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Ordinance No. 7,399950914 -13 ORDINANCE NO. 7399 AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER is TO EXECUTE AND THE CITY CLERK TO ATTEST TO A RESERVATION AND SERVICE AGREEMENT WITH THE GOOSE CREEK NAVY COMMUNITY FOUNDATION, INC., FOR THE BAYTOWN BOOM TOWN BLOW OUT FESTIVAL; 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 and City Clerk of the City of Baytown to execute and attest to a Reservation and Service Agreement with the Goose Creek Navy Community Foundation, Inc., for the Baytown Boom Town Blown Out Festival. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: This ordinance shall take effect immediately 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 Council of the City of Baytown this the 14th day of September, 1995. 4& PETE C. ALF16ZO, Mayor ATTEST: EILEEN P., HALL, City Clerk APPROVED AS TO FORM: 42,-4"Q z� -<-�4 ACIO RAMIRE , SR ity Attorney 0 1 egal / council /september /9 -14 -95 authAGREEboom 0 RESERVATION AND SERVICE AGREEMENT FOR THE BAYTOWN BOOM TOWN BLOW OUT FESTIVAL STATE OF TEXAS § COUNTY OF HARRIS § This Reservation and Service Agreement, hereinafter known as "Agreement," is made and entered into this day of , 19 , by and between the City of Baytown, a municipal corporation located in Harris and Chambers Counties, Texas, hereinafter known as the "City," and Goose Creek Navy Community Foundation, Inc., a Texas non -profit corporation, hereinafter known as the "Organization." I. DEFINITIONS As used in this Agreement, the following words and phrases are defined to mean: City: means and refers to the City of Baytown, Texas, and all attendant boards, agencies, commissions and related bodies, along with their respective officers, agents and employees. City Manager: means the City Manager of the City of Baytown or his designated representative. Organization: means Goose Creek Navy Community Foundation, Inc., its volunteers, officers, directors, agents, and assigns. Representative of the Organization: means Jay M. Eshbach, II, or his designated representative. Festival: means the 1995 Boom Town Blow Out Festival, which will be held October 13 -15, 1995. Festival Site: means all of the territory which is fenced and under control of the Organization for which an admission fee is charged and which is described in Exhibit "A," which is incorporated herein by this reference for all intents and purposes. Event Security means the least security allowable at the Festival Site. This level shall have Level A: the following number of officers at the times specified below: EXHIBIT A 0 DAY OF ! NUIVMBER:OF OFFICERS REQUIRED ;'. FESTIVAL Friday 6 Officers from 1300 hrs to 2400 hrs 4 add'] officers from 1700 hrs to 2400 hrs Saturday 16 Officers from 0800 hrs to 2400 hrs 4 add' l officers from 1700 hrs to 2400 hrs Sunday 16 Officers from 1245 hrs to 1800 hrs Event Security The Chief of Security, as hereinafter defined, shall have the authority, at any Level B: time and at his sole discretion, to invoke Event Security Level B which shall mean that, in addition to the officers required under Event Security Level A, up to an additional ten (10) officers may be called to the Festival Site to perform security services. Event Security The Chief of Security, as hereinafter defined, shall have the authority, at any Level C: time and at his sole discretion, to invoke Event Security Level C which shall mean that, in addition to the officers required under Event Security Level A, up to an additional twenty (20) officers may be called to the Festival Site to perform security services. " Officer: means a certified peace officer employed by the City of Baytown in such capacity. Event Safety means the least service level for health and safety allowable at the Festival Level A: Site. At this level, the City shall have no responsibility for fire, rescue, routine first aid or other medical services beyond that which is provided by the Fire and Rescue Services and the Emergency Medical Services of the City pursuant to a 911 dispatch. Event Safety The Chief of Safety, as hereinafter defined, shall have the authority at any Level B: time and at his sole discretion, to invoke Event Safety Level B which shall mean that, in addition to the services provided under Event Safety Level A, up to an additional four (4) fire and/or emergency medical personnel may be called to the Festival Site to perform health/safety services. Event Safety The Chief of Safety, as hereinafter defined, shall have the authority at any Level C: time and at his sole discretion, to invoke Event Safety Level C which shall mean that, in addition to the services provided under Event Safety Level A, up to an additional ten (10) fire and/or emergency medical personnel may be called to the Festival Site to perform health/safety services. 2 ® Fire and/or Emergency Medical Personnel: means a certified member of the Baytown Fire and Rescue Services and /or the Baytown Emergency Medical Services. IL FESTIVAL REQUIREMENTS Equipment: The Organization shall use the equipment which is included in its Park Reservation Application or equipment of a comparable or higher quality for the performance of its activities, events, and obligations under this contract. The Organization warrants that all such equipment listed in the application is adequate for its designated use and shall be used in conformity with such use. Additionally, the Organization shall maintain or have immediate access to adequate backup equipment in order to sustain continuous operations in the event of equipment failure. The use of insufficient and/or inadequate machinery or equipment or the use of machinery or equipment in derogation of its intended use as determined by the City Manager shall be deemed a breach of this Agreement. Personnel: The Organization shall provide training and supervision of all work crews, volunteers, officers, directors, agents, and assigns at all times while performing work or services under this contract. The Organization must have a designated person on the festival Site at all times, who has the authority to respond and act on behalf of the Organization. The Representative of the Organization shall provide written documentation to the police command post of whom such designee is, where he or she will be located, and how he or she may be contacted. Notwithstanding the above, at all times during the hours of the Festival's operations, the Representative of the Organization shall be immediately available at the Festival Site. If the City, for any reason is unable to contact the Organization's designee or the Representative of the Organization, the Organization hereby agrees that any person listed as a chairman, director or project manager on the organization chart, which is attached hereto as Exhibit "B" and made a part hereof for all intents and purposes, shall have the authority to respond and act on behalf of the Organization. For each person listed on the organizational chart, the Organization shall provide a phone number where he or she may be reached during the Festival events and activities. Furthermore, the Organization shall appoint an event safety officer(s), who shall be responsible for insuring the public health, safety, and welfare of all of the rides, events, and activities of the Organization, its agents, and its subcontractors throughout the Festival Site. Litter Removal: The Organization shall be solely responsible for the collection and removal of trash and debris throughout and reasonably beyond the Festival Site. However, should the Organization employ the City to remove the trash from the Festival Site, the City may provide such service under the following terms and conditions: (a) the-Organization shall deliver all of the trash and debris to designated trash retrieval sites approved by the City for pick up; (b) all such trash shall be placed in plastic trash bags; (c) the Organization shall provide all trash drums /containers necessary to adequately dispose of and remove trash, rubbish and debris; and (d) the Organization (D 3 ® shall be responsible for all landfill fees, if any, and any other costs associated with the disposal of the trash and debris, incurred by the City. Ultimately, however, the litter removal program shall be the sole responsibility of the Organization; and such program shall be conducted and completed each day before the opening of the Festival. Inspection: The Organization acknowledges its responsibility for inspecting of the property of the City prior to submitting its Park Reservation Application and to inform itself regarding local conditions. After the execution of this contract, the Representative of the Organization in the presence of the City Manager must make an additional inspection of the areas to be used during the Festival including all parking areas. The purpose of such additional inspection shall be to provide the Organization an opportunity to inspect and document any damage to any structure, equipment, tree, etc., which was present prior to the Festival. The documentation of any equipment, tree or facility damage must be submitted to the City Manager prior to the set -up of the Festival. The failure to so submit a written list of damages observed by the Organization shall result in the presumption that no damages were found. The Organization understands and agrees that the City Manager shall inspect the Festival grounds at the end of the Festival and that the Organization shall be solely liable for any and all damages which were not documented and submitted as required by this paragraph, normal wear and tear as determined at the sole discretion of the City Manager being excepted. Such damages shall be computed as described in article XII. Events and Activities: Attached hereto is Exhibit "C," which lists and describes the Festival events and activities. The events named and described in such exhibit may not be changed or altered without the prior written consent of the City Manager. Location: The Organization must obtain the approval from the City regarding the location of the Festival Site along with the site of each event or activity, command post, security station, fire and rescue services /emergency medical services station, lost and found center, onsite communication post, public telephone service, restroom facilities, entertainment stages, and trash drums /containers. Because of the potential need for emergency services throughout the Festival Site, the approved locations, as indicated on the site plan, may not thereafter be altered without the express written approval of the City Manager. Parade: On Saturday, October 14, 1995, at 10:00 a.m. to 11:00 a.m., the Organization shall conduct an antique and art car parade. The Organization shall assemble the parade at or near the intersection of Decker Drive and Fairway and proceed down Decker Drive in an escorted procession to a point just South of service road of Loop 201. At such point, the Organization shall stage the parade. The parade shall thereafter commence at the intersection of Decker Drive and Garth Road and shall finish at the intersection of Texas Avenue and Commerce. The parade shall proceed south on Decker Drive to Texas Avenue then east on Texas Avenue. Beer Garden: The Organization hereby warrants that it will receive all appropriate licenses from the Texas Alcoholic Beverage Commission and all other appropriate governmental entities. A copy of such license(s) shall be provided to the City on or before October 9, 1995, and in no event shall the provision or sale of alcohol be had if the City has not received a copy of the appropriate 0 licences or permits. The Organization agrees to and shall assume all liability with respect to the operation and control of the Beer Garden and releases and fully discharges the City from any and all actions, causes of action, claims, demands, costs, controversies, damages, and all other liability whatsoever for any and,all personal injuries, deaths or property damages arising out of or in connection with the operation, control, and location of the Beer Garden. Traffic /Parking /Street Closures: The safety of the public and convenience of traffic shall be regarded as prime importance throughout the Festival. The Organization hereby agrees that it shall not unreasonably hinder or inconvenience travel of streets or intersecting alleys which are not located within the Festival grounds. In order to accomplish these purposes, the Organization hereby authorizes the Chief of Security or his designee to employee such force of men as is necessary to control the pedestrian or vehicle traffic outside the Festival Site and along its perimeter. Such area shall include but not be limited to the intersections of Defee and Decker, Sterling and Decker, Lobit and Decker, Garth and Decker, Memorial and Decker, Lee and Market, and Market, Decker and Texas, which is commonly referred to as Thomas Plaza. The force of men deemed necessary for pedestrian and traffic control shall include at a minimum the following personnel: DAY OF FESTIVAL: NUMBER OF OFFICERS. REQUIRED:` Friday 7 Officers from 1300 hrs to 0100 hrs (Sat.) Saturday 7 Officers from 0800 hrs to 0100 hrs (Sun.) Sunday 7 Officers from 1200 hrs to 19001-irs The Chief of Security at his sole discretion shall increase number of Officers performing pedestrian and traffic control services as needed and dictated by the number of persons and vehicles present in the areas immediately adjacent to the Festival Site. All street closures and barricades permits proposed by the Organization and contemplated by this Agreement must be secured through the appropriate permitting procedures established by the Department of Planning and Community Development. Nothing herein shall be construed as authorizing the exclusive use of any public property, not specifically reserved in this Agreement. Entertainment: Organization shall provide the necessary light, sound and stage equipment for the scheduled concerts and shall ensure that the stages are constructed /manufactured in a manner suitable for its use. Special Activities: Any special activity, including, but not limited to boat rides, helicopter rides, hot air balloon rides, train rides, horseback rides, carnival rides and any other rides sponsored by the Organization shall be operated by a person who holds the necessary licenses and/or permits to perform such services for hire. The Organization warrants and guarantees that it has obtained the operator's credentials and that the operator has experience and training in the type of activities to 0 5 be performed at the Festival. The operator(s) of all such activities shall be considered a subcontractor and must comply with all of the insurance requirements for subcontractors herein. Before any activity is performed or offered at the Festival, the Organization shall provide the City with the operator's certificates of insurance for the City's approval which shall not be unreasonably withheld. Only after the receipt and approval of the insurance certificates shall any activity be performed. All special activities shall be subject to the operational approval and supervision of the Chief of Safety or his designee. Vendors: The Organization shall require all vendors, including, but not limited to, those persons selling arts, crafts, food, merchandise and all other items or products, to submit their records to the appropriate agency for sales tax purposes. Additionally, the Organization shall require all vendors prior to the sale of any item or product to secure and produce the permits necessary to conduct business in the manner contemplated and further require the vendors to comply with all applicable health, fire, and safety codes and regulations of the city, county, state, and federal government. Vendors participating in the Festival shall be subject at any time to inspection by the City to ensure compliance with all such rules and regulations, and the City may take enforcement action, when the City, in its sole discretion, deems the same necessary. Utility Services: Except.for those utility services normally provided to users of the facilities, parks and other properties of the City, all utility services, including but not limited to water, sewer and electric power sources used for any event, booth, entertainment, ride, or service offered by the Organization shall be inspected by technician licensed in the appropriate field and shall meet the applicable City codes. Port-a -Cans: The Organization shall be solely responsible to provide an adequate number, not less than fifty (50), of port-a -cans or other similar restroom facilities throughout the Festival Site. Also, included at the site shall be at least four (4) restroom facilities specifically designed for disabled persons. The Organization shall at all times inspect and maintain such facilities to ensure reasonably sanitary conditions. Such facilities shall be serviced before the opening of the Festival on Saturday and Sunday at the sole cost of the Organization. Security: For the consideration expressed herein, the Chief of the Baytown Police Department or his designee shall be the Chief of Security for the Festival. As a part of his duties, the Chief of Security shall have such authority as is necessary in order to ensure a safe, secure festival. The Chief of Security at his sole discretion shall determine what event level security is needed and shall have the authority to obtain the adequate number of Officers in order to accomplish these purposes. Neither the City nor any Officer guarantees a safe, secure festival or a festival without incident. As such, the Organization agrees to and shall assume all liability with respect to the security of persons and property at all times, including, but not limited to, during the set -up and operation of the Festival, and releases and fully discharges the City from any and all actions, causes of action, claims, demands, costs, controversies, damages, and all other liability whatsoever for any and all personal injuries, deaths or property damages arising out of or in connection with the operation, control, and security of the Festival. 0 6 • The Organization shall be solely responsible for overnight security of the Festival Site on Thursday, Friday, and Saturday evenings after the close of the Festival until the opening of the same the following day. Nothing herein, however, with the exception of traffic and pedestrian control in areas immediately adjacent to the Festival Site as aforementioned, shall be construed so as to require the Organization to provide security outside the confines of the Festival Site. Safety: For the consideration expressed herein, the Chief of the Baytown Fire and Rescue Services or his designee shall be the Chief of Safety for the Festival. As a part of his duties, the Chief of Safety shall have such authority as is necessary in order to ensure a safe festival. The Chief of Safety at his sole discretion shall determine what event level safety is needed and shall have the authority to obtain the adequate number of Fire and /or Emergency Medical Personnel in order to accomplish these purposes. Neither the City nor Fire and/or Emergency Medical Personnel guarantees a safe festival or a festival without incident. As such, the Organization agrees to and shall assume all liability with respect to the safety of persons and property at all times, including, but not limited -to, during the set -up and operation of the Festival, and releases and fully discharges the City from any and all actions, causes of action, claims, demands, costs, controversies, damages and all other liability whatsoever for any and all personal injuries, deaths or property damages arising out of or in connection with the operation, control, and security of the Festival. Furthermore, the Organization shall provide an appropriate staging area for any apparatus and /or equipment as the Chief of Safety or his designee deems necessary for the protection of the facilities and the public. Cancellation the Festival: The City reserves the right at all times and in its sole discretion to cancel the Festival if the public health, safety, and welfare commands such result. If the Festival is canceled by the City, the Organization hereby relieves the City from all liability which may result from such premature closing of the event. Admission: The Organization shall provide, at no cost to the City, passes for all authorized officers, agents and personnel of the City to enter the Festival gates in order to perform the services contemplated herein. Post -Event Evaluation: The Organization shall conduct exit surveys regarding the Festival and shall provide a copy of such surveys and a cumulative summary of the same to the City. Additionally, any other Festival evaluation reports /documents generated by the Organization shall be tendered to the City. Tents and Structures: All installations including but not limited to tents, stages, fences, barricades and other structures shall be inspected and approved by the City to ensure compliance with all applicable codes. No tent, stage or other structure may be used until all appropriate approvals, permits, and certificates are issued. Such approvals, permits and certificates shall not be unreasonably withheld. Al Medical: The City shall have no responsibility for routine first aid or other medical services beyond that which is provided by the Fire and /or Emergency Medical Personnel pursuant to a 911 dispatch or other provision contained herein. Access to the Festival Site for emergency vehicles and other emergency services provided by the City must be free and clear of all obstructions and must be adequately maintained at all times during Festival operations. All emergency access points shall be approved and /or created by the Chief of Safety or his designee Library Facilities: The City hereby agrees to close its library services and facilities from noon on Friday until Monday 8:00 a.m. III. COMPENSATION FOR SERVICES The City shall receive, as compensation for services to be rendered under this Agreement, the following: DESCRIPTION; OF: SERVICE: .. ESTIMATED.COST OF' ;. . SERVICE` Event Security Level A -- 260 hours $ 7,800 Level B -- Up to 684 hours $20,520 Level C -- Up to 1,220 hours $36,600 Event Safety Level A -- No extra service None Level B -- Up to 136 hours $ 4,420 Level C -- Up to 340 hours $11,050 Pedestrian and Traffic Control Minimum Level $7,560 However, Organization understands and agrees that it shall be responsible for the actual costs associated with the provision of security and safety services by the City and the above - referenced figures are estimates and are provided to the Organization by the City for planning purposes only. If the City Council of the City of Baytown allocates funds in the 1995/1996 City budget for the Festival without any limitation on the use of the same, the City shall expend such funds to assist in the payment of the minimum level of pedestrian and traffic control services and/or to assist in the payment of any other services performed by the City as the City Manger may in his sole discretion direct such funds to be expended. 8 IV. INDEPENDENT CONTRACTOR 0 It is mutually understood and agreed that nothing in this Agreement is intended or shall be construed as in any way creating or establishing the relationship of partners or co- partners between the parties hereto, or as constituting the Organization as an agent or representative of the City for any purposes or in any manner whatsoever. The relationship of the Organization to the City shall be that of an independent contractor. V. HEALTH, SAFETY AND WELFARE The Organization expressly understands and agrees that at all times during the term of this contract, the City, at its sole discretion, may do all things necessary to ensure the health, safety and welfare of the its citizens. If it is necessary for the City to exercise this right in any manner and to any extent, including the termination of the Festival, the Organization shall assume all liability with respect to the termination of the Festival or any of its events and /or activities and releases and fully discharges the City from any and all actions, causes of action, claims, demands, costs, controversies, damages, and all other liability whatsoever for any and all personal injuries, deaths or property damages arising out of or in connection with such termination. VI. TIME OF THE ESSENCE Both the Organization and the City acknowledge that time is of the essence in this Agreement. VII. INDEMNITY The Organization agrees to and shall indemnify, hold harmless, and defend the City, its officers agents and employees, from and against any and all claims, losses, damages, causes of action, suits and liability of every kind, including all expenses of litigation, court costs, and attorneys' fees, for injury to or death of any person, or for any and all damages arising out of or in connection with the work done by the Organization pursuant to this Agreement, the conduct or management of the Organization's business or activities, or from any act or omission by the Organization, its agents, servants, employees, subcontractors, guests, or invitee, on or about the premises subject to this Agreement, where such injuries, death or damages are caused by the sole or joint negligence of the City and any other person or entity. It is the expressed intention of the parties hereto, both the Organization and the City, that the indemnity provided for in this paragraph is indemnity by the Organization to indemnify and protect the City from the consequences of the City's own negligence, whether that negligence is the sole or a concurring cause of the resulting injury, death or damage. In the event that any action or proceeding is brought against the City by reason of any of the above, the Organization further agrees and covenants to defend the action or proceeding by legal counsel acceptable to the City. 0 9 ® VIIL INSURANCE The Organization shall at all times during this Agreement maintain in full force and effect insurance as provided herein and which meets the minimum amounts listed below. A certificate of insurance, or a copy of the insurance policies, shall be furnished to the City and shall provide that the City shall receive thirty (30) days' prior written notice before any change or cancellation of any policy. (1) Commercial general liability : This coverage must have an aggregate of $1,000,000 with a minimum of $1,000,000 per occurrence. (2) Statutory workers' compensation for volunteers and musicians: This coverage must comply with all statutory amounts as required by Texas law and shall include a Waiver of Subrogation on behalf of the City. (3) Automobile Liability: This coverage shall have combined single limits of $500,000, or limits of $100,0005300,000 5100,000 are acceptable. All automotive coverage is to include all owned and hired autos, if applicable. (4) Liquor Liability: This coverage shall be in an amount of at least $500,000. (5) Liability insurance for boat rides, helicopter rides and hot air balloon rides: This coverage shall be in an amount of at least $1,000,000. (6) Liability insurance from all companies providing carnival rides: This coverage shalI be in an amount of at least $1,000,000. (7) Products Liability Insurance: The Organization shall provide for all food vendors insurance coverage of at least $100,000. (8) All security services utilized shall provide workers' compensation insurance in amounts as required by Texas law and shall include a waiver of subrogation on behalf of the City. (9) All policies are to be of the occurrence form. (10) Should any insurance required by this Agreement lapse, the Organization shall immediately cease all operations as of the time and date of such lapse, and shall not resume any operations until authorized in writing by the City. If the lapse period extends fifteen (15) days, this Agreement shall automatically terminate with no notice to the Organization required and the Organization shall be in breach of this Agreement. 0 10 ® (11) The City of Baytown shall be named as an ADDITIONAL INSURED on said policies of insurance. The Organization shall provide the City with a certificate evidencing the City of Baytown as ADDITIONAL INSURED for coverage after award of bid and prior to receiving an order for purchase of equipment, the beginning of the demonstration period for equipment, or initiation of contracted services. (12) All insurance carriers providing coverage should have an AM Best rating of A or higher and be licensed to do business in the State of Texas. (13) All certificates of insurance required herein shall be provided to the city as soon as practical and in no event later than October 9, 1995. IX. DEPOSIT REQUIRED Both the Organization and the City agree that the Organization will tender to the City a deposit in the form of a check in the sum of $20,000, guaranteeing faithful performance (including, but not limited to, set -up, clean -up, etc.) and payment to all persons supplying Iabor and materials or furnishing the Organization any equipment in the performance of the Contract. It is agreed that this Contract shall not be in effect until such deposit is made and approved by the City. The check shall be drawn from a depository authorized to do business in the State of Texas and insured by the Federal Deposit of Insurance Corporation. X. INSPECTION OF WORK AND FACILITIES At any time during the term of this Agreement, the City shall have the full right to inspect any and all facilities, areas, or equipment owned, leased or otherwise used by or in the care, custody, or control of the Organization. Such inspections may be related to, but are not limited to, verification of work or conditions, safety, damages, or operational interests. XI. AUDIT AND FINANCIAL REGULATIONS The City shall have the right through its agents and employees to audit and examine at all reasonable times, the Organization's books and financial and operational records which may be reasonably required by the City in order to enforce the terms of this Agreement. Financial records will be maintained with such adequacy so as to allow identification of the source of all revenue and expenditures related to this Agreement. • ® XII. LIQUIDATED DAMAGES Random checks of the Festival Site shall be carried out during the contract period at the option of the City to insure faithful performance and compliance with all the terms and conditions herein. Additionally, the City Manager will perform a final inspection of the Festival Site on Tuesday, the 17th day of October, 1995, provided, however, final inspection of the volleyball pit shall be made on the 25th day of October, 1995. At such time, the Festival Site shall be completely restored to the same or better condition of the site immediately before the Festival began, reasonable wear and tear determined at the sole discretion of the City Manager being excepted. The Organization and the City understand and agree that the failure to restore the property in a timely manner or any injury to a facility or any portion of the Festival Site will cause damage to the City and further agree that such damages cannot be accurately measured and that ascertainment of the same will be difficult. Therefore, the parties agree that for each and every calendar day the restoration or any part of the restoration of the facilities, improvements, and /or property remains uncompleted or that for each injury to any facility or improvement, the Organization agrees and promises to pay as compensation for the same a minimum of $100.00. Additionally, the City may make a claim under the Organization's public liability, property damage insurance policy in effect. However, the foregoing agreement as to liquidated damages constitutes only an agreement by the City and the Organization as to the minimum amount of damages which the City will sustain in any event by reason of damage or injury to any facility or improvement or by reason of the failure of the Organization to timely restore the Festival Site. Should the City suffer damages over and above the minimum amount specified, the City shall recover such additional amount. The City will have the right to deduct from the proceeds of the Festival the amount of any and all such damages, whether it be the minimum amount stipulated above or otherwise, or the City may recover such amount for the Organization or the sureties on its bond; all such remedies shall be cumulative and the City shall not be required to elect any nor deemed to have an election by proceeding to enforce any one remedy. /:4 WPA0118l:7uT1 The term of this Agreement shall commence on the upon the execution of this document by the City and shall remain in force for a period of time not to extend beyond the 17th day of October, 1995, unless terminated sooner by the City Manager or his designee. XV. TERMINATION (1) The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement without cause upon ten (10) days' written notice from the City Manager to the Organization of the City's election to do so. Furthermore, the City may immediately and without notice terminate this contract if the Organization breaches this Agreement. A breach of this Agreement shall include, but not be limited to, the following: 12 • (a) failing to pay insurance premiums, liens, claims or other charges; (b) failing to pay any payments due the City, State or Federal Government from the Organization or its principals, including, but not limited to, any taxes, fees, assessments, liens, or any payments identified in this Agreement; (c) the institution of voluntary or involuntary bankruptcy proceeding against the Organization; (d) the dissolution of the Organization; (e) the violation of any provision of this Agreement; and /or (f) the abandonment of the premises or any portion thereof and discontinuance of the Organization's operations, or any portion thereof. Should this occur, the City shall not be responsible for the custodial protection of merchandise, fixtures or equipment abandoned, even though it is necessary for the City to remove the same for storage or disposal. XVI. COMPLIANCE WITH RULES AND REGULATIONS The Organization shall comply with all rules, regulations, and laws of the United States of America, the State of Texas, and all laws, regulations, and ordinances of the City of Baytown as they now exist or may hereafter be enacted or amended. XVII. SALE OF INTEREST The Organization may not sell or assign all or part interest in activities to another party or parties without the express written approval of the City Manager of such sale or assignment, nor shall Organization assign any monies due or to become due to it hereunder without the previous consent of the City Manager. The City may require any records or financial statements necessary in its opinion to ensure such sale or assignment will be in the best interest of the City. XVIII. NOTICES All notices required to be given hereunder shall be given in writing either by telecopier, overnight, or facsimile transmission, certified or registered mail at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: 13 ORGANIZATION Goose Creek Navy Community Foundation, Inc. Attn: Jay M. Eshbach, II P.O. Box 855 Baytown, TX 77522 Fax No. 4 dto2- CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Fax No. 420 -6586 XIX. NON - WAIVER 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. XX. GOVERNING LAW This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City, 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. XXI. SEVERABILITY 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. 0 14 ® XXII. CONDITIONS BEYOND CONTROL Neither the City nor the Organization shall be required to perform any term, condition or covenant of this Agreement so long as performance is delayed or prevented by force majeure, which shall mean acts of God, drought, floods, material or labor restrictions by any governmental authority, and any other cause not reasonably within the control of either party in which, by the exercise of due diligence, the City or the Organization is unable to prevent or overcome. XXIII. VENUE This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City, 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. XXIV. NO RIGHT TO ARBITRATION Notwithstanding anything to the contrary contained in this Agreement, the City and the Organization hereby agree that no claim or dispute between the City and the Organization 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 Organization consents to be joined in the arbitration proceeding if the Organization's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. XXV. MISCELLANEOUS PROVISIONS This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the Organization and the City only. 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. XXVI. AUTHORITY 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 party he /she represents. • 15 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same Agreement on the day of , 1995, the date of execution by the City Manager of the City of Baytown. GOOSE EK NAVY COMM FOUN A ON, Iii: /J J#Y I4. ESHBACH, II, Pres CITY OF BAYTOWN: BOBBY ROUNTREE, City Manager ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney 0 16 STATE OF TEXAS 0 § COUNTY OF HARRIS § Before me on this day personally appeared Jay M. Eshbach, II, in his capacity as President of the Goose Creek Navy Community Foundation, Inc., on behalf of such corporation, known to me 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 , 1995. Notary Public in and for the State of Texas b:0101 blowout 0 17 • • G-3c5c C2=C.< /7- PLAYQQ0-JM J / ALFA 0 / V� TOWN OUT ..................... ............. ..... .......... .......... ......... ..................... .... ... ............. ................... - .......... ...................... 'el ....................... :.., . - ....... / 0� ............. ............ ...... !�* ....... Fr EXjilBIT A BAYTOWN CN D0'=- a052 GARD--, semv 6A.2"7' , iii V� TOWN OUT ..................... ............. ..... .......... .......... ......... ..................... .... ... ............. ................... - .......... ...................... 'el ....................... :.., . - ....... / 0� ............. ............ ...... !�* ....... Fr EXjilBIT A BAYTOWN • EXHIBIT J8 1995 BOARD OF DIRECTORS OF BOOM TOWN BLOW OUT MERLE HUNT 3417 WOODCREST BAYTOWN, TX 77521 420 -3448 TOM SANDERS 416 S. BURNET BAYTOWN, TX 77520 425 -6400 (WK) 424 -7921 (HM) HAP HICKS CIO SAN JACINTO HOSPITAL 1101 DECKER DR. BAYTOWN, TX 77520 420 -8467 BARBARA FUCCI CIO BAYCOAST MEDICAL P.O. BOX 2959 BAYTOWN, TX 77522 420 -6429 JAY M. ESHBACH, II 311 W. BAKER RD. BAYTOWN, TX 77521 428 -2712 LORI ESHBACH SMITH 311 W. BAKER RD. BAYTOWN, TX 77521 422 -6544 GARY GILL 4700 COACHMAN DR. BAYTOWN, TX 77521 383 -2411 EXT. 5479 DAVID ONDRIAS CIO CITY OF BAYTOWN 2401 MARKET BAYTOWN, TX 77520 420 -6591 (WK) 886 -4625 (PAGER) SOCORRO "CORA" MARTINEZ JANE HOWARD 3806 TRAILWOOD DR. 1507 N. 7TH BAYTOWN, TX 77521 BAYTOWN, TX 77520 427 -6655 (HM) 422 -6908 (H.C.O.C.) 422 -8302 PRESIDENT JAY M. ESHBACH, II I ST VICE PRES. MERLE HUNT 2ND VICE PRES. JANE HOWARD TREASURER SECRETARY ._ LORI ESHBACH SMITH ® EXHIBIT "C" 1. Parade 2. New Car Display 3. Hair Painting 4. Face Painting 5. Arts and Crafts 6. Helicopter Rides 7. Two stages of entertainment 8. Dunking Booth 9. Mud Volleyball 10. 3 -on -3 Basketball 11. Entertainment around Festival Site 12. Street Dance Friday and Saturday Nights 13. Beer Garden 14. Honey Money Contest 15. Guess Number of Cans the Festival Uses 16. Food 17. Free Phone Calls 18. Llama Display Area 19. Armory Display 20. Gallery Furniture Showcase 21. Booths Promoting Local High School and College Activities 22. Souvenir Sales 23. First Aid Booth 24. Blood Pressure Testing 25. Voter Information and Registration 26. Recycling Display and Information 27. Fun Run b:klh8 /cxhibitc