Ordinance No. 14,061ORDINANCE NO. 14,061
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 AGREEMENT FOR ADVERTISING
SERVICES WITH KENNETH BENITEZ, LLC, FOR PHASE H OF THE HERE, WE
GROW GIANTS CAMPAIGN; AUTHORIZING PAYMENT BY THE CITY OF
BAYTOWN IN THE AMOUNT OF SEVENTY-TWO THOUSAND TWO HUNDRED
FIFTY-SIX AND NO 100 DOLLARS ($72,256.00); MAKING OTHER PROVISIONS
RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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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 Agreement for Advertising Services
with Kenneth Benitez, LLC, for Phase II of the Here, We Grow Giants Campaign. A copy of the
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 Kenneth
Benitez, LLC, in the amount of SEVENTY-TWO THOUSAND TWO HUNDRED FIFTY-SIX AND
NO1100 DOLLARS ($72,256.00) for 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 TWENTY-FIVE THOUSAND AND NO,/ 100 DOLLARS ($25,000.00) or less,
provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five
percent (25%).
INTRODUCED, READ, and PASSED by the affirmative vote of the City Council of the City of
Baytown, this the 111h day of April, 2019.
BRANDON CAPETILLO, Mayor
ATT T:
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O�epY7°'f°°°�° F
Al�,
LETICIA BRYSCH City erk ° u'
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APPROVED AS TO FORM:
NACIO RAMIREZ, SR., Cit : ttorney
R-AarenTiles\City Council Ordmances\2019\April l l \AdvertismgAgreement.doc
Exhibit "A"
Agreement for Advertising Services
STATE OF TEXAS §
COUNTY OF HARRIS §
THIS AGREEMENT is made between the City of Baytown, Texas, a municipal corporation (the
"City"), and Kenneth Benitez LLC, a Texas limited liability company (the "Producer').
RECITALS
WHEREAS, the majority of the boundaries of the Goose Creek Consolidated Independent School
District ("GCCISD") fall within the incorporated limits of the City of Baytown; and
WHEREAS, the City desires to partner with GCCISD to elevate the prestige of GCCISD with
prospective families, current residents and area business; and
WHEREAS, the City has determined that by contracting With the Producer to increase the City's
lifestyle perception, the City will have a competitive advantage in attracting new residents and businesses
to the City of Baytown;
NOW THEREFORE, the Producer and the City, in consideration of the foregoing recitals and the
mutual covenants stated herein, agree as follows-.
1. City's Obligations,
1.01 The City shall pay the Producer to perform the services specified herein the amount of
SEVENTY-TWO THOUSAND TWO HUNDRED FIFTY-SIX AND NO1100
DOLLARS ($72,256.00). Payment shall be due as follows.
Execution of the Agreement by the City Manager
$14,OW.00
Principal Photography
$29,128.00
Completion and acceptance of Services by the City Manager
$29,128.00
Total Amount Due
$72,256.00
1.02 The City shall assist the Producer in order to showcase GCCISD and the City in order to
successfully complete the GCCISD television/video campaign (the "Campaign"). When
desired by the City for incorporation into the Campaign, the City shall perform asset
research and acquisition, including historic photos, talent, high -resolution logos, and
restricted locations, at its sole cost and expense.
1.03 The City grants to the Producer the right to use the names, designs, illustrations, logos
and trademarks of the City in connection with the services to be performed herein;
provided, however, that the Producer shall be bound by any restriction to which the City
is bound or to which the City may hereinafter impose.
1.04 The City Manager shall have the authority, in his sole discretion, to approve and accept
the deliverables; provided that such approval shall not be unreasonably withheld.
2 Producer's Obligations.
101 Subject to Section 2.03, the Producer shall perform the following for the Campaign,
which will be completed and delivered by digital file on or before July 31, 2019-
a.
meet with the City and GCCISD to brainstorm and receive input regarding their
requirements for the Campaign;
b.
deliver two concept directions, each including one TV/video script;
c_
revise the campaign concepts, with a maximum of two (2) rounds of revisions,
based upon input received from the City and GCCISD; provided, however, in
order to complete a round of revisions, all revisions of the City and GCCISD
must have been incorporated into the round;
d.
perform pre -production (storyboard, scout, pre -production planning) services in
furtherance of the Campaign;
e
perform production services, including the OBrien Interview, seven (7) school
locations, twelve (12) full setups and nine (9) moments in order to produce-
(1) one (1) :60 live action spot;
(2) four (4) :15 social media contents;
(3) still photography, including four (4) key frames verticalfhorizontal
portraits and fifty (50) production frames; and
(4) two (2) :15 audio only contents
for the Campaign (collectively the "Deliverables");
f.
perform post- production services, including editing and sound design of the
television/video portion of the Campaign;
g1
provide the, Deliverables to the City for review and comment;
h
repurpose the Deliverables with a maximum of two (2) rounds of revisions, based
upon input received from the City and GCCISD; provided, however, in order to
complete a round of revisions, all revisions of the City and GCCISD must have
been incorporated into the round; and
I.
submit the final Deliverables in a digital file format acceptable to the City and
GCCISD.
2.02 The services specified in Section 2.01 shall include, to the extent applicable, the
following;
➢
shoot coordination,
Y
producing,
➢
one -day live -action shoot,
➢
directing,
A
sound design,
➢
art direction,
➢
custom music,
9
creative direction,
D
location/tech scout,
➢
brand supervision,
➢
director of photography,
➢
stock music,
➢
gaffer,
➢
data recording,
➢
1-ton truck,
➢
editing,
D
key grip,
D
visual effect,
➢
stylist,
A
color correction,
➢
grip,
➢
motion graphics,
➢
cinema/camera/lens package,
➢
video Conforming,
➢
light package,
➢
back-up and storage,
➢
craft services,
b
approval uploads,
➢
camera support,
➢
high resolution video file delivery
➢
wardrobe/props,
for the television production,
➢
incidentals,
➢
sync audio,
Advertising Services Agreement. Page 2
D television and video uploads companies, and
for up to five station/media ➢ still photographs on shoot day
2.03 The Producer will obtain the City of Baytown's written approval of the content of all
Campaign deliverables, whether video, audio or print, before broadcasting or other
dissemination.
2.04 The City owns all rights, title and interest in and to the products which are the subject of
this Agreement, including all copyrights therein, as well as all exposed negatives,
positives, outtakes and clips. City grants to Producer a royalty -free, nonexclusive,
assignable, and irrevocable license to reproduce, publish or otherwise use, and to
authorize others to use the final product produced or any portions thereof as a result of
this Agreement. The Producer agrees to provide City with copies of all licenses and
rights to use any copyrighted material included in the final product of this agreement.
Producer will make sure that all such copyrighted material used in the final product will
be useable by City for all purposes as a part of the final product and that such use will be
royalty -free.
Term.
The germ of this Agreement shall begin on the date signed by the City Manager and shall continue
in full force and effect until the services are completed by the Producer and accepted by the City.
4.. General Conditions.
4.01 Termination.
a. The City, besides all other rights or remedies it may have, shall have the right to
terminate this Agreement with or without cause upon ten (10) days' written notice
from the City Manager to the Producer of the City's election to do so. Should the
City terminate this Agreement prior to the services being performed, the City
shall be entitled to a refund for those services yet to be performed.
b. The Producer shall have the right to terminate this Agreement for cause if the
City breaches any term of this agreement and fails to cure or remedy that failum
within fifteen (15) days after a written notice of the failure is received by the
City. Upon termination, the City shall be entitled to a refund for those services
yet to be performed
402 Any notice required to be given under this Agreement or any statute, ordinance, or
regulation, shall be effective when given in writing and deposited in the United States
mail, certified mail, return receipt requested, or by hand -delivery, addressed to the
respective parties as follows:
City
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
Producer
Kenneth Benitez LLC
Attn: Manager
2603 Fenwood Rd
Houston, TX 77005
4,03 Neither the City nor the Producer shall sell, assign, or transfer any of its rights or
obligations under this Agreement in whole or in part during the term hereof.
Advertising Services Agreement, Page 3
4.04 Failure of either party hereto to insist on the strict performance of any of the agreements
herein or to exercise any rights or remedies accruing thereunder upon default or failure of
performance shall not be considered a waiver of the right to insist on and to enforce by an
appropriate remedy, strict compliance with any other obligation hereunder to exercise any
right or remedy occurring as a result of any future default or failure of performance.
4.05 Throughout the term of this Agreement, Producer shall maintain the following insurance
coverage for work performed or services rendered under this Agreement. Said insurance
shall cover all persons involved in the production whether such persons are paid
employees or volunteers. Producer's insurance coverage shall be primary insurance with
respect to City, its officials, employees and agents, who shall be named as additional
insureds. Any insurance or self-insurance maintained by City, its officials, employees or
agents shall be considered in excess of producer's insurance and shall not contribute to it.
The following is a list of standard insurance policies along with their respective minimum
coverage amounts required in this Agreement to be maintained by Producer and any of its
subcontractors during the term hereof:
1. Commercial General Liability
General Aggregate: $2,000,000
➢ Per Occurrence: $1,000,000
➢ Products & Completed Operations Aggregate $1,000,000
➢ Personal & Advertising Injury: $1,000,000
D Coverage shall be broad form CGL
b No coverage shall be deleted from standard policy without notification of
individual exclusions being attached for review and acceptance.
➢ Waiver of Subrogation required
2. Business Automobile Policy (BAP)
➢ Combined Single Limits: $2,000,000
Coverage for "Any Auto"
➢ Waiver of Subrogation required
3. Workers' Compensation: Statutory Limits
> Employer's Liability: $1,000.000
D Waiver of Subrogation required
Upon execution of this Agreement, Producer shall file with City valid Certificates of
Insurance and endorsements acceptable. to City meeting all of the requirements herein.
Additionally, the following shall be applicable to the insurance provided by Producer-
D Insurance carrier must have an A.M. Best Rating of A: VII or better_
D Only insurance carriers licensed and admitted to do business in the State of Texas
will be accepted.
D Liability policies must be on occurrence form.
D Each insurance policy shall be endorsed to state that coverage shall not be
suspended, voided, canceled or reduced in coverage or in limits except after
thirty (30) days' prior written notice by certified mail, return receipt requested,
has been given to City.
➢ City and its officers and employees are to be added as Additional Insured to
liability policies
Advertising Services Agreement, Page 4
➢ Upon request, and without cost to City, certified copies of all insurance policies
and/or certificates of insurance shall be furnished to City
➢ All insurance required under this section shall be secured and maintained in a
company or companies satisfactory to City.
4.06 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
Contract or any other contract or agreement, any charter, 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 Producer assumes full responsibility for its services performed
hereunder and hereby releases, relinquishes and discharges the City, 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 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 Producer's services to be performed
hereunder. This release shall apply with respect to the Producer's services regardless of
whether said claims, demands, and causes of action are covered, in whole or in part, by
insurance. This release shall have no application to claims, demands and causes of
actions resulting from the sole, direct negligence of the City.
4.07 Notwithstanding anything to the contrary contained in this Agreement, the City and the
Producer hereby agree that no claim or dispute between the City and the Producer arising
out of or relating to this Agreement shall be decided by any arbitration proceeding,
including, without limitation, any proceeding under the 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 City is subjected to
an arbitration proceeding notwithstanding this provision, the Producer consents to be
joined in the arbitration proceeding if the Producer's presence is required or requested by
the City of complete relief to be recorded in the arbitration proceeding.
408 This Agreement shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas, regardless of the place of its execution or
performance. The place of making and the place of performance for all purposes shall be
Baytown, Harris County, Texas,
4.09 All parties agree that should any provision of this Agreement be determined to be invalid
or unenforceable, such determination shall not affect any other term of this Agreement,
which shall continue in full force and effect.
4.10 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.
4.11 This Agreement contains all the agreements of the parties relating to the subject matter
hereof and is the full and final expression of the agreement between the parties. This
Agreement shall not be amended or modified without the express written consent of both
parties hereto.
Advertising Services Agreement, Page 5
4.12 The Producer, in performing the services hereunder, shall comply with all applicable
federal, state, and local laws, rules and regulations.
4.13 This Agreement may be executed in one or more counterparts and by facsimile signature,
each of which shall be deemed original, and all of which together will constitute one and
the same instrument.
4.14 The officers executing this Agreement on behalf of each party hereby confirm that such
officers have full authority to execute this Agreement and to bind the party he/she
represents,
[Signature page to follow]
Advertising Services Agreement. Page 6
EXECUTED ON this the _ day of .2019.
CITY OF BAYTOWN
By:
RICHARD L. DAVIS, City ]Manager
ATTEST-
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
EXECUTED ON this the �- day of A P t' I
_ ., 2019.
Now, I C;vn7,rtb-2,
(Printed Name)
N�i�
(Title)
KENNETH BENITEZ LLC
By; -
(Printed Name)
(Title)
NOEMI GONZALEZ
?t4' = Notary Public State of Texas
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y'�i..tt'``� Notary ID 12888888-1
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Advertising Services Agreement. Page 7