwnerwW cooperate in assigning
:rmits that either of them may hold relating to the Aquatic Facilities to one
rm and thereafter, as needed to comply with applicable laws and regulations.
Control.
Owner shall maintain the right to oversee and approve P2:3's implementation of all
operating budgets, policies, standards of operation, quality of service and any other matters
affecting guest relat' ns or the efficient management and operation of the Aquatic Facilities.
.�^ .` A� 1i�'�Q�'f ! Phi iIi�/ i✓: !s 2..3 LV n sv:ltiing ,�%��4s 1I Q,I' of ✓�,�tQ�ltf ii pg. 6
?�J��1c,a-ge�n-ienl: gr:reemi 1 G ,
Notwithstandingan hung to the contrary contained in this Agreement, if P2:3 is unable to perform
anyof its obligations under this Agreement solely because of the failure on the part of Owner to
provide funds as re fired by Section 15, such inability of performance shall not be deemed a
default on the part f P2:3 and shall not give rise to any right of termination, damages or other
remedy against P2:3
7. Term.
P2:3 shall begin its obligations hereunder for the period of time beginning on October 1,
2024 (the "Comore cement Date") and ending on September 30, 2029 (the "initial Term").
8. Renewal.
The Initial T rm shall thereafter be automatically renewed for three (3) consecutive (5)
year renewal period (each a "Renewal Period") unless either party delivers written notice to the
other that the InitialTerm or then current Renewal Period shall not be renewed, which notice must
be given at least ninety (90) days prior to the expiration of the Tern or then current Renewal Period
if applicable. The I itiai Term, together with any applicable Renewal Periods, shah be referred to
as the "Term". Ow er and P2:3 are free to increase each Renewal Period provided both parties
agree in writing 90 ays prior to the Initial Term or current Renewal Period.
9. Terminatiod UAon Sale.
Notwithstanding any provision of this Agreement to the contrary, from and after the
Commencement Date, Owner shall have the right to either terminate this Agreement, without
cause, in connection with a bona fide sale of the Aquatic Facilities to any unaffiliated and unrelated
third party, or to as ign this Agreement upon the sale pursuant to the tenns of this Section 9. In
connection with any such sale, Owner shall provide a written notice of termination to P2:3 setting
forth the anticipatedl closing date of such sale (the "Sale Termination Notice"), which date shall
be not less than nine y (90) days after P2:3's receipt of the Sale Termination Notice. Subject to the
remaining provision of this Section 9, if Owner provides a Sale Termination Notice and the sale
closes, this Agreement shall terminate on the actual closing date of the sale (regardless of the date
set forth in the Sale rennination Notice), but in no event earlier than the date set forth in the Sale
Tennnation Notice Accordingly, Owner shall have the right, upon reasonable notice to P2:3, to
extend the closing d to of such sale (and thus the effective date of termination) from that set forth
in the Sale Tenpin tion Notice based on delays in closing the sale. As a condition to any
termination under t is Section 9, Owner shall pay to P2:3 (i) all amounts due P2:3 under this
Agreement for the p6ariod of time prior to the termination, and (U**) all costs and liabilities incurred
by P2:3 as a result of Owner's changing the closing date of such sale (and thus the effective date
of termination) and r the preceding sentence. Owner shall not be required to pay a termination fee
associated with any termination pursuant to this Section 9. Owner shall not be required to obtain
P2:3's consent or a proval of any sale pursuant to which Owner exercises its right to terminate
this Agreement and r this Section 9.
10. Teration of Consultant/Non-A ro Hation of >F'undin .
P2:3 enderslot
ands and agrees that Owner is a governmental entity and that if this
Agreement should be funded for any period during any Term or any Renewal Period, all
L /:Aa -ge a iAate t �. Philippians •� o�s�fi�:t��t�?t 40• /
sums due for the remainder of the Tern or Renewal Period shall be forgiven, this Agreement
shall be automatically terminated without cause on the ninetieth (901h) day following written
notice from the Ci Manager to P2:3 of such non -appropriation, and Owner shall not be liable
for payment of the remaining sums. Furthermore, Owner may terminate this Agreement if P2:3
breaches this Agree ent after P2:3 has been provided ninety (90) days to cure said breach (the
"Cure Period"). I , following the Cure Period, the breach is left uncured, Owner shall provide
written notice to P :3 of Owner's decision terminate. A breach of this Agreement shall include,
but not be limited to, the following:
(a) Faili
(b) Faili
Pays
(c) Faili
or it.
any
(d) The
(e) The
(f) Refusing or failing to perform the work or any separable part with the diligence
that 1viD ensure its completion within the time specified in this Agreement;
Fa' ' g to complete work within the time period specified in this Agreement;
(g)
,g to pay insurance premiums, liens, claims or other charges;
,g to pay employees in accordance with the Fair Labor Standards Act, Texas
.ent of wages Act, or any other applicable law, regulation, rule, or ordinance;
.g to pay any payments due the City, state, or federal government from P2:3
principals, including, but not limited to, any taxes, fees, assessments, liens, or
ayments identified in this Agreement;
astitution of voluntary or involuntary bankruptcy proceedings against P2:3;
lissolution of P2:3
and/or
(h) The iiiolation of any provision of this Agreement.
Upon delivery of ary notice of termination required herein, P2:3 shall discontinue all services in
connection with the erformance of the Agreement. Within ten (10) days after receipt of the notice
of termination, P2: shall submit a final statement showing in detail the services satisfactorily
performed and acce ted and all other appropriate documentation required herein for payment of
services. At the s time that the final statement is tendered to the Owner, P2:3 shall also tender
to the Owner's Rep esentative all of P2:31s instruments of service, including all reports, estimates,
and any and all othe documents or work product generated by P2:3 underthis Agreement, whether
complete or not, in acceptable form and format together with all unused materials supplied by
the Owner. No final payment will be made until all such instruments of service and materials
supplied are so tendered.
If this Agreement is terminated for cause, P2:3 shall be liable for any damage to the Owner
resulting therefrom.This liability includes any increased costs incurred by the Owner in
completing P2:3's services. The rights and remedies of the Owner in this section are in addition to
anv other rights and remedies provided by law or under this Agreement.
11. CooperativS Sales and MarketingServices.
(a) P2:3 shall provide cooperative sales and marketing services (the "Cooperative Sales
and Marketing Services") to the Aquatic Facilities which shall include: (i) P2:3 system -wide sales
and marketing activ ties for the Aquatic Facilities in substantially the same manner as relates to all
Affiliated Facilities including national and international advertising, group sales promotion,
public relations and direct selling efforts for the benefit of the Aquatic Facilities and the collective
business developrn nt at all Affiliated Facilities; (ii) if applicable, participation in the P2:3 central
Aa:ri gvmiriit AC i e'nt bete et:1' S i ?v �v'fi�J ,G.� ;.LI:�Li7#. . - ;t.s i..iti 1.J�
Pp.
reservations stem w ich provides a regional, national and international toll -free system for inquiries
y P .
regarding customer b okings and for making, changing and canceling reservations at the Aquatic
b
Facilities and/or Affi 'ated Facilities; (iii) representation at aquatic facilities industry sales and trade
shows; (iv) if applic le, inclusion on, and a hyperlink from, the P2:3 world wide web site to the
Aquatic Facilities wo ld wid a web site; and (v) such other additional sales and marketing services as
P2:3 may determine i nay benefit the Aquatic Facilities and the Affiliated Facilities or develop and
promote further the 4quatic Facilities.
(b) P2:3'provision of the Cooperative Sales and Marketing Services shall be included
in the Base Manageent Fee and there shall not be another separate fee or charge.
12. Centralized
(a) Subje(
furnished to the Aqu
generally on a central
the following categc
provision of P2:3's
implementation, safer
ad ministrat ion of em
includes oversight of
"Payroll Processing"
includes administrati
which includes perio(
Facilities' operationa
includes the cost of in
Policy for P2:3 Empl(
P2:3 to the Aquatic I
(b) P2:3 r
furnished and includ
substitution for sery
performed on a grou]
made by P2:3 in cony
Costs of Centralized
the Annual Plan.
13. Procure
ices.
;t to the Annual Plan and Owner's prior written approval, P2:3 shall cause to be
.tic Facilities certain services ("Centralized Services") which are famished
)r regional basis to other Affiliated Facilities. Centralized Services shall include
ries of services: (i) "Human Resources Compliance", which includes the
standardized materials for conducting compliance training (e.g. standards
y (including OSHA compliance), and harassment prevention), recruitment, and
)loyee reward and recognition programs; (ii) "Technology Support", which
the Aquatic Facilities' information technology guidance and support; (W'')
for P2:3 Employees; (iv) "Employee and Benefit Adnninistration" which
)n of employee benefits for P2:3 Employees; (v) "Controls & Compliance"
lic oversight, through P2:3's centralized internal audit function, of the Aquatic
l and accounting control procedures; and (vi) "EPL/Fraud Insurance", which
;urance forthe Employers Practices Liability insurance and the Crime Coverage
►yees. For the avoidance of doubt, the Centralized Services shall be provided by
`acilities as long as P2:3 employs the Aquatic Facilities employees.
iy from time to time propose that additional central or regional services be
i as part of Centralized Services for the benefit of the Affiliated Facilities or in
;es now performed at individual Facilities which may be more efficiently
basis. Any modification to the foregoing list of Centralized Services shall be
actionwith the Annual Plan and submitted to Owner for prior written approval
,ervices shall be payable monthly as an Operating Cost and shall be included in
Services.
To the extent Owner makes any payments to P2:3 above the TWO -11 ILLION FIFTY-FIVE
THOUSAND DOLL($2,055.000-00) referenced in paragraph 15(b)(i) of this Agreement, P2:3
shall thereafter make purchases necessary for the operation of the Aquatic Facilities in accordance
with applicable State and/or Federal Law, and the Owner's Procurement Policy.
14. Annual P
(a) The f iscal year of the Aquatic Facilities shall be the twelve (12) month period
commencing Octobe 1 and ending September 30 (the "Fiscal Year"). P2:3 shall prepare a budget
it b�fiul �s = I Q .� r r ,.ilia:agement Agree na :~: P; �ifli pplans 2:3 Cons .3i is t5a u ti..E�;. v� � QYi�'� o.
for the Aquatic Faci13
cash flow projection i
detail, including exj
maintenance; (0) FF
business promotion;
Year and continuing
by P2:3 and submitti
Year, except that for
(60) days following t
be subject to the prio
the "Annual Plan".
shall have access to al
basis. In the event o:
resolution of such dig
accordance with the(
of expenditures com
approval from Ownei
that did not exist, or (
such amend ment(s) c
Owner's written appi
following delivery,
amendments or revis
Lies, which shall include an estimated profit and loss statement and an estimated
orFiscal Year as well as estimates of all expenditures with reasonably sufficient
►enditures for (i) property operations (including employee expenses) and
kE, operating equipment and operating supplies; (iii) advertising, sales and
nd (iv) a budget for capital replacement items. Beginning with the 2025 Fiscal
For each Fiscal Year throughout the Term, the annual budget shall be prepared
�d to Owner at least sixty (60) days prior to the commencement of the Fiscal
he 2025 Fiscal Year, P2:3 shall submit the annual budget to Owner within sixty
le execution of this Agreement by the City Manager. The annual budget shall
- written approval of Owner and, as approved, shall be referred to hereafter as
In order for P2:3 to assist Owner in the preparation of the Annual Plan, P2:3
books and records relating to Owner and the Aquatic Facilities on an as -needed
any disagreement with respect to any line item in the Annual Plan, pending the
agreement, P2:3 shall continue to manage and operate the Aquatic Facilities in
)perational Standards and the requirements set forth in this Agreement at a level
)arable to those of the preceding Fiscal Year's Annual Plan. P2:3 may seek
to amend or revise the Annual Plan to take into consideration variables or events
ould not be anticipated by P2:3, at the time the Annual Plan was prepared, with
r revision(s) to be formally implemented into the applicable Annual Plan upon
oval thereof. Owner shall indicate in writing, within thirty (30) calendar days
whether it, in Owner's sole and absolute discretion, approves any such
ons to the Annual Plan.
(b) P2:3 all use commercially reasonable efforts to comply with each Annual Plan, and
shall not deviate in any material respect from the Annual Plan, except when agreed upon by Owner
in writing. N otwith ding the provisions of the foregoing sentence, P2:3 shall be entitled to make
additional expenditures not authorized under the then applicable Annual Plan in the event of an
emergency at the Acpatic Facilities.
15. Comuensati6n.
In consideration of the management and operation of the Aquatic Facilities by P2:3, Owner
shall pay P2:3 as follows:
(a) At all times, P2:3 shall be responsible for payment of all Operating Costs, including
but not limited to, payment of capital expenses. The parties understand and agree that all Capital
Assets (whether pur teased by P2:3, Owner, or jointly purchased) shall, upon _termination of this
Agreement and/orthe Lease, become the sole property of Owner. P2:3 shall have no right to payment
of, or reimbursement for, its capital expenditures. Notwithstanding this paragraph, Owner may, at its
sole discretion, assisi with maintenance and/or payment of Operating Costs;
(b) For Years One (1) through Three (3) of this Agreement, an amount not to exceed
the sum of FOUR-IVILLION, FOUR -HUNDRED, THOUSAND DOLLARS ($4,400,,000.00) (to
be equitably pro-ratqd if this Agreement is terminated for any reason) per year as follows:
(i) An amount not to exceed the sum of FOUR-viILLION, THREE -HUNDRED,
FORTY-TH USAND DOLLARS ($4,340,000.00) per year of which the sum of T O-
MILLIONFIFTY-FIVE THOUSAND DOLLARS ($2,055.000.00) per year shall be
Ma--gemnt Agreemi nt bet'w'e i P :ill p ns 2:3 % � .��t�='3G :'; 3 '1 L�� `s�'�3' G►'•� pg.iC
available forlpersonnel costs to be drawn down as follows:
cup
(S609000.00
A. Upon execution of this Agreement — FIVE HUNDRED
THOUSAND DOLLARS ($500,000-00).
B. December 1, 2024 -- FIVE HUNDRED THOUSAND DOLLARS
($500,000.00)
C. January 1, 2025 — FIVE HUNDRED THOUSAND DOLLARS
($500po.00)
D. Remaining monies subject to schedule agreed upon at a later date
E. To the extent any draw is made before such time as the Aquatic
Facilities generate revenue for the Operating Season ("'initial
Draws"), P2:3 shall first reimburse Owner from Operating Season
revenues as revenues are generated. P2:3 shall reimburse Owner
within thirty (30) days of receiving revenue until all, Initial Draws
are fully reimbursed.
a water and sewer allowance of SIXTY -THOUSAND DOLLARS
(W) It is the intent of the parties that P2:3 shall operate the Aquatic Facilities in
such as manner as to meet the average revenue goals adopted in the City of Baytown
Aquatics Fuid 502 Budget Summary by Fund as part of the City of Baytown Proposed
Budget for a Fiscal Years ending September 30, 2022, 2023, and 2024 (the "Average
Revenue G als"). Consequently, in no year shall Owner's payment to P2:3 of the difference
between the verage Revenue Goals and the sum referenced in paragraph 15(b)(i), exceed
the sum of S X-HUNDRED, THOUSAND DOLLARS ($600,000.00), excluding the water
and sewer a owance referenced in paragraph 15(b)(M`).
(M) if Aquatic Facilities revenues exceed the sure of FOUR -MILLION, TH REE-
HtTNDRED FORTY -THOUSAND DOLLARS ($4,340,000.00), but are less than FIVE-
i IILLION POLLARS ($5,000,000.00), P2:3 shall be entitled to the difference.
(iv) if Aquatic Facilities revenues exceed the sum of FIVE -MILLION DOLLARS
(S5,000,000. 0) per year, P2:3 shall be entitled to SIXTY PER CENT (60%) of the amount
over FIVE- LLION DOLLARS (5,000,000.00) and Owner shall be entitled to FORTY
PER CENT 40%).
(c) For ears Four (4) and Five (5), and all Renewal Periods, Owner shall not be
responsible for pa ' g P2:3 any compensation, reimbursements, or costs of any kind, except that
Owner may, at its s le discretion, assist with maintenance and/or payment of Operating Costs.
16. Force VIaje*re.
(a) In Years One (1) through Three (3), P2:3 shall not be responsible for meeting the
Average Revenue Gloals if the Aquatic Facilities are closed for more than twenty-one (21)
consecutive days during the Operating Season due to war, acts of terrorism, riot or insurrection,
pandemic, or natural,disaster.
IJla gerrient r �oree i ent bet:ue ,, : P-ilippians 2:3 :,.?ns— liti- � r:'�� �,.s:� �� �.a r tG3ytil� 9• � -
(b) For Years Four (4) and Five (5), and all Renewal Periods, P2:3 shall not be
responsible for making expenditures for capital improvements if the Aquatic Facilities are closed
for more than twent -one (21) consecutive days during the Operating Season due to war, acts of
terrorism, riot or instrrection, pandemic, or natural disaster. Further, P23 shall have the right on
the thirty-first (315�) 4ay to terminate this Agreement.
17. Oneratine Costs.
In Years On (1) through Three (3), P2 :3 shall not exceed the Expenditures identified in
Exhibit A without Owner's written authorization in the form of a contract amendment.
18. Lease.
For each Tern of this Agreement, P2:3 shall pay Owner the sum of ONE and 00/100
DOLLAR (S 1.00) P r year for the lease of the Aquatic Facilities.
19. ReDorts to Owner.
In addition t any other reports to be provided to Owner hereunder, P2:3 shall cause to be
delivered to Owner t e following:
(a) With' I twenty (20) calendar days after the end of each calendar month, a
consolidated P2:3-p pared report showing the results of operation of the Aquatic Facilities for
such month and for e year to date; and
(b) Withtrep
thirty (30) calendar days after the end of each Fiscal Quarter, the following
financial statements ared by P23:
(i) Income Statement (Profit and Loss Statement): Detailing revenue,
expenses, and net income for the reporting period.
(H) Balance Sheet: Summarizing the assets, liabilities, and equity of the P2:3-
Mana ed Aquatic Facilities as of the end of the quarter.
(iii) Cash Flow Statement: Reflecting the cash inflows and outflows during the
report g period.
(c) wit thirty (30) calendar days after the end of each Fiscal Year, a consolidated
report prepared or r viewed by P2:3's accounting/finance team showing the results of operation
of the Aquatic Faci ties for such Fiscal Year.
(d) Upon reasonable advance notice by Owner to P2:3, P2:3 shall permit Owner, its
accountants, attome s. and agents to examine and make copies of P2:3's books and records
relating to the Aqua -.is Facilities (P23 reserving the right to redact the same in the event they
contain information unrelated to the _Aquatic Facilities) wherever such books and records are
located during norm 1 business hours.
20. Amusement Ride Safe
N I w ..• �►�ry �.. �(' 1J 7i'" �+ yin "r� } �y�y ¢ • .Q 1 �' . • r Y f" / . n •"� I"• + • i t �.' .^.. �i ' w 1f ,� _ i� t UL'`�. i '��. '! W
F+ dii� v7�1�itI ^�:N.G37) i:1. Ri�tVit`.• is i? .;./�i^.t. J....w% �.L.ft�:.ij�e:i� .�.�ti 1...17.E ..i
P2:3 shall t all times, comply with the Texas Amusement Ride Safety Inspection and
P
Insurance Act Chapter 2151 of the Texas Occupations Code and all related regulations, guidelines,
and orders includ' but not limited tol 28 Texas Administrative Code, Sections 5.9001-.9014,
Amusement Ride R les.
21. Insurance.
P2:3 shall procure and maintain at its sole cost and expense for the duration of the
Agreement, insurance against claims for injuries to persons or damages to property which may
e from or ' co ection with the performance of the Work hereunder by P2:3, its agents,
arise
representatives, voI teens, employees or subconsultants.
P2:3's insurmce coverage shall be primary insurance with respect to the Owner, its
officials, employees and agents. Any insurance or self-insurance maintained by the Owner, its
officials, employees or agents shall be considered in excess of P2:3's insurance and shall not
contribute to it. F her, P2:3 shall include all subconsultants, agents and assigns as additional
insureds under its policy or shall furnish separate certificates and endorsements for each such
person or entity. Ill coverages for subconsultants and assigns shall be subject to all of the
requirements stated herein.
The following is alit of standard insurance policies along with their respective minimum coverage
amounts required in this Agreement:
(i) Co ercial General Liability
■Teneral Aggregate: $2,000,000
■ducts & Completed Operations Aggregate: 54,000,000
■ Personal & ,Advertising Injury: S 1,000,000
■ Per Occurrence: S 1,000,000
■ Fire Damage: 5500,000
• Waiver of Subrogation required
• Coverage shall be broad form
■ o coverage shall be deleted from standard policy without notification of
Idividual exclusions being attached for review and acceptance.
(H) BusPornbined
ess Automobile Policy
• Single Limits: $1,000,000
• C overage for "Any Auto"
• Waiver of Subrogation required
010 Errors and Omissions
bait: $1.000,000 for this project
= C laims-made form is acceptable
■ overage will be in force for one (1) year after completion of the Agreement
■ aiver of Subrogation required
(iv} Wor ers' Compensation
• atutory Limuits
■ mployer's Liability $500,000
INIa .a.gemerit Agreenjent betweeri Phl ifippi^.:i, 2:3 Cor;s-.11t-irs cassid ���r v1 Ba tta-I.:i i•�
• NjJaiver of Subrogation required
(a) All ' surance policies provided for under this Section shall be issued by insurance
companies that hava. sound financial strength and maintain a rating of A:VIII or better in A.M.
Best's Key rating gqide, or equivalent.
(b) Insu$ance carriers must be licensed and admitted to do business in the State of
Texas.
(c) Liab�lity policies must be on occurrence form. Errors and Omissions can be on
claims -made form.
(d) Each insurance policy shall be endorsed to state that coverage shall not be
suspended, voided, anceled or reduced in coverage or in limits except after thirty (3 0) days prior
written notice by m il, return receipt requested, has been given to the City.
(e) Subj ct to Section below, P2:3 shall procure and maintain the insurance policies
covering the Aquat' Facilities set forth above, with all premiums therefor being a component of
the Operating Costs and any deductibles therefor, as applicable, to be paid by Owner in addition
to and outside of t e Operating Costs. Such policies may be procured and maintained through
P2:3's comprehensi a insurance program, provided the policies within such program otherwise
comply with all oft the requirements set forth above. All insurance procured by P2:3 shall be written
in the name of P2:3 ith the Owner named as an additional named insured and loss payee thereon,
except for worker's compensation insurance and any other insurance with respect to which it is
impractical or inap ropriate to name Owner, or any other parties as a named insured, additional
insured or loss paye�-
(f) Certificates of insurance shall be delivered to Owner, as applicable, on or before
the Commencement Date, or as soon thereafter as practicable, at the addresses shown in Section
25 below and all insurance policies shall be renewed (or replaced, as applicable) prior to their
respective expiratioji dates.
6.0 All ch policies of insurance shall also be endorsed specifically, to the fullest
extent allowed by each applicable carrier, to the effect that such policies shall not be canceled or
materially changed ithout at least thirty (30) calendar days' prior written notice to Owner and
P2:3. Each policy s all provide that the insurer shall not have any rights of subrogation to any
claim which either arty hereto may have or may acquire against the other. Neither Owner nor
P2:3 shall have any claim against the other with respect to the failure of any insurance carrier to
provide the coverag or protection placed with such carrier as contemplated by this Agreement.
(h) The
hereunder shall be u
order to maintain in:
and shall not termir
employment platfor
Facilities.
ost of procuring and maintaining all required insurance policies required
icorporated into the Operating Costs. Owner acknowledges and agrees that in
Durance on P2:3's insurance program, this Agreement (i) shall remain in effect
late or expire; and (ii) the employees shall be employed by P2:3 on P2:3's
m according to P2:3's policies and procedures as applicable at the Aquatic
N,10- 3gerrierft AgrLe. ent betwe eA- !" �i���L��.'ti:1.�i :�.� vL7i��i��i::G ��•..s �FtJ �./f '�✓�ayLVi�1'� P9. ��t
(i) If the '
quattc Facilities are insured on P2:3's insurance program, P2:3 shall provide
t ices for an claim at no cost to Owner. Therefore, in the event of a claun,
claim management s y
t ens a or utilize a public adjuster to manage any claim at the Aquatic Facilities
Owner shad no b l? �
unless it is mutually greed upon in writing by Owner and P2:3.
0) P2:3 derstands and agrees that Owner is a member of the Texas Municipal
League Inter ove ental Risk Pool ("TNMIRP"). As a result, P2:3 shall cooperate fully with all
� g
TMf,IRP and/or Tex s Department of Insurance ("TDI") requests, inquiries, investigations, or
other processes, relat or to the Aquatic Facilities, or any one of them. Upon request from Owner,
TNR,IRP or TDI, P23 shall immediately supply data, reports, materials, oral or written
statements, documen s, or other information needed by, or helpful to, T14LIRP and/or TDI.
22. Res onsibili for Claims.
(a) P2:3 shall be responsible for any losses suffered by Owner (including damages,
liabilities, settlements, costs, expenses and attorneys' fees) in connection with, or in any way
relating to, P2:3's ac ivities under this Agreement to the extent such losses result from either (i)
the negligence, Bros negligence, fraud or other misconduct by P2:3's corporate office or any
Executive Employee (including, without lvrnitation, negligence in failing either to properly hire,
train or supervise non -Executive Employees at the Aquatic Facilities or to properly administer
compliance with employment -related laws at the Aquatic Facilities), or (H) P2:3's breach of this
Agreement.
(b) By this Agreement, the Owner does not consent to litigation or suit, and the Owner
hereby expressly rev kes any consent to litigation that it may have granted by the terms of this
Agreement or any otlier contract or agreement, any charter, or applicable state law. Nothing herein
shall be construed so as to limit or waive the Owner's sovereign immunity. P2:3 assumes full
responsibility for i s services performed hereunder and hereby releases, relinquishes and
discharges the Owne , its officers, agents, and employees from all claims, demands, and causes of
action of every kind d character, including the cost of defense thereof, for any m' Jury to or death
of any person (whet er they be either of the parties hereto, their employees, or other third parties)
and any loss of or d age to property (whether the property be that of either of the parties hereto,
their employees, or her third parties) that is caused by or alleged to be caused by, arising out of,
or in connection wit P2:3's services to be performed hereunder. This release shall apply with
respect to P2:3's services regardless of whether said claims, demands, and causes of action are
covered in whole or In part by insurance.
23. Tradenames
(a) D ' the Term, the Aquatic Facilities shall be known by such tradenames as may
from time to timU
e be determined by Owner (the "Facility Tradename"). P2:3 acknowledges that
the trademarks, tradenames and/or service marks "Pirates Bay Waterpark" and/or "Calypso Cove,"
and all intellectual property relating to the Aquatic Facilities and Owner's business operations,
together with any o her names, service marks, trademarks, slogans, logos, designs or the like
owned by Owner or reated by Owner prior to, during and after the Tenn, whether now or hereafter
used in the ownership, management, and operation of the Aquatic Facilities ("Owner Marks") are
and will remain thesole property of Owner, and any access to or use thereof by P2:3 to provide
the Services and ful xll P2:3's obligations as provided herein shall be by and through a limited,
non -assignable licen a from Owner to P2:3 for use only in connection with the Aquatic Facilities
Mann-gemlerit .�` gr ems nt between Philippians 2:33 Corns .dating a - id ,it`f 0 Baytoy-in pg. ' �
and P2:3's fulfillme t of its obligations herein, which limited license will expire at the expiration
or earlier termination of the Tenn. P2:3 shall not contest the unrestricted and exclusive ownership
of the Owner Marks Dr other such intellectual property by Owner or its right to grant others licenses
to use the Owner M s, and P2:3 shall not acquire any right, title or interest of any kind or nature
whatsoever in or to the Owner Marks or the goodwill associated therewith. P2:3 shall not use the
Owner Marks without Owner's prior written approval in each instance. Owner shall have the sole
right and responsib' ty to handle disputes with third parties concerning the use of all or any part
of the Owner Mark , and P2:3 shall cooperate with Owner in all such matters. Owner need not
initiate suit against ' 'tators or infringers and may settle any dispute by grant of a license or
otherwise. P2:3 sha not initiate any suit or proceeding to enforce or protect the Owner Marks.
(b) Own r acknowledges that the trademarks and/or service marks "Philippians 2:3
Consulting" and "P2:3" are and shall continue to be the sole property of P2:3, together with any
other names, servic marks, trademarks, slogans, logos, designs, tag lines or the like owned by
P2:3 or created by 2:3 durulor the Term and are now or hereafter used in the management and
operation of the Ac
identify the Aquatic
Marks in any locatio:
shall not contest P2:;
others licenses to us4
kind or nature what
shall not use the P2:.
the sole right and re
any part of the P2:3
not initiate suit agai
otherwise. Owner sl
Nothing in this Agr(
photographing, vide
Improvements for p,
officials, or other th
a
uatic Facilities (collectively, "P2:3 Marks"), P2:3 shall have the right to
acilities as aquatics facilities managed and operated by P2:3 and use the P2:3
is at the Aquatic Facilities specifically authorized by Owner in writing. Owner
's unrestricted and exclusive ownership of the P2:3 Marks or its right to grant
the P2:3 Marks and Owner shall not acquire any right, title or interest of any
,oever in or to the P2:3 Marks or the goodwill associated therewith. Owner
Marks without P2:3's prior written approval in each instance. P2:3 shall have
;ponsibility to handle disputes with third parties concerning the use of all or
Marks, and Owner shall cooperate with P2:3 in all such matters. P2:3 need
Est imitators or infringers and may settle any dispute by grant of a license or
all not initiate any suit or proceeding to enforce or protect the P2:3 Marks.
ement is intended to exclude, restrict, or otherwise prohibit, the Owner from
graphing, or otherwise making reproductions of, the Aquatic Facilities or
aposes of marketing the waterparks or communicating with the public, City
rd persons about the Aquatic Facilities in the normal course of business.
(c) In th event of any breach by either party of the covenants set forth in this Section
23, the other party sliall be entitled to relief by injunction, and to all other available legal rights or
remedies. The provisions of this Section 23 shall survive the expiration or sooner termination of
this Agreement.
24. Indemnificakion and Release
P2:3 AGREES TO AND SHALL r4DEMNIE'Y AND MOLD HARNESS AND DEFEND
OWNER, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREINAFTER REFERRED
TO AS THE "CI Y") FROM AND AGAL-ST ANY AND ALL CLAIMS, LOSSES,
DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND,
INCLUDING AL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S
FEES, FOR INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO ANY
PROPERTY OR F R ANY BREACH OF CONTRACT TO THE EXTENT ARISING OUT
OF OR Ili' CONN CTIQN WITH ANACT OF NEGLIGENCE, INTENTIONAL TORT,
iNTELLECTUA PROPERTY VgFRINGENIENT, OR FAILURE TO PAY A
SUBCONTRACT R OR SUPPLIER COMMITTED BY THE P2:3 OR P2:31S AGENT,
i iana?e3? e �t Ag:E'E �t rt �-t;.'tlee , P Iippia� s 2:3 L.ons: ,R-i to -and :..i.1 o La;•to n pg. 16
CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH P2:3
EXERCISES COST ROL (COLLECTIVELY, CONSULTANT'S, PARTIES). IT IS THE
EXPRESS INTENTION OF THE PARTIES HERETO, BOTH P2:3 AND OWNER, THAT
THE 11NDEA1NITY PROVIDED FOR IN TIRS PARAGRAPH IS INDEMNITY BY P2:3
TO INDENLTIFY AND PROTECT OWNER FROM THE CONSEQUENCES OF
CONSULTANT'S PARTIES' OWN WILLFUL NHSCONDUCT, JOINT OR SOLE
NEGLIGENCE, A WELL AS THE CONSULTANT'S PARTIES' INTENTIONAL
TORTS, INTELLE TUAL PROPERTY INFRINGEMENTS, AND FAYLURES TO
MAKE
PAYMENTS ARI ING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
SUCH INDEMN Y SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING
FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS
THAT IS CAUSE BY OR RESULTS FROM THE NEGLIGENCE OF ANY PERSON
OTHER THAN. T CONSULTANT'S PARTIES. IN THE EVENT THAT ANY ACTION
OR PROCEEDIN IS BROUGHT AGAINST OWNER FROM WfHCH OWNER IS
LNDEN[NIFIED, :3 FURTHER AGREES AND COVENANTS TO DEFEND THE
ACTION OR PRO EEDLNG BY LEGAL COUNSEL ACCEPTABLE TO OWNER, THE
INDEMNITY PR VIDED 13EREINABOVE SHALL SURVIVE THE TERMINATION
AND/OR EXPIRA ION OF THIS AGREEMENT.
By this Agreement, Owner does not consent to litigation or suit, and the Owner hereby
expressly revolves any consent to litigation that it may have granted by the terms of this
Agreement or any other contract or agreement, any charter, or applicable state law. Nothing
herein shall be construed so as to limit or waive the Owner's sovereign immunity. P2:3
assumes full responsibility for its services performed hereunder and hereby releases,
relinquishes and d' charges the Owner, its officers, agents, and employees from all claims,
demands, and causes of action of every kind and character, including the cost of defense
thereof, for any injury to or death of any person (whether they be either of the parties hereto,
their employees, or other third parties) and any loss of or damage to property (whether the
property be that of ither of the parties hereto, their employees, or other third parties) that
is caused by or alle ed to be caused by, arising out of, or in connection with P2:31s services
to be performed her eunder. This release shall apply with respect to P2:3 Is services regardless
of whether said cWms, demands, and causes of action are covered in whole or in part by
insurance.
25. Notices.
Unless othe ise expressly provided in this Agreement, all consents, approvals, notices or
other co mmunicatio s provided for in this Agreement shall be in writing and shall be delivered
personally, or by de ositing same in the United States mail, postpaid and registered or certified,
and addressed to the party to be notified, with return receipt requested, or by delivering the same
to an officer of such party. Notice deposited in the mail as described above shall be conclusively
deemed to be effecti e, unless otherwise stated in this Agreement, from and after the expiration of
three (3) days after i is so deposited.
For the purpose of notice, the addresses of the parties shall be as follows unless properly changed
as provided for here below:
For the Owner:
AAZ-3i:oagerrief it Agreem�nt belwe er i Phil jptpians ?.J Cora-.:itlina sand City of i�i�oltoo'In P5• 317
For P2:3:
or at such other addj
the other party.
26. Governine Law,
CITY OF BAYTOWN
P.O. Box 424
Baytown, Texas 77522-0424
Attn: Jason Reynolds
Phone No. 281-420-6501
Email Jason.Reynolds ,__baytoj,�,rn.or
..
PHILIPPIANS 2:3 CONSULTING
24980 State Highway 64
Canton, Texas 75103
Attn-. Johnny B levins
Phone No. 903-312-5566
Email Johnny@j223consultants.eom
(and email addresses) as from time to time are designated by notice to
This Agreement has been made under and shall be governed by the laws of the State of
Texas. The parties further agree that performance and all matters related thereto shall be in Harris
County, Texas.
27. No Third-PArty Benefciarv.
This Agree nt shall not bestow any rights upon any third party, but rather, shall bind and
benefit P2:3 and the Owner only. No person or entity not a signatory to this Agreement shall be
entitle to rely on P2: 's performance of its services hereunder, and no right to assert a claim against
P2:3 by assignment of indemnity rights or otherwise shall accrue to a third party as a result of this
Agreement or the pe onnance of P2:3's services hereunder.
28. No Ripht to Wrbitration.
Notwithstanding anything to the contrary contained in this Agreement, Owner and P2:3
hereby agree that no claim or dispute between the Owner and P2:3 arising out of or relating to this
Agreement shall be decided by any arbitration proceeding, including, without limitation, any
proceeding under t Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable State
arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that
in the event that the caner is subjected to an arbitration proceeding notwithstanding this provision,
P2:3 consents to be j jined in the arbitration proceeding if P2:3's presence is required or requested
by the Owner of corpplete relief to be recorded in the arbitration proceeding.
29. Complete Agreement.
This Agreement represents the entire and integrated agreement between the Owner and
P2:3 in regard to the subject matter hereof and supersedes all prior negotiations, representations,
or agreements, whether written or oral, on the subject matter hereof. This Agreement may only be
,�d� ge eat Agreerr; rt i3ebw e Philippians 2:3 L.orgscf<in g a-^ =i=l/ o Ba to% -Am ��. 8
amended by written strument approved and executed by both of the parties. The Owner and P2:3
accept and agree tot ese terms.
30.
P2:3 may not sell or assign all or part interest in this Agreement to another party or parties
without the prior ex ress written approval of the City Manager of such sale or ass bgnment. The
Owner may require any records or financial statements necessary in its opinion to ensure such sale
or assignment will bT in the best interest of the Owner.
31. Headings.
The heading in this Agreement are for general reference only and do not have special
significance.
32. Severa
All parties a ee that should any provision of this Agreement be determined to be invalid
or unenforceable, su h determination shall not affect any other term of this Agreement, which shall
continue in full force and effect.
33.
In the event o� any ambiguity in any of the terms of this Agreement. it shall not be construed
for or against any pa y hereto on the basis that such party did or did not author the same.
34. Authority.
The officers Executing this Agreement on behalf of the parties hereby represent that such
officers have full a4on'ty to execute this Agreement and to bind the party he/she represents.
IN WITNESS WHE"OF, the parties have executed or caused this Agreement to be executed as
of the day and year first written above.
OANER: ! P2:3:
CITY OF BAYTO N PHILIPPIANS 2:3 CONSULTli ,G
a home -rule municipality located in a Texas limited liability company
Harris and Chamber !Counties, Texas
9
By: By:
JAS N E. REYN , City Manager IL'`NY BLE '� ,President
M�� a-gern -t Kf� C¢Ti Ot between ii Philippians 2:3 Cons:::-ingj and CilY of �'i�•ytonv'A.) .pig. 19
TO�
AMa
ANGELqACkS0NCity Clirk,.\
co
APPROVED S Q�FORNT
SCOTT LFA40ND, Pity Attomey
Management Acrreem�nt bet-oureen. P[hilippilans Cons-ult;;ng and ClIt-y of Saytoov.) Dg. 20
STATE OF §
COUNTY OF K:L'L14j.--fA§
Before me on this d yupersonally appeared Johnny B levins, in his capacity as President, on
behalf of such Phili pns 2:3 Consulting,
known to me;
proved to me on the oath of
; or
roved to me through his/her current :[ EX A 4 9 f L:R f f"
{description of identification card or other document issued by the federal
government or any state government that contains the photograph and
signature of the acknowledging person)
(check one)
to be the person whose name is subscribed to the foregoing instrument and acknowledged to me
that he executed the,same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of N4 VJrM 14�
2024.
r
00
a -Publ in and for the State ofg&xw,%.
TCAINEWcF
viweer. 't!IpnC�i��i���uit�� �t ���LC���
et1iC.s�
Pry L
AGREEMENT BETWEEN PHILLIPtANS 2:3 (Consultant) and CITY Of BAYTOWN (City)
EXHIBIT A — SCOPE OF WORK
Consultant agrees to provide comprehensive consulting services to the City for the operation
and enhancement of Pirates Bay Waterpark. These services include, but are not limited to:
1. Operational planning and resource allocation to promote successful seasons).
2. Review of recruitment, hiring, and training of personnel, including safety procedures
prior to opening of season(s).
3. Multi -season operational consulting, including financial planning, expansions, and
preventative maintenance plans.
4. Development and implementation of cash handling procedures.
5. Website and ticketing review, with recommendations for enhancements.
6. Evaluation of current facilities and financial operations, with recommendations for
improvement.
7. Assistance with the development of new attractions and enhancements to existing
attractions.
8. Food and Beverage Operations review and recommendations.
9. Ticket and program pricing recommendations.
10. Review and update of the management operator's guide.
11. Budget development assistance and financial review.
12. Coordination with industry organizations such as world Waterpark Association (WWA).
13. Marketing planning and operational programming review and recommendations.
14. Staff development and training review, including lifeguard management.
15. Crisis management and offseason maintenance oversight.
16. Regular planning sessions and minimum of monthly visits for evaluation and planning.
Additional Terms:
1. P2:3 commits to providing experienced guidance and leadership to ensure the success
of the Pirates Bay Waterpark operations.
2. Upon the City's acceptance and agreement to P2:3's recommendations, the City agrees
to provide necessary resources and support to facilitate the implementation of those
recommendations.
3. Both parties agree to maintain open communication and collaboration throughout the
duration of the agreement to achieve mutual goals.
4. P2:3 will work under the direct authority of the City and as such, will follow all direction
and final decisions of the City of Baytown.
AGREEMENT BETWEEN PHII,LIPIANS 2:3 and CITY OF SAYTOWN
EXHIBIT B -- SCOPE OF WORD
Philippians 2:3 Cons ting ("P2:3") agrees to provide comprehensive Management services to the
City of Baytown (" ner") for the operation and enhancement of Pirates Bay Waterpark and
Calypso Cove (11Aq attic Facilities"). These services include, but are not limited to:
1. Operational and Resource Savings: In Years 3-5 of this Agreement, P2:3 agrees to
deliver operational and resource savings to the Owner of $200,000 by waiving rights to City funds
not budgeted in Aq atics budget. These funds include:
o Marketin 3r, Finance, and Facilities support.
o Onboard g and offboarding processes, HIS compliance, and training.
2. Tickets: P2: will provide discounted day tickets or season passes to all residents and
employees of the Ci y of Baytown.
3, Parking Re q Venue: 30% of all revenue generated from parking fees (if any) will be
allocated directly to the Owner.
4. Retail Planning: P2:3 will handle the planning, purchasing and implementation of retail
operations.
5. Staffing Oversight: P13 will assume full responsibility for staffing concerns and
oversight, including recruiting, hiring, managing, discipline and/or termination of all Aquatic
Facilities staff.
6. Brand Con istency: The branding of Pirates Bay Waterpark and Calypso Cove will
remain unchanged, suring that citizens will not perceive a different brand, but rather experience
an enhanced and vis bly unproved facility and amenities.
7. Cost Assurance: The Owner will not incur any additional costs to fund or maintain
operations during the agreement term. During the initial 24 months of the Agreement, P2:3 and
Owner will consult n any needed "significant" repairs or replacements needed for the Aquatic
Facilities, and discus options for funding projects.
7. Capital Fu ding: Future additions to the Aquatic Facilities will be funded by Capital
Project funds, supp rted by any profits earned by the Aquatic Facilities during the Term of this
Agreement.
a In cgem nt AareeMe `ct bet -wet- : �r�hi;:�ppians 2:3) i..G�n�::Iti:n and Civ ✓s BaytoN►'� ri pg. 22
ORDINANCE NO. 15,914
AN ORDINANCE OF THE C'ITN' C'OLJNCIL (__)F THE CITY OF BAYTOWN'. TEXAS.
ADOPTING A BUDGET FOR THE ENSUING FISCAL YEAR, BE (JINNIN6
OC'TOBER 1, 2024. AND ENDING SEPTENIBER 30, 2025, IN ACCORDANCE w ITI-I
THE CHARTER AND ORDINANCES OF THE (:'ITN' OF BAVI'(MVN: AND
PROVIDING FOR THE PUBLICATION AND EFFECTIVE DATE THEREOF.
WHEREAS. the City Manager of the City of' Ba-ytown has submitted to the C'itV COLHIC11 a budget
J �.
estimate of the revenues of said City and the expenses of conductin(the affairs thereof for till' CI>>uill(l
fiscal }ear, beginning October 1, 2024, all(] endin4o September 30, 2025, and which said estimate has been
compiled from detailed information obtained front the several departments. divisions, and offices M' the
City containing all infonation as required by the Charter of the City of' Baytown; and
WHEREAS, the City Council has received said City Manager's estimate and held a public hearlll`,
thereon as provided by Section 44 of the Charter and Suction 102.006 cif the Texas Local (Jowrn111ent
Code-, and
WHEREAS, after till] and final consideration of the public hearing( and atter certain revisions to
t11C IJCUpUSed budget, It IS the o}llIllt)il of ihC C'01.111cll that the blldet as rLvltiC'C} s1lUtlld be appi'ox ed and
adopted; NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF 1-1IE: CITY OF BAYTO "-'N, "I-EXAS:
Section 1: That the budget estimate of the re\-eilLIeS of the City of B(aytowvn and the expenses
of conductinu, the affairs thereof for the ensuing fiscal year, bCklnnlnt7 October 1. )024, and endin21
September 30. 2025, as finally submitted to the City C'Ou11C11 b\the City Mana`7cr of' said City (a c(-)PN, of
which is on file in the City ('Aerk's office) be, and the swine is in all thin. s. adopted and approved as the
budget estimate of all the current expenses as well as the fixed charges against said City for the fiscal vicar
beginning October 1. 2024, and ending September 30. 1025.
Section 2- That the sum ofON1=-11UNDRED. FORT)'-T%VO tilil_t_ION. FIFE -HUNDRED,
SEVENTY-THREE "TIIOUSAND, FOUR -HUNDRED, EIGHTY-SEVEN AND 00 100 DOLLARS
(S 142,57 3,487.00) is hereby appropriated out of the General Fund for the payment of 0peratinty Expenses
and Capital Outlay of the City Government.
Section 3: That the stunt of' FIFTEEN MILLION. TWO-11UNDRED. SIXT- EIGIIT
THOUSAND, NINE: -HUNDRED, TWENTY AND 00 100 DOLLARS (S15,26.921.00) is hereby
appropriated out of the General Debt Ser\-ice Fund fur the purpose of paying, the accruinu interest and
redeeming the bands and debts as they mature on the General Debt Seri ice Fund.
Section 4: That the suns of "ITHREE-MILLION, NINETY-SIX TI1Ot'SAND. SIX -
HUNDRED, FIFTY-NINE AND 00i 100 D0LLARS (S3.096.659.00) is hereby appropriated out of the
Hutel'Motel Fund for the payment of Operatin4 Expenses and Capital Outlay of the Cite Gl verr1111erit.
Section] . That the s11111 of FOURA-111-1-ION. SIX-11C.'NDRED, NINI-'VY-1=OUR
TI-IOUSAND. EIGHT -HUNDRED, EIGHTY-FOUR AND 00, 100 DOLLARS CST.4.694.884.00) is hereby
appropriated out of the Aquatics Fund for flic payment of Operating Expcilses and Capital ()utla- of the
C lt1% Government.
Section 6- That the sum of SIXTY-T\VO \1MILL1ON, ONE -HUNDRED _F\VFN'TY-NINE
THO IISAND. ONE -HUNDRED, NINET)'-EIGHT AND 00i 100 DOLLARS (S02.12-9.198.00) is hereby
appropriated out of the Water and Sewer Fund for Operating Expenses and Capital (Xitkiy Costs.
Section 7: That the sum of FII=TEEN-MILLION, TWO-IJUNDRED, SEV NTY-TIIRI E
1HOUSAND. EIGHT -I JUINDRED. TI IIRTY-TWO AND 00/100 DOLLARS (S 15,273,832.00) is hereby
appropriated out of the Watcr and Wastc% atcr Interest and Sinkincy Fund for the purpose of paying the
accruin`, interest and redeeming the bands and debts as they mature.
sectioil K: That the Slim of NINE -MILLION, ONE -HUNDRED, FORTY-ONI_
THOUSAND. F.IG ET -HUNDRED THREE AND 001 100 DOLLARS ($9,141.903.00) is hereby
appropriated out of the Sanitation Fund for the Operating Expenses and Capital Outlay of the municipally
oxvncd Solid Waste Collection System.
Section O: That the Burn of FIVE-INIILL_ION. TI-IRFF-IILINDRF.D FOUR THOUSAND,
EIGHT -HUNDRED, SIXTY-ONE AND 00 100 DOLLARS ($5,304,861.00) is hereby appropriated out of
the Storm kk'ater Utility Fond for payment of` Operating, Expenses and Capital Outlay of the City
(._io�'eI'llnlent.
Suction 10: That the Sum of THRL:11-1-MILLION, ONE -HUNDRED FIFTY -FIFE
TH(.)US.=\ND. NINI=-IIt_1NDRE:D EIGHTY-FOUR .AND 00'100 DOLLARS ($3,155,984.00) is hereby
appropriated gilt of the Garage Fund for the Operating F:xpC11`Cti and Capital t)utlay for Municipal Garage
Scrvices System and Al:tivitics.
Section 1 1: That the Stull of FOUR-HUNDRI [). EIGHTY-THREE THOUSAND, NINE-
I1t.'NDRE:D. THIRTY-EIGHT AND 00100 DOLLARS (S493,939.00) is hereby appropriated out of the
W,-1I-e1lotisc Operations Flincl for the Operating Expenses and Capital Outlay for Central Warehouse
Activities.
Section 1 ': That the City Manager is hereby authorized to transfer any unencumbered
allpl'opriation balance or portion thereof between general classifications of expenditures within an office,
department of' a0cnc�°, in accordance with Section 68 of the Charter.
Suction 1 1: That the City Mana`er shall ha,:e the authority to increase a department's line item
budoet bv the M11UU11t equal to outstanding purchase orders as of• Scptcmber 30, 2024, to be appropriated
out cifthe I= and Balance.
Section 14: This ordinance shall be and remain in full farce and effect from and after its
passagre and approv,(11 ofthe City Council, and it shall be published once each Week for two (2) consecutive
weeks in the official newspaper of the City of I3aytovvil.
INTRODUCED. READ and PASSED by the affirmative vote of the City Council of the Cite cat
Baytown this the .216 h day of September, .71-024.
DON CAPETILLO! Mayor
TEST:
TGEL&ACKSO tk
tY
APPROVED AS TC FO
SC. -.'OTT LEN401D, City Attorney
R: Ordinance-, and Resolutions Ordinance Dralls 202-1-09-211 Ot\ Btiducl dok