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Ordinance No. 10,027ORDINANCE NO. 10,027 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, MAKING A CHANGE IN THE CITY OF BAYTOWN'S FISCAL YEAR 2004 -2005 BUDGET FOR MUNICIPAL PURPOSES IN ORDER TO REPROGRAM FUNDS IN THE HOTEL OCCUPANCY TAX CONTINGENCY FUND FOR ADVERTISING SERVICES IN CONNECTION WITH THE 2005 BAYOU BOWL; AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A CONTRACT WITH THE BAYTOWN AREA/WEST CHAMBERS COUNTY ECONOMIC DEVELOPMENT FOUNDATION FOR ADVERTISING SERVICES IN CONNECTION WITH THE 2005 BAYOU BOWL; AUTHORIZING THE CITY MANAGER TO EXECUTE A LETTER AGREEMENT WITH THE BAYTOWN CHAMBER OF COMMERCE TO DEVELOP A TELEVISION ADVERTISEMENT TO BE BROADCAST DURING THE 2005 BAYOU BOWL; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT OF TWENTY -EIGHT THOUSAND AND NO 1100 DOLLARS ($28,000.00); 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 hereby changes the City of Baytown's Fiscal Year 2004 -2005 budget for municipal purposes to reprogram TWENTY - EIGHT THOUSAND AND NO /100 DOLLARS ($28,000.00) in the Hotel Occupancy Tax Contingency Fund for the advertising services, as more particularly described in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes. Section 2: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute a contract with the Baytown Area/West Chambers County Economic Development Foundation for advertising services in connection with the 2005 Bayou Bowl. A copy of said contract is attached hereto, marked Exhibit "B," and made a part hereof for all intents and purposes. Section 3: That the City Council of the City of Baytown authorizes payment from a portion of the funds reprogrammed in Section 1 hereof to the Baytown Area/West Chambers County Economic Development Foundation in an amount of TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) in accordance with the contract authorized in Section 2 hereof. Section 4: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute a letter agreement with the Baytown Chamber of Commerce to develop a television advertisement to be broadcast during the 2005 Bayou Bowl. A copy of said letter agreement is attached hereto, marked Exhibit "C," and made a part hereof for all intents and purposes. • Section 5: That the City Council of the City of Baytown authorizes payment from a portion of the funds reprogrammed in Section 1 hereof to the Baytown Chamber of Commerce in ® an amount not to exceed THREE THOUSAND AND NO /100 DOLLARS ($3,000.00) in accordance with the contract authorized in Section 4 hereof. Section 6: That in addition to the amounts specified in Sections 3 and 5 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 Sections 3 and 5 hereof may not be increased by more than twenty-five percent (25 %). Section 7: 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 10`h day of March, 2005. CALVIN MUNDINGER, Mayor ATTEST: A GC Y' W. STAITH, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, SR.Jkity Attorney 0 R:\Karen \Files \City Council \Ordinances\2005W arch IMayou Bowl AdvertisingOrdinance .doc 2 0 r� LJ CITY OF BAYTOWN HOTEL MOTEL FUND 232 BUDGET SUMMARY Personnel Services Supplies Maintenance Services Sundry Captial Outlay Contingency/Unforeseen/New Initiatives Total Hotel Motel Expenditures 3/4/2005 2:38 PM Adopted 2004 -05 Contingency Transfer Revised Budget 62,398 62,398 18,085 18,085 5,900 5,900 225,732 28,000 253,732 650 650 48,000 48,000 222,883 (28,000) 194,883 583,648 - 583,648 EXHIBIT A 2005 Hotel Motel contingency to advertising for Bayou bowl.xls • CONTRACT FOR ADVERTISING SERVICES IN CONNECTION WITH THE 2005 BAYOU BOWL STATE OF TEXAS COUNTY OF HARRIS THIS CONTRACT, which is made as of the day of March, 2005, by and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, and THE BAYTOWN AREA/WEST CHAMBERS COUNTY ECONOMIC DEVELOPMENT FOUNDATION, hereinafter called "Foundation." For and in consideration of the mutual covenants herein contained, the City and the Foundation agree as follows: Section 1. Representations and Warranties of Foundation. Foundation hereby represents and warrants as follows: a) The Foundation is engaged in an on -going effort to attract new businesses to the Baytown/West Chambers County area and to encourage the expansion of existing businesses in the Baytown/West Chambers County area. b) The Foundation covenants that it shall actively work to productively coordinate its activities with other organizations in an effort to reduce duplication of services. C) The Foundation represents and warrants that it is a non - profit economic development organization, the principal purpose of which is the promotion of economic development in the Baytown and West Chambers County area. Section 2. Services to be Provided. The Foundation shall provide the following economic development services for and on behalf of the City: 1. purchase five thirty- second advertisements on Fox Sports Southwest to be aired during the initial broadcast of the 2005 Bayou Bowl as well as any subsequent rebroadcasts and two mid -game broadcast billboards; 2. obtain: a. signage space between the 40 and 50 yard markers; b. one full -page advertisement in the game program; c. 200 game tickets; d. one customized in -game feature; and e. a Fox Sports interview of a designated representative of the City during the game; 3. submit a. the print advertisement to be included in the game program to the Bayou Bowl Association; b. the signage to be displayed on the field between the 40 and 50 yard markers to the Bayou Bowl Association; c. the thirty- second television advertisements developed by the Baytown Chamber of Commerce and approved by the City to Fox Sports Southwest; and d. the name and contact information of the City's designated representative who will be interviewed during the game to Fox Sports Southwest; and 4. coordinate and ensure that all of the advertising services specified herein are performed in a professional and positive manner to attract visitors to the City of Baytown by providing informative information about the City of Baytown and emphasizing the City's many amenities. Contract for Advertising Services, Page 1 ® Section 3. Foundation's Responsibilities. A. Annual Budget and Reports. The Foundation understands that by accepting monies paid by the City pursuant to Section 4, the Foundation has the obligation to submit its annual budget 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 Section 4 hereof. B. Duty with Respect to Funds Received. Any fee received by the Foundation 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 Section 4 hereof, the Foundation has a fiduciary duty to the City with respect to such monies. C. Financial Records. 'The Foundation 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 and review within five days of receipt of a request. Section 4. Fees. For and in consideration of the services to be performed by the Foundation and in compliance with the terms of this contract and subject to the other provisions of this section, the City agrees to pay to the Foundation the total sum of TWENTY -FIVE THOUSAND AND NO 1100 DOLLARS ($25,000.00), within thirty (30) days of receipt and acceptance of the services and of the report detailed in Section 3 or within thirty (30) days of receipt of an invoice therefore, whichever is later. Should any of the services not be performed by the Foundation in a timely manner as determined by the City, the Foundation agrees that it shall reduce its fee in proportion to the cost of the services not timely performed. Section 5. Contingency. The Foundation expressly understands and agrees that the services to be provided herein are expressly contingent, in part, upon the City approving and obtaining from the Baytown Chamber of Commerce five thirty- second television advertisements about the City of Baytown. Should the television advertisements not be produced or approved by the City, the Foundation agrees that it shall reduce its fee in proportion to the cost of the services to be provided in relation to such advertisement. Section 6. Term. This contract shall be effective for the period from March 10, 2005, to the date that the City receives and accepts the services detailed herein and receives and accepts the report of the Foundation as detailed in Section 3 hereof. Section 7. Termination for Cause. A party may terminate its performance under this contract only upon default by the other party. Default by a party shall occur if the party fails to perform or observe any of the terms and conditions of this contract required to be performed or observed by that party. Should such a default occur, the party against whom the default has occurred shall have the right to terminate all or part of its duties under this contract as of the 30'h day following the receipt by the defaulting party of a notice describing such default and intended termination, provided: (1) such termination shall be ineffective if within said 30 -day period the defaulting party cures the default, or (2) such termination may be stayed, at the sole option of the party against whom the default has occurred, pending cure of the default. Contract for Advertising Services, Page 2 • Section 8. Independent Contractor. The relationship of the Foundation 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 Foundation'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 (e.g. museum services, weed cutting, legal services, auditors). Section 9. Parties in Interest. This contract shall bind and benefit the City and the Foundation and shall not bestow any rights upon any third parties. Section 10. 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 or to exercise any right or remedy occurring as a result of any future default or failure of performance. Section 11. Applicable Laws. This contract is subject to and shall be construed in accordance with the laws of the State of Texas, the laws of the federal government of the United States of America and all rules and regulations of any regulatory body or officer having jurisdiction. This contract is performable in Harris County, Texas. Section 12. Notices. All notices required or permitted hereunder shall be in writing and shall be deemed delivered when actually received or, if earlier, on the third day following deposit in a United States Postal Service post office or receptacle with proper postage affixed (certified mail, return receipt requested) addressed to the respective other party at the address described below or at such other address as the receiving party may have theretofore prescribed by notice to the sending party: FOUNDATION Baytown Area/West Chambers County Economic Development Foundation Attn: Executive Director 1300 Rollingbrook, Suite 610 Baytown, Texas 77521 Fax: (281) 422 -7682 CITY City of Baytown Attn: City Manager P. 0. Box 424 Baytown, Texas 77522 -0424 Fax: (281) 420 -6586 Section 13. Ambiguities. In the event of any ambiguity in any of the terms of this contract, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. Contract for Advertising Services, Page 3 0 Section 14. Entire Agreement. • This contract 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. Section 15. Assignment or Transfer of Rights or Obligations. The Foundation shall not sell, assign, or transfer any of its rights or obligations under this contract in whole or in part without prior written consent of City, nor shall the Foundation assign any monies due or to become due to it hereunder without the previous consent of the City. Section 16. Severability. All parties agree that should any provision of this contract be determined to be invalid or unenforceable, such determination shall not affect any other term of this contract, which shall continue in full force and effect. IN WITNESS WHEREOF, the parties have made and executed this contract in multiple copies, each of which shall be an original, on this the day of March, 2005. CITY OF BAYTOWN GARY JACKSON, General Manager ATTEST: GARY W. SMITH, City Clerk APPROVED AS TO FORM: BAYTOWN AREAIWEST CHAMBERS COUNTY ECONOMIC DEVELOPMENT FOUNDATION (Signature) (Printed Name) (Title) ATTEST: (Signature) (Printed Name) (Title) IGNACIO RAMIREZ, SR., City Attorney R: 1Karcn%Filcs\Contracts\Economic Devel opment4lgreement4Adver tisingServices4 Bayou Bow IR.doc Contract for Advertising Services, Page 4 City of Baytown BAYTOWN March 4, 2005 Ms. Tracey S. Wheeler- Martinez President & CEO Baytown Chamber of Commerce P.O. Box 330 4721 Garth Road, Suite C Baytown, TX 77521 Re: Letter Agreement Dear Ms. Wheeler- Martinez: This Letter Agreement ( "Agreement ") evidences the terms and conditions under which Baytown Chamber of Commerce (the "Chamber ") will develop one thirty- second television advertisement to be broadcast during the 2005 Bayou Bowl on Fox Sports Southwest on behalf of the City of Baytown (the "City"). I Chamber's Obligations The Chamber covenants and agrees that it will perform the following services pursuant to the terms hereof 1. develop one thirty- second television advertisement acceptable to the City, which advertisement shall provide informative information about the City of Baytown and emphasize the City's many amenities; 2. obtain the City Council's approval of the developed television advertisement; and 3. submit to the Bayou Bowl Association the City- approved teIevision advertisement in the format specified by Fox Sports Southwest on or before the 15`t' day of April, 2005. II. City's Obligation The Chamber and the City expressly understand and agree that the only obligation of the City under this agreement is to pay a fee to the Chamber for the services enumerated in Article I in an amount not to exceed THREE THOUSAND AND NO 1100 DOLLARS ($3,000.00). Such sum shall be due within 30 days after the City's receipt of an invoice for the services required to be performed herein or within 30 days after the Chamber performs all of the services detailed in Article I hereof and the City accepts the same. III. Miscellaneous Provisions 3.01 Termination. Any breach of any provision of this Agreement shall constitute an Event of Default for which the City may, and the Chamber explicitly recognizes the City's right to, terminate this Agreement by giving written notice to the Chamber. Additionally, it is understood that the City may terminate this Agreement at any time 240IMarket Street P.O. Box 424 Baytown, Texas 77522 -0424 (281)422 -8281 Fax (281)420 -6586 baytown @baytown.org E=ff �' ®written notice to the Chamber. 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 Chamber. Termination shall take effect immediately on receipt thereof by the Chamber. If this agreement is terminated for any reason or no reason, the Chamber shall invoice the City for only those services which were actually performed and accepted on or before the date of the notice of termination. 3.02 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, Fax: (281) 420 -6586 If to the Chamber, to Baytown Chamber of Commerce Attn: President & CEO P.O. Box 330 4721 Garth Road, Suite C Baytown, TX 77521 Fax: (281) 428 -1758 3.03 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. 3.04 No Additional Waiver Implied. The failure of any party hereto to insist, in anyone 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. 3.05 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. 3.06 Independent Con_ tractor. The relationship of the Chamber 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 Chamber'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. • 3.07 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 customer of the Chamber for any failure to perform its obligations under this Agreement. ® 3.08 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. • 3.09 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. 3.10 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. 3.11 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. 3.12 Term. This Agreement shall be in force and effect from the date of execution hereof by the City Manager until the date that the City receives and accepts the services detailed herein. 3.13 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. 3.14 Authority. The officers executing this Agreement on behalf of the parties hereby represents that such officers have full authority to execute this Agreement and to bind the party he /she represents. 3.15 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 Chamber and return the same to my attention at the above - referenced address. Thereafter, I will present this document to the City 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, gnacio Ramirez, Sr. City Attorney AGREED: Baytown Chamber of Commerce (Signature) (Date) (Printed Name) (Title) 0 ATTEST: • (Signature) (Date) (Printed Name) (Title) AGREED: CITY OF BAYTOWN GARY JACKSON, City Manager (Date) ATTEST: GARY W. SMITH, City Clerk RAKarenTiles \Contracts \Chamber of Commerce\ LetterAgreement4DevelopmentofAdvertisement4BayouBowl .doc 93/07/2005 15: U8 'Lt$14'Ltil I'DU OP I VwIV S.rt"I'loCR r.+uc U4 ....,.r uvv �� per r 281 I 420 -56GG P.4 ® 3.08 Captions. The captions appearing at the first of each numbered so.-tion in this Agrecrrixul are iosened and included solely for convenience and shall never be considered at given any effect in construing this Agreement or any provision heroot or in connection with the duties, obligatlons or liabibties of the respoctive parties horzto or in ascertaining intent, if any question of intent should arise. 3.09 Severabilitv_. The provisions of this Agreement art severable, and if any provision or part of this Agreement at its application thereto to any person or eircuuurtanee shall ever be held by any court of competent jurisdiction to be invalid or unconsdrudonal for any reason, the remainder of this Agreement and the application of such provisions or prat of this Agrrssrmcit to other persons or circumstances shall not be affected thereby, 3.10 Morget. This Agreement embodies the entire understanding and agreernent between the parties as to the services to be provided herein; and there arc no prier effecOve top, one, warranties or agreements between the panics. 3.11 c2astaucti on of A=CBMt 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, 3.12 Term. This Agreement shall be in force and effect from the date of execution herreof by the City Manager until the date that the City receives and accepts the savioea detailed herein. 3.13 CboigS of Law and Venue, This Agmamc:rtt shall in all respects be interpreted and construed in accordance with and governed by the laws of the State ofTexaa 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. 3.14 Authoril y. The ofiiceta executing this Agreement an behalf of the pasties hereby represents that such ofircem have full authority to execute this Agreement and to bind the party he/she represents. 3,15 Asaee:ment Read. The parties acknowledge that they have read understand and intend to be bound by the terms and conditions of this Agree,=ni, Should the above - referenced toms and conditions be aeoeptable to you, please have this letter agreement execumd by the appropriate officer of the Chamber and return the same to my attention at the above - referenced address. Thereaft, I will present this document to the City Manager for execution. Should you have arry questions or if l may be of any assistance, please do not hesitate to oohtact rno. Thank you for your assistance in this matter. Sincerely, 4gn l at • �o Ramirea, 5, . City Attorney AGREED: Bayto ber o (Signattae (Date) .1ze o- ;� GI14I Ct r4v (Printed N e) 4e- d%.-/ 'r.L'�D (Title) • 03/07/YUUb 15: UU _ _ �2dl V'ttll tab I_rtper DRY IUWIV t- ,nJ41'10r-M rr+vr uu (281) 420 -5886 p,5 • ATTEST: ( ature) 145— (Dal heeler (Printed Name) (Title) ' ATTEST: GARY W. S.MJTN, City Clerk AGREED: CITY OF BAYTOWN OARY JACKSON, City Manager (Date) st: XxralFiieelCanmwulCnsvnbar of Cummerce'1 ett& A8reemrntaDevdoymntofAdvftLeirm "8ayouBoaidoe • i • CONTRACT FOR ADVERTISING SERVICES IN CONNECTION WITH THE 2005 BAYOU BOWL STATE OF TEXAS § COUNTY OF HARRIS § THIS CONTRACT,which is made as of the 1 day of March,2005,by and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, and THE BAYTOWN AREA/WEST CHAMBERS COUNTY ECONOMIC DEVELOPMENT FOUNDATION, hereinafter called"Foundation." For and in consideration of the mutual covenants herein contained,the City and the Foundation agree as follows: Section 1. Representations and Warranties of Foundation. Foundation hereby represents and warrants as follows: a) The Foundation is engaged in an on-going effort to attract new businesses to the Baytown/West Chambers County area and to encourage the expansion of existing businesses in the Baytown/West Chambers County area. b) The Foundation covenants that it shall actively work to productively coordinate its activities with other organizations in an effort to reduce duplication of services. c) The Foundation represents and warrants that it is a non-profit economic development organization,the principal purpose of which is the promotion of economic development in the Baytown and West Chambers County area. Section 2. Services to be Provided. The Foundation shall provide the following economic development services for and on behalf of the City: 1. purchase five thirty-second advertisements on Fox Sports Southwest to be aired during the initial broadcast of the 2005 Bayou Bowl as well as any subsequent rebroadcasts and two mid-game broadcast billboards; 2. obtain: a. signage space between the 40 and 50 yard markers; b. one full-page advertisement in the game program; c. 200 game tickets; d. one customized in-game feature; and e. a Fox Sports interview of a designated representative of the City during the game; 3. submit a. the print advertisement to be included in the game program to the Bayou Bowl Association; b. the signage to be displayed on the field between the 40 and 50 yard markers to the Bayou Bowl Association; c. the thirty-second television advertisements developed by the Baytown Chamber of Commerce and approved by the City to Fox Sports Southwest; and d. the name and contact information of the City's designated representative who will be interviewed during the game to Fox Sports Southwest; and 4. coordinate and ensure that all of the advertising services specified herein are performed in a professional and positive manner to attract visitors to the City of Baytown by providing informative information about the City of Baytown and emphasizing the City's many amenities. Contract for Advertising Services,Page 1 • • Section 3. Foundation's Responsibilities. A. Annual Budget and Reports. The Foundation understands that by accepting monies paid by the City pursuant to Section 4, the Foundation has the obligation to submit its annual budget 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 Section 4 hereof. B. Duty with Respect to Funds Received. Any fee received by the Foundation 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 Section 4 hereof,the Foundation has a fiduciary duty to the City with respect to such monies. C. Financial Records. The Foundation 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 and review within five days of receipt of a request. Section 4. Fees. For and in consideration of the services to be performed by the Foundation and in compliance with the terms of this contract and subject to the other provisions of this section, the City agrees to pay to the Foundation the total sum of TWENTY-FIVE THOUSAND AND NO/100 DOLLARS($25,000.00),within thirty(30) days of receipt and acceptance of the services and of the report detailed in Section 3 or within thirty (30) days of receipt of an invoice therefore, whichever is later. Should any of the services not be performed by the Foundation in a timely manner as determined by the City,the Foundation agrees that it shall reduce its fee in proportion to the cost of the services not timely performed. Section 5. Contingency. The Foundation expressly understands and agrees that the services to be provided herein are expressly contingent, in part,upon the City approving and obtaining from the Baytown Chamber of Commerce five thirty-second television advertisements about the City of Baytown. Should the television advertisements not be produced or approved by the City,the Foundation agrees that it shall reduce its fee in proportion to the cost of the services to be provided in relation to such advertisement. Section 6. Term. This contract shall be effective for the period from March 10,2005,to the date that the City receives and accepts the services detailed herein and receives and accepts the report of the Foundation as detailed in Section 3 hereof. Section 7. Termination for Cause. A party may terminate its performance under this contract only upon default by the other party. Default by a party shall occur if the party fails to perform or observe any of the terms and conditions of this contract required to be performed or observed by that party. Should such a default occur,the party against whom the default has occurred shall have the right to terminate all or part of its duties under this contract as of the 30th day following the receipt by the defaulting party of a notice describing such default and intended termination,provided: (1)such termination shall be ineffective if within said 30-day period the defaulting party cures the default,or(2)such termination may be stayed,at the sole option of the party against whom the default has occurred,pending cure of the default. Contract for Advertising Services,Page 2 • • Section 8. Independent Contractor. The relationship of the Foundation 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 Foundation'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 (e.g. museum services, weed cutting, legal services,auditors). Section 9. Parties in Interest. This contract shall bind and benefit the City and the Foundation and shall not bestow any rights upon any third parties. Section 10. 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 or to exercise any right or remedy occurring as a result of any future default or failure of performance. Section 11. Applicable Laws. This contract is subject to and shall be construed in accordance with the laws of the State of Texas, the laws of the federal government of the United States of America and all rules and regulations of any regulatory body or officer having jurisdiction. This contract is performable in Harris County,Texas. Section 12. Notices. All notices required or permitted hereunder shall be in writing and shall be deemed delivered when actually received or,if earlier,on the third day following deposit in a United States Postal Service post office or receptacle with proper postage affixed(certified mail,return receipt requested)addressed to the respective other party at the address described below or at such other address as the receiving party may have theretofore prescribed by notice to the sending party: FOUNDATION Baytown ArealWest Chambers County Economic Development Foundation Attn: Executive Director 1300 Rollingbrook, Suite 610 Baytown,Texas 77521 Fax: (281)422-7682 CITY City of Baytown Attn: City Manager P. O. Box 424 Baytown,Texas 77522-0424 Fax: (281)420-6586 Section 13. Ambiguities. In the event of any ambiguity in any of the terms of this contract, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. Contract for Advertising Services,Page 3 • • Section 14. Entire Agreement. This contract 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. Section 15. Assignment or Transfer of Rights or Obligations. The Foundation shall not sell,assign,or transfer any of its rights or obligations under this contract in whole or in part without prior written consent of City,nor shall the Foundation assign any monies due or to become due to it hereunder without the previous consent of the City. Section 16. Severability. All parties agree that should any provision of this contract be determined to be invalid or unenforceable,such determination shall not affect any other term of this contract,which shall continue in full force and effect. IN WITNESS WHEREOF,the parties have made and executed this contract in multiple copies,each of which shall be an original, on this the l5e, day of March, 2005. BAYTOWN AREA/WEST CHAMBERS CITY OF BAYTOWN COUNTY ECONO IC DEVELOPMENT FOUNDATION al I GARY JACK , General Manager (Signature) (Printed Name) (Title) ATTEST: ATTEST: • GP RY W. SMITH, City Clerk Signature (Printed Name) (Title) APPROVED AS TO FORM: ACID RAMIREZ, SR., ty Attorney R:\Karen\Files\Contracts\Economic Development\Agreement4AdvertisingServices4BayouBowIR.doc Contract for Advertising Services,Page 4 • • Cityof Baytown BAYTOW\ March 4, 2005 Ms. Tracey S. Wheeler-Martinez President&CEO Baytown Chamber of Commerce P.O. Box 330 4721 Garth Road, Suite C Baytown,TX 77521 Re: Letter Agreement Dear Ms. Wheeler-Martinez: This Letter Agreement("Agreement")evidences the terms and conditions under which Baytown Chamber of Commerce(the"Chamber")will develop one thirty-second television advertisement to be broadcast during the 2005 Bayou Bowl on Fox Sports Southwest on behalf of the City of Baytown(the"City"). I Chamber's Obligations The Chamber covenants and agrees that it will perform the following services pursuant to the terms hereof: 1. develop one thirty-second television advertisement acceptable to the City,which advertisement shall provide informative information about the City of Baytown and emphasize the City's many amenities; 2. obtain the City Council's approval of the developed television advertisement;and 3. submit to the Bayou Bowl Association the City-approved television advertisement in the format specified by Fox Sports Southwest on or before the 15th day of April,2005. II. City's Obligation The Chamber and the City expressly understand and agree that the only obligation of the City under this agreement is to pay a fee to the Chamber for the services enumerated in Article I in an amount not to exceed THREE THOUSAND AND NO/100 DOLLARS($3,000.00). Such sum shall be due within 30 days after the City's receipt of an invoice for the services required to be performed herein or within 30 days after the Chamber performs all of the services detailed in Article I hereof and the City accepts the same. III. Miscellaneous Provisions 3.01 Termination. Any breach of any provision of this Agreement shall constitute an Event of Default for which the City may, and the Chamber explicitly recognizes the City's right to, terminate this Agreement by giving written notice to the Chamber. Additionally,it is understood that the City may terminate this Agreement at any time 2401Market Street P.O. Box 424 Baytown,Texas 77522-0424 (281)422-8281 Fax(281)420-6586 baytown@baytown.org • • written notice to the Chamber. 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 Chamber. Termination shall take effect immediately on receipt thereof by the Chamber. If this agreement is terminated for any reason or no reason, the Chamber shall invoice the City for only those services which were actually performed and accepted on or before the date of the notice of termination. 3.02 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 Fax: (281)420-6586 If to the Chamber, to Baytown Chamber of Commerce Attn: President&CEO P.O. Box 330 4721 Garth Road, Suite C Baytown, TX 77521 Fax: (281)428-1758 3.03 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. 3.04 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. 3.05 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. 3.06 Independent Contractor. The relationship of the Chamber 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 Chamber'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. 3.07 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 customer of the Chamber for any failure to perform its obligations under this Agreement. Mar 04 05 03: 51p Bob Leiper (281 ] 420-5866 p. 4 • • 3.08 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. 3.09 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 oe 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. 3.10 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. 3.11 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. 3.12 Term. This Agreement shall be in force and effect from the date of execution hereof by the City Manager until the date that the City receives and accepts the services detailed herein, 3.13 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. 3.14 Authority. The officers executing this Agreement on behalf of the parties hereby represents that such officers have full authority to execute this Agreement and to bind the party he/she represents. 3.15 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 Chamber and return the same to my attention at the above-referenced address. Thereafter,I will present this document to the City 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, ' .IGars•�i�,/� Ignacio Ramirez, Sr. City Attorney AGREED: Baytown ber o ,Gf•c.J0/2/1 (Signature; (Date) (Printed Nance) • 4t 'de�rI ,er- (Title) Mar 04 05 03:53p Bob Leiper (281 ) 420-5866 p. 5 • • ATTEST: •1tzd1L) gnature) (Dat £ixI; (,,lslx,efe/ (Printed Name) E,0P CrJ wa,./ Dire/ L)i (Title) AGREED: CIT ' YTO GARY JA SON, City Manager(Date) ATTEST: >)i-eit, GA SMITH,City Clerk R:,ICaren4 iles\Contracts;Chamuer of Commerce' .etterAgreement40evelopmentofAdvertisement4BayouBow•l.doc