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Ordinance No. 9,918ORDINANCE NO. 9918 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A LETTER AGREEMENT FOR ADVERTISING SERVICES WITH BAYTOWN OUTDOOR, INC., FOR THE BAYTOWN OUTDOOR FESTIVAL; AUTHORIZING PAYMENT IN AN AMOUNT NOT TO EXCEED TWENTY -SEVEN THOUSAND AND NO/ 100 DOLLARS ($27,000.00) FOR SERVICES UNDER THE CONTRACT; 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 and the City Clerk of the City of Baytown to execute and attest to a Letter Agreement for Advertising Services with Baytown Outdoor, Inc., for the Baytown Outdoor Festival. 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 of funds to Baytown Outdoor, Inc,, in an amount not to exceed TWENTY -SEVEN THOUSAND AND NO /100 DOLLARS ($27,000.00) for advertising services in accordance with the letter agreement. Section 3: That in addition to the amount specified in Section 2 hereof, 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 %). Section 4: 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 26th day of October, 2004. CALVIN MUNDINGER, Mayor ATTEST: G RY N. SMITr, City Clerk APPROVED AS TO FORM: ® 4�4�� t0NACIO RAMIREZ, SW, City Attorney \\Bdc2 \litigation \Karen \Files \City CounciAOrdinances\ Baytown0utdoorFestival AdvertisingLetterAgreementOrdinance .doc Putdoor, In( CITY OF BAYTOWN 2401 MARKET P.O. BOX 424 BAYTOWN,TX. 77522 -0424 IGNACIO RAMIREZ, SR. CITY ATTORNEY LEGAL DEPARTMENT Mr. Mike Beard President Baytown Outdoor, Inc. 407 West Baker Road, Suite Z Baytown, Texas 77521 JULIE K. ESCALANTE ASSISTANT CITY ATTORNEY October 19, 2004 Re: Letter Agreement for Advertising Services Dear Mr. Beard: (281) 420 -6505 FAX (281) 420 -6586 legal @baytown.org KAREN L. HORNER FIRST ASSISTANT CITY ATTORNEY This Letter Agreement ( "Agreement ") evidences the terms and conditions under which the Baytown Outdoor, Inc. (the "Corporation "), a Texas non -profit corporation, and the City of Baytown (the "City "), a municipal corporation, will perform advertising services related to the unnamed event currently referred to as the Baytown Outdoor Festival, which will be held on May 14 and 15, 2005, in the City of Baytown. I. Corporation's Obli ate 1.01 Corporation's Services. The Corporation covenants and agrees that it will promote the tourism and hotel industries in the Baytown area by advertising and conducting promotional programs to attract tourists to the Baytown area and the Baytown Outdoor Festival, and the funds paid under this Agreement shall specifically be used to pay a marketing consultant for development of a marketing plan and branding for the Baytown Outdoor Festival. The Corporation understands, warrants and agrees that all monies received by the City pursuant to Article lI hereof will be expended only for such purposes. 1.02 Corporation's Obli atg ions• Annual Budget and Reports. The Corporation understands that by accepting monies paid by the City pursuant to Article II, the Corporation has the obligation to submit its annual budget in advance of its adoption to the City Council for approval and shall make quarterly reports to the ® City Council regarding the expenditures made with the funds paid by the City in accordance with EXHIBIT A Baytown Outdoor, Inc. Page 2 Article II hereof. Said budget submission and reports shall be made in accordance with Chapter 351 of the Texas Tax Code. A. B. Duty with Respect to Funds Received. Any fee received by the Corporation pursuant to this Agreement shall be deposited in a separate account and may not be commingled with other funds. Additionally, by receiving the monies pursuant to Article II hereof, the Corporation has a fiduciary duty to the City with respect to such monies. C. Financial Records. The Corporation shall maintain complete and accurate financial records of the expenditure of funds provided by the City pursuant to this Agreement and, on request of the City Council or any other person, shall make the records available for inspection pursuant to the Public Information act, the Hotel Motel Act or other applicable statute. 1.03 Corporation's Compliance. The Corporation agrees to comply with all laws, rules or regulations of applicable governmental authorities in performing the services required herein. II. City's Obligation 2.01 City's Monetary Obligation. For the services to be performed by the Corporation, the Corporation and the City expressly understand and agree that the City shall pay a fee not to exceed Twenty Seven Thousand and No /100 Dollars ($27,000.00) to the Corporation. The parties understand and agree that the fee will not be greater than the actual expense incurred by the Corporation in performing the services required herein to be performed by the Corporation. 2.02 Due Date. The City shall pay the fee specified in Section 2.01 on or before the thirtieth (30`h) day after receiving a proper invoice therefore. However, the parties agree that any funds not used for advertising and conducting promotional programs to attract tourists to the Baytown area and the Baytown Outdoor Festival shall be refunded to the City within sixty (60) days after the conclusion of the Baytown Outdoor Festival. III. Miscellaneous Provisions 3.01 Amendment. The parties contemplate that this Agreement may be amended, or another agreement prepared, which provides for the preparation and conduct of the actual festival, under a co- sponsorship agreement or other arrangement as agreed to by the parties, and that additional funds may be paid for those additional services which may include additional marketing and advertising services. ® 3.02 Termination. Any breach of any provision of this Agreement shall constitute an Event of Default for which the City may, and the Corporation explicitly recognizes the City's right to, Baytown Outdoor, Inc. Page 3 is terminate this Agreement by giving written notice to the Corporation. Additionally, it is — __understood that the City may terminate this Agreement at any time without cause by giving written notice of such termination to the Corporation. Termination shall take effect immediately on receipt thereof by the Corporation. 3.03 Address and Notice. Unless otherwise provided in this Agreement, any notice, communication, request, reply or advice (herein severally and collectively for convenience, called "Notice ") herein provided or permitted to be given, made or accepted by any party to the other must be in writing and may be given or served by depositing the 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, or by prepaid telegram, when appropriate, addressed to the party to be notified. Notice deposited in the mail in the manner hereinabove described shall be conclusively deemed to be effective, unless otherwise stated in this Agreement, from and after the expiration of three (3) days after it is so deposited. Notice given in any other manner shall be effective only if and when received by the party to be notified. For the purpose of notice, the address of the parties shall, until changed as hereinafter provided, be as follows: If to the City, to City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 -0424 If to the Corporation, to Baytown Outdoor, Inc. Attn: President 407 West Baker Road, Suite Z Baytown, Texas 77521 3.04 Assignability. This Agreement shall bind and benefit the respective parties and their legal successors and shall not be assignable in whole or in part by any party without first obtaining written consent of the other party. 3.05 No Additional Waiver Implied. The failure of any party hereto to insist, in any one or more instances, upon performance of any of the terms, covenants or conditions of this Agreement, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants or conditions by any other party hereto, but the obligation of such other party with respect to such future performance shall continue in full force and effect. 3.06 Modification. Except as otherwise provided herein, this Agreement shall be subject to change or modification only with the mutual written consent of the parties hereto. 3.07 Independent Contractor. The relationship of the Corporation 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 Corporation's personnel decisions and shall have no other rights to internal working papers or other information or data than the City would have to any other independent contractor providing specific services. 0 Baytown Outdoor, Inc. Page 4 • 3.08 Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the parties hereto and shall not be construed to confer any rights upon any third party. The City shall never be subject to any liability in damages to any patron or contractor of the Corporation for any failure to perform its obligations under this Agreement. 3.09 Captions. The captions appearing at the first of each numbered section in this Agreement are inserted and included solely for convenience and shall never be considered or given any effect in construing this Agreement or any provision hereof, or in connection with the duties, obligations or liabilities of the respective parties hereto or in ascertaining intent, if any question of intent should arise. 3.10 Severability. The provisions of this Agreement are severable, and if any provision or part of this Agreement or its application thereto to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such provisions or part of this Agreement to other persons or circumstances shall not be affected thereby. 3.11 Merger. This Agreement embodies the entire understanding and agreement between the parties as to the services to be provided herein, and there are no prior effective representations, warranties or agreements between the parties. 3.12 Construction of Agreement. The parties agree that this Agreement shall not be construed in favor of or against any party on the basis that the party did or did not author this Agreement. 3.13 Term. This Agreement shall be in force and effect from the date of execution hereof by the City Manager until the expiration of one year, unless earlier terminated in accordance with Section 3.02. 3.14 Choice of Law and 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. 3.15 Authori . 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. 3.16 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. Should the above- referenced terms and conditions be acceptable to you, please have this letter agreement executed by the appropriate officer of the Corporation and return the same to my attention at the above - referenced address. Thereafter, I will present this document to the City 0 Baytown Outdoor, Inc. Page S Manager for execution. Should you have any questions or if I may be of any assistance, please do not hesitate to contact me. Thank you for your assistance in this matter. Sincerely, Ignacio Ramirez, Sr. City Attorney AGREED: BAYTOWN OUTDOOR, INC. / 2r V* k Be ard (D te) President ATTEST: �i 7111111, v -� (Signature) (bate') X""" Z 1,44 (Printed Name) (Title) AGREED: CITY OF BAYTOWN Gary Jackson, City Manager (Date) ATTEST: Gary W. Smith, City Clerk 0 CADocuments and SettingAignacio Ramirezft Documents \Outdoor Festival \ODFestivalAgreementRevised 10192004_.doc **AI 3utdoor, Inc. 04t.. `� * CITY OF BAYTOWN U•... 2401 MARKET P.O. BOX 424 BAYTOWN,TX. 77522-0424 (281)420-6505 FAX(281)420-6586 * * legal@baytown.org R A� IGNACIO RAMIREZ,SR. JULIE K. ESCALANTE KAREN L.HORNER CITY ATTORNEY ASSISTANT CITY ATTORNEY FIRST ASSISTANT CITY ATTORNEY LEGAL DEPARTMENT October 19, 2004 Mr. Mike Beard President Baytown Outdoor, Inc. 407 West Baker Road, Suite Z Baytown, Texas 77521 Re: Letter Agreement for Advertising Services Dear Mr. Beard: This Letter Agreement ("Agreement") evidences the terms and conditions under which the Baytown Outdoor, Inc. (the "Corporation"), a Texas non-profit corporation, and the City of Baytown (the "City"), a municipal corporation, will perform advertising services related to the unnamed event currently referred to as the Baytown Outdoor Festival, which will be held on May 14 and 15, 2005, in the City of Baytown. I. Corporation's Obligations 1.01 Corporation's Services. The Corporation covenants and agrees that it will promote the tourism and hotel industries in the Baytown area by advertising and conducting promotional programs to attract tourists to the Baytown area and the Baytown Outdoor Festival, and the funds paid under this Agreement shall specifically be used to pay a marketing consultant for development of a marketing plan and branding for the Baytown Outdoor Festival. The Corporation understands, warrants and agrees that all monies received by the City pursuant to Article II hereof will be expended only for such purposes. 1.02 Corporation's Obligations. Annual Budget and Reports. The Corporation understands that by accepting monies paid by the City pursuant to Article II, the Corporation has the obligation to submit its annual budget in advance of its adoption to the City Council for approval and shall make quarterly reports to the City Council regarding the expenditures made with the funds paid by the City in accordance with Baytown Outdoor,Inc. Page 2 Article II hereof. Said budget submission and reports shall be made in accordance with Chapter 351 of the Texas Tax Code. A. B. Duty with Respect to Funds Received. Any fee received by the Corporation pursuant to this Agreement shall be deposited in a separate account and may not be commingled with other funds. Additionally, by receiving the monies pursuant to Article II hereof,the Corporation has a fiduciary duty to the City with respect to such monies. C. Financial Records. The Corporation shall maintain complete and accurate financial records of the expenditure of funds provided by the City pursuant to this Agreement and, on request of the City Council or any other person, shall make the records available for inspection pursuant to the Public Information act, the Hotel Motel Act or other applicable statute. 1.03 Corporation's Compliance. The Corporation agrees to comply with all laws, rules or regulations of applicable governmental authorities in performing the services required herein. II. City's Obligation 2.01 City's Monetary Obligation. For the services to be performed by the Corporation, the Corporation and the City expressly understand and agree that the City shall pay a fee not to exceed Twenty Seven Thousand and No/100 Dollars ($27,000.00) to the Corporation. The parties understand and agree that the fee will not be greater than the actual expense incurred by the Corporation in performing the services required herein to be performed by the Corporation. 2.02 Due Date. The City shall pay the fee specified in Section 2.01 on or before the thirtieth (30th) day after receiving a proper invoice therefore. However, the parties agree that any funds not used for advertising and conducting promotional programs to attract tourists to the Baytown area and the Baytown Outdoor Festival shall be refunded to the City within sixty (60) days after the conclusion of the Baytown Outdoor Festival. III. Miscellaneous Provisions 3.01 Amendment. The parties contemplate that this Agreement may be amended, or another agreement prepared, which provides for the preparation and conduct of the actual festival, under a co-sponsorship agreement or other arrangement as agreed to by the parties, and that additional funds may be paid for those additional services which may include additional marketing and advertising services. 3.02 Termination. Any breach of any provision of this Agreement shall constitute an Event of Default for which the City may, and the Corporation explicitly recognizes the City's right to, Baytown Outdoor,Inc. Page 3 terminate this Agreement by giving written notice to the Corporation. Additionally, it is understood that the City may terminate this Agreement at any time without cause by giving written notice of such termination to the Corporation. Termination shall take effect immediately on receipt thereof by the Corporation. 3.03 Address and Notice. Unless otherwise provided in this Agreement, any notice, communication, request, reply or advice (herein severally and collectively for convenience, called "Notice") herein provided or permitted to be given, made or accepted by any party to the other must be in writing and may be given or served by depositing the 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, or by prepaid telegram, when appropriate, addressed to the party to be notified. Notice deposited in the mail in the manner hereinabove described shall be conclusively deemed to be effective, unless otherwise stated in this Agreement, from and after the expiration of three(3)days after it is so deposited. Notice given in any other manner shall be effective only if and when received by the party to be notified. For the purpose of notice, the address of the parties shall, until changed as hereinafter provided, be as follows: If to the City,to If to the Corporation,to City of Baytown Baytown Outdoor, Inc. Attn: City Manager Attn: President P.O. Box 424 407 West Baker Road, Suite Z Baytown, TX 77522-0424 Baytown, Texas 77521 3.04 Assignability. This Agreement shall bind and benefit the respective parties and their legal successors and shall not be assignable in whole or in part by any party without first obtaining written consent of the other party. 3.05 No Additional Waiver Implied. The failure of any party hereto to insist, in any one or more instances, upon performance of any of the terms, covenants or conditions of this Agreement, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants or conditions by any other party hereto, but the obligation of such other party with respect to such future performance shall continue in full force and effect. 3.06 Modification. Except as otherwise provided herein, this Agreement shall be subject to change or modification only with the mutual written consent of the parties hereto. 3.07 Independent Contractor. The relationship of the Corporation 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 Corporation's personnel decisions and shall have no other rights to internal working papers or other information or data than the City would have to any other independent contractor providing specific services. 1 Baytown Outdoor,Inc. Page 4 3.08 Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the parties hereto and shall not be construed to confer any rights upon any third party. The City shall never be subject to any liability in damages to any patron or contractor of the Corporation for any failure to perform its obligations under this Agreement. 3.09 Captions. The captions appearing at the first of each numbered section in this Agreement are inserted and included solely for convenience and shall never be considered or given any effect in construing this Agreement or any provision hereof, or in connection with the duties, obligations or liabilities of the respective parties hereto or in ascertaining intent, if any question of intent should arise. 3.10 Severability. The provisions of this Agreement are severable, and if any provision or part of this Agreement or its application thereto to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such provisions or part of this Agreement to other persons or circumstances shall not be affected thereby. 3.11 Merger. This Agreement embodies the entire understanding and agreement between the parties as to the services to be provided herein, and there are no prior effective representations, warranties or agreements between the parties. 3.12 Construction of Agreement. The parties agree that this Agreement shall not be construed in favor of or against any party on the basis that the party did or did not author this Agreement. 3.13 Term. This Agreement shall be in force and effect from the date of execution hereof by the City Manager until the expiration of one year, unless earlier terminated in accordance with Section 3.02. 3.14 Choice of Law and 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. 3.15 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. 3.16 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. Should the above-referenced terms and conditions be acceptable to you, please have this letter agreement executed by the appropriate officer of the Corporation and return the same to my attention at the above-referenced address. Thereafter,I will present this document to the City Baytown Outdoor, Inc. Page 5 Manager for execution. Should you have any questions or if I may be of any assistance, please do not hesitate to contact me. Thank you for your assistance in this matter. Sinc rely, Ignacio Ramirez, Sr. City Attorney AGREED: BAYTOWN OUTDOOR, INC. 1G 2V /¢— Mike Beard ate) President ATTEST: o4- Signature) (D e) /‘170-h.),-% (Printed Name) .55enoLy/14-4"51.4-e•-- (Title) AGREED: CITY OF BAYTO id//oY Gary Jac o , City Manager (Date) ATTEST:, /*144 Gary . Smith, City Clerk C:\Documents and Settings\IgnacioRamirez\My Documents\Outdoor Festival\ODFestivalAgreementRevised10192004_.doc