Ordinance No. 13,263ORDINANCE NO. 13,263
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO AN ECONOMIC DEVELOPMENT
AGREEMENT FOR TOURISM AND PROMOTION SERVICES WITH ECONOMIC
ALLIANCE HOUSTON PORT REGION TO ENHANCE AND PROMOTE TOURISM
AND THE CONVENTION AND HOTEL INDUSTRY IN THE CITY OF BAYTOWN
AND ITS VICINITY; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN
AN AMOUNT NOT TO EXCEED TEN THOUSAND AND NO' 100 DOLLARS
($10,000.00); 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 1: 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 an Economic Development Agreement
with Economic Alliance Houston Port Region to enhance and promote tourism and the convention and
hotel industry in the City of Baytown and its vicinity. A copy of said agreement is attached hereto,
marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Economic
Alliance Houston Port Region in an amount not to exceed TEN THOUSAND AND NO 100 DOLLARS
($10,000.00) for promotional and advertising services in accordance with the Agreement authorized in
Section 1 hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by FIFTY THOUSAND AND NO/ 100 DOLLARS ($50,000.00) or less, provided
that the amount authorized in Section 2 hereof may not be increased by more than twenty -five percent
(259"
Section 4: This ordinance shall take effect immediately and and after its passage by the
City Council of the City of Baytown. 1�
INTRODUCED, READ and PASSED by the affirmative}/ot of the City Council of the City of
Baytown this the 25th day of August, 2016. �4
ATTE
LETICIA BRYSCH, City UA y • ~~'•y ��
APPROVED AS TO FORM: N
NM0i0a
cTChNACIO RAMIREZ, SR., C t Attorney
R:',Karen %Files ^,City Council Ordinances\2016\August 25 EconomicAllianceHoustonPortRegionOrdinance .doc
Exhibit "A"
ECONOMIC DEVELOPMENT SERVICES AGREEMENT
FOR TOURISM AND PROMOTION SERVICES
2016-2029
THIS Economic Development Services Agreement for Tourism and Promotion Services
( "Agreement") is made and entered into by and between the Economic Alliance Houston Port Region,
a Texas non - profit corporation, (hereinafter the "Economic Alliance "), and the City of Baytown, a
home -rule municipal corporation (the "City") for the purposes described herein.
WHEREAS, the Economic Alliance is a non - profit corporation organized to promote economic
development with an emphasis on performance in the southeast portion of Harris County and
specifically has undertaken a tourism development project — the San Jacinto Texas Historic District;
and
WHEREAS, the City of Baytown has enacted a hotel occupancy tax for the purposes provided
In Chapter 351 of the Texas Tax Code; and
WHEREAS, Section 351.101(a) of the Texas Tax Code authorizes the City to use revenue from
Its municipal hotel occupancy tax to promote tourism and the convention and hotel Industry by
advertising and conducting solicitations and promotional programs to attract tourists and convention
delegates or registrants to the municipality or its vicinity; and
WHEREAS, the City desires to participate in cooperative projects with the Economic Alliance
through the San Jacinto Texas Historic District in order to enhance and promote tourism and the
convention and hotel industry in the City and its vicinity; and
WHEREAS, the Economic Alliance is qualified and willing to perform such functions;
NOW THEREFORE, in consideration of the covenants and conditions stated herein and in
consideration of the mutual benefits that will accrue to each of the Economic Alliance and the City
(collectively the "Parties"), as well as to the citizens of the City of Baytown, Texas, the Parties have
agreed and do hereby agree as follows:
ARTICLE I
Qualifications of the Economic Alliance
The Economic Alliance represents that:
a. the Economic Alliance is a non -profit entity that is authorized to promote tourism in Harris
County and is currently in good standing with the State and Federal government;
b. the Economic Alliance is engaged in an on -going effort to attract tourists to East Harris
County through the development of the San Jacinto Texas Historic District and other
projects; and
c. the Economic Alliance hereby agrees to participate in joint projects and coordinate its
activities with the City in an effort to reduce duplication of services and to enhance
cooperation regarding tourism development and specifically Project Stars.
Economic Development Services Agreement. Page 1
ARTICLE II
Scope of Services
2.01 For and in consideration of the payment by the City to the Economic Alliance, the
Economic Alliance agrees to use such hotel tax funds for advertising and conducting
solicitations and promotional programs to attract tourists to the City In a manner that
directly enhances and promotes tourism and the convention and hotel industry. To that end,
the Economic Alliance will provide to the City of Baytown the following services:
a. Promote or advertise the City of Baytown and its surrounding area to attract
conventions, visitors and businesses;
b. Present Baytown In the marketing materials and programs of the Economic
Alliance, including its regional website and the San Jacinto Texas Historic District;
c. Provide copies of Economic Alliance publications;
d. Invite City officials and staff to all events, workshops or forums organized and /or
hosted by the Economic Alliance;
e. Reserve one voting membership position on the Board of Directors of the
Economic Alliance for a designee of the Baytown Chamber of Commerce; and
f. Reserve one voting membership position on the Board of Directors of the
Economic Alliance for a designee of the City of Baytown; and
g. Perform such other duties as may be agreed upon between the Parties from time
to time in writing.
2.02 The Economic Alliance agrees to demonstrate strict compliance with the record keeping and
apportionment limitations Imposed by Sections 351.101(f), 351.103 and 351.104 of the Texas Tax
Code, as applicable. The Economic Alliance shall not utilize hotel occupancy tax funds for any
expenditure which has not been specifically documented to satisfy the purposes set forth In Sections
2.01 hereinabove.
2.03 The Economic Alliance shall prepare and submit to the City Manager of the City an annual
budget for approval by the City Council, for such operations of the Economic Alliance funded by hotel
occupancy tax revenue. This budget shall specifically Identify proposed expenditures of hotel tax
funds by the Economic Alliance. Based upon the budget, the City should be able to audit specifically
the purpose of each individual expenditure of hotel occupancy tax funds from the separate account
relating to hotel tax funds. The City shall not pay to the Economic Alliance any hotel tax revenues
unless a budget has been approved in writing by the City Council authorizing the expenditure of
funds. The Economic Alliance acknowledges that the approval of such budget by the City Council
creates a fiduciary duty In the Economic Alliance with respect to the hotel occupancy tax funds paid
by the City to the Economic Alliance under this Agreement. The Economic Alliance shall expend hotel
tax occupancy funds only in the manner and for the purposes specified in this Agreement and in the
budget as approved in writing by the City Council.
2.04 The Economic Alliance shall maintain any hotel tax funds paid to the Economic Alliance by
the City in a separate account and shall not commingle such funds with any other money.
Economic Develooment Semites agreement Page 2
2.05 The Economic Alliance shall maintain complete and accurate financial records of each
expenditure of the hotel occupancy tax funds made by the Economic Alliance. These funds shall be
classified as restricted funds for audited financial purposes, and may not be used for contracted
services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance
written request of the City Manager or his designee, the Economic Alliance shall make such financial
records available for inspection and review and shall provide copies of the same if so requested. The
Economic Alliance understands and accepts that all such financial records, and any other records
relating to this Agreement shall be subject to the Texas Public Information Act, as hereafter
amended, and the Local Government Records Act, as amended.
2.06 After initial receipt of the hotel occupancy tax funds, the Economic Alliance shall furnish to
the City an annual report, Including:
(1) a completed financial report,
(2) a list of the expenditures made or copies of the invoice or receipts with regard to hotel
occupancy tax funds pursuant to TEX. TAX CODE 351.101(c), and
(3) A copy of all financial records (e.g. copies of front and back cleared checks or bank
statements, and other relevant documentation).
The Economic Alliance shall prepare and deliver all reports to the City Clerk in a form and
manner approved by the City Manager or his designee. The Economic Alliance shall respond
promptly to any request from the City Manager or his designee for additional information
relating to the activities performed under this Agreement.
2.07 Thirty (30) days after the end of each year of this Agreement and at such other times as may
be requested by the City Manager, the Economic Alliance will furnish to the City a performance
report of Its work underthis Agreement which shall reflect overall activities conducted, expenditures
made pursuant to this Agreement, and other information as may be required by the City.
ARTICLE III
Term
3.01 Subject to Section 3.02 and Article V, this Agreement is for the period beginning July 1, 2016
and ending June 30, 2019.
3.02 It is expressly understood and agreed by both the Economic Alliance and the City that any
term of this Agreement beyond the first calendar year Agreement is contingent upon funds being
appropriated by the City Council of the City for services to be provided pursuant to this Agreement.
Should funds not be appropriated, this Agreement shall become null and void without further notice
and both parties shall be relieved of any and all obligations hereunder after the expiration of the
period for which funds were appropriated, with the exception of the liabilities and obligations
assumed by the Economic Alliance herein.
ARTICLE IV
Terms of Payment and Service Reporting
Economic Development Services Agreement Page 3
4.01 Subject to Section 4.04 of this Agreement the City agrees to pay the Economic Alliance an
amount not to exceed THIRTY THOUSAND AND NO /100 DOLLARS ($30,000.00) over a three -year
contract period, billed in annual installments of TEN THOUSAND AND NO /100 DOLLARS ($10,000.00).
Such payment shall be made from hotel occupancy tax revenues. The parties understand and agree
that the City's obligation hereunder shall not be greater than the actual expense incurred by the
Economic Alliance in performing the services required hereunder.
4.02 The Economic Alliance shall submit three annual billing statements to the City, each for TEN
THOUSAND AND NO /100 DOLLARS ($10,000.00), within thirty (30) days of July 1, 2016, July 1, 2017
and July 1, 2018.
4.03 The City shall process such statements and make payment within thirty (30) days after
receiving a proper invoice therefor.
4.04 The parties understand and agree that any funds not used for advertising and conducting
promotional programs to attract tourists to the Baytown area In accordance with this Agreement in
any given year shall be refunded to the City within fifteen (15) days after the conclusion of each such
year.
ARTICLE V
Termination
5.01 Either party may terminate this Agreement upon ten (10) days' written notice for any or no
reason.
5.02 Either party may terminate this Agreement upon thirty (30) days' written notice upon default
by the other party. Default by a party occurs if the party fails to perform or observe any of the terms
and conditions of this Agreement required to be performed or observed by that party. Should a
default occur, the party against whom the default has occurred has the right to terminate all or part
of its duties under this Agreement as of the thirtieth (30th) day following the receipt by the defaulting
party of a notice describing the default and intended termination, provided: (1) the termination is
Ineffective if within the thirty -(30) day period the defaulting party cures the default or (ii) the
termination may be stayed, at the sole option of the party against whom the default has occurred,
pending cure of the default.
5.03 Should this Agreement be terminated pursuant to Section 5.01 or 5.02, within ten days from
the termination notification, the Economic Alliance shall provide a listing of expenditures that have
occurred since the annual period for which funds were last appropriated together with a final
accounting of all expenditures and tax funds on the day of termination.
Any use of remaining funds by the Economic Alliance after notification of termination and prior to
termination is conditioned upon such contractual obligations having been incurred and entered into
In the good faith performance of those services contemplated in Section 1.1, and further conditioned
upon such contractual obligations having a term not exceeding the portion of the term of this
Agreement for which funds have been appropriated.
ARTICLE VI
Miscellaneous
Economic Development Services Agreement Page 4
6.01 The relationship of the Economic Alliance to the City shall be that of an independent
contractor. The City shall have no authority to direct the day -to -day activities of any of the Economic
Alliance's employees or representatives, shall have no authority over the Economic Alliance's
decisions, and shall have no rights to ownership of internal working papers or other information or
data of the Economic Alliance, except as otherwise specifically authorized or required herein.
6.02 This Agreement shall be binding upon and Inure to the benefit of the City and the Economic
Alliance and shall not bestow any rights on any third parties.
6.03 Failure of either party hereto to insist on the strict performance of any of the provisions
hereof or failure of performance, shall not be considered a waiver of the right to insist on or enforce
by an appropriate remedy strict compliance with any other obligation hereunder, or to exercise any
right or remedy occurring as a result of any future failure of performance.
6.04 This Agreement shall be subject to and construed in accordance with the laws of the State
of Texas and of the United States of America and is performable in Harris County, Texas.
6.05 All notices required or allowed hereunder shall be given in writing and shall be deemed
delivered when actually received or on the third day following its deposit into a United States Postal
Service post office or receptacle with prepaid postage affixed thereto, and sent by certified mail,
return receipt requested, addressed to the respective party at the address set forth below, or at such
other address the receiving party may have theretofore prescribed by written notice to the sending
party:
If to BAYTOWN: CITY OF BAYTOWN
Attn: City Manager
2401 Market Street
Baytown, Texas 77520
if to the ECONOMIC ALLIANCE: ECONOMIC ALLIANCE HOUSTON PORT REGION
Attn: Chad Burke, President /CEO
203 Ivy Avenue, Ste 200
Deer Park, Texas 77536
6.06 If any of the terms, provisions, covenants, conditions or any other part of this Agreement is
held for any reason to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants, conditions or any other part of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
6.07 This Agreement contains the entire agreement of the parties, superseding all oral or written
previous and contemporaneous agreements between the Parties relating to the matters herein. Any
changes or amendments hereto must be in writing and signed by both parties.
6.08 By this Agreement, the City does not consent to litigation or suit, and the City hereby
expressly revokes any consent to litigation that it may have granted by the terms of this Agreement
or any other contract or agreement, charter provision, or applicable state law. Nothing contained
herein shall be construed In any way so as to waive in whole or part the City's sovereign immunity.
The Economic Alliance assumes full responsibility for its work performed hereunder and hereby
releases, relinquishes, discharges and holds harmless the City, Its officers, agents, and employees
from all claims, demands, and causes of action of every kind and character, including the cost of
Economic Development Services Agreement Page 5
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 either of the parties hereto, their employees, or other third parties) that is caused
by or alleged to be caused by arising out of, or in connection with the Economic Alliance's work to
be performed hereunder. This release shall apply with respect to the Economic Alliance's work
regardless of whether said claims demands, and causes of action are covered in whole or in part by
insurance.
6.09 The Economic Alliance shall not assign this Agreement without first obtaining the written
consent of the City.
6.10 The headings of this Agreement are for the convenience of reference only and shall not affect
in any manner any of the terms and conditions hereof.
6.11 In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed
for or against any party hereto on the basis that such party did or did not author the same.
6.12 The officers executing this Agreement on behalf of the Parties hereby represent that such
officers have full authority to execute this Agreement and to bind the parry he /she represents.
IN WITNESS WHEREOF, the parties hereto have executed this Contract in multiple copies,
each of which shall be deem to be an original, but all of which shall constitute but one and the
same agreement on the rt day of �3� 2016, the date of execution by the City
Manager of the City of Baytown.
ATTEST /SEAL:
By:
Name Printed: f
Title: - n
Date Signed: d .
Economic Development Services Aereemenn Page 6
ECONOMIC ALLIANCE
HOUSTON PORT REGION
By.
Name Printed: C- L.ALK is
Title: C�.�es� J—,+ h- o
Date Signed: S? &/ /(-
ATTEST /SEAL:
By:
Name Printed:
Title:
Date Signed: _
Economic Development Services Agreement Page 7
CITY OF BAYTOWN
By:
Name Printed:
Title:
Date Signed: