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Ordinance No. 10,280ORDINANCE NO. 10,280 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING CITY MANAGER TO NEGOTIATE AND EXECUTE A TOURISM - RELATED ADVERTISING CONTRACT WITH THE BAYOU BOWL ASSOCIATION ENABLING THE CITY TO BE A CO- PRESENTING SPONSOR OF THE BAYOU BOWL; AUTHORIZING PAYMENT OF AN AMOUNT NOT TO EXCEED FIFTY -FIVE THOUSAND AND NO 1100 DOLLARS ($55,000.00) FOR AUTHORIZED EXPENDITURES PURSUANT TO CHAPTER 351 "MUNICIPAL HOTEL OCCUPANCY TAXES" OF THE TEXAS TAX CODE; 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 the City Manager to negotiate and execute a tourism- related advertising contract with the Bayou Bowl Association enabling the City to be a co- presenting sponsor of the Bayou Bowl, under terms and conditions deemed acceptable to the City Attorney and the City Manager. Section 2: That the City Council of the City of Baytown authorizes payment to Bayou Bowl Association, in an amount not to exceed FIFTY -FIVE THOUSAND AND NO /100 DOLLARS ($55,000.00), pursuant to the agreement identified in Section 1 hereof, for authorized expenditures pursuant to Chapter 351 "Municipal Hotel Occupancy Taxes" of the Texas Tax Code, Section 3: That the City Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less; however, the original contract price may not be increased by more than twenty -five percent (25 %) or decreased by more than twenty -five percent (25 %) without the consent of the contractor to such decrease. 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 91h day of March, 2006. CALVIN MUNDINGER, Mayor wrimbifflItMir LORRI_.00ODY, CitAClerk APPROVED AS TO FORM: • 4 ! t�_ Z.— --= � /- --%4 - G ACIO RAMIREZ, SR., M Attorney RAKaren \Filcs \City Counci1N0rdinances\2006\March 9\A uthorizeContract4 Bayou Bow Ldoc • • • Tourism Partnership Grant Agreement STATE OF TEXAS § COUNTY OF HARRIS § THIS AGREEMENT made between the City of Baytown, Texas, a municipal corporation (the "City"), and the Bayou Bowl Association, a Texas non-profit corporation incorporated under the laws of the State of Texas(the"Grant Recipient"). WHEREAS, the City of Baytown has enacted a hotel occupancy tax for the purposes provided in Chapter 351 of the Texas Tax Code; and WHEREAS, Section 351.101(a) of the Texas Tax Code authorizes the City to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, Section 351.101(a) of the Texas Tax Code also authorizes the City to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by being a home to the sporting event referenced herein in which the majority of participants are expected to be tourists who substantially increase economic activity at hotels and motels within the municipality or its vicinity; and WHEREAS, the Grant Recipient will conduct the 11th Annual Bayou Bowl, which will be held in June of 2013, which features Texas High School Football All-Stars vs. Louisiana High School Football All-Stars, which is expected to directly enhance and promote tourism and the convention and hotel industry(the"Event"); and WHEREAS, the Grant Recipient proposes to use various means of advertising to promote the City of Baytown together with the Event; and WHEREAS, the City and the Grant Recipient desire to enter into this Agreement subject to the terms and conditions herein in order to enhance and promote tourism and the convention and hotel industry; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein,the City and the Grant Recipient agree as follows: Tourism Partnership Grant Agreement, Page 1 • • • I. USE OF HOTEL OCCUPANCY TAX REVENUE 1.1 Use of Funds. For and in consideration of the payment by the City to the Grant Recipient of the agreed payments of hotel tax funds specified in Article III, the Grant Recipient agrees to use such hotel tax funds for advertising and conducting solicitations and promotional programs to attract tourists to the City in a manner that directly enhances and promotes tourism and the convention and hotel industry by providing advertising and entertainment services associated with the Event. Funds which are unused shall be refunded to the City within fifteen (15) days after the conclusion of the Event. 1.2 Specific Restrictions on Use of Funds. The Grant Recipient agrees to demonstrate strict compliance with the record keeping and apportionment limitations imposed by Sections 351.101(g), 351.103 and 351.104 of the Texas Tax Code, as applicable. The Grant Recipient shall not utilize hotel occupancy tax funds for any expenditure which has not been specifically documented to satisfy the purposes set forth in Article I hereof. I I. RECORD KEEPING AND REPORTING REQUIREMENTS 2.1 Budget. (a) The Grant Recipient shall prepare and submit to the City Manager of the City an annual budget for approval for such operations of the Grant Recipient funded by hotel occupancy tax revenue. This budget shall specifically identify proposed expenditures of hotel tax funds by the Grant Recipient. Based upon the budget,the City should be able to audit specifically the purpose of each individual expenditure of hotel occupancy tax funds from the separate account relating to hotel tax funds. The City shall not pay to the Grant Recipient any hotel tax revenues as set forth in Article III of this Agreement unless a budget has been approved in writing by the City authorizing the expenditure of funds. (b) The Grant Recipient acknowledges that the approval of such budget by the City Council creates a fiduciary duty in the Grant Recipient with respect to the hotel occupancy tax funds paid by the City to the Grant Recipient under this Agreement. The Grant Recipient shall expend hotel tax occupancy funds only in the manner and for the purposes specified in this Agreement and in the budget as approved in writing by the City Council. 2.2 Separate Account. The Grant Recipient shall maintain any hotel tax funds paid to the Grant Recipient by the City in a separate account and shall not commingle such funds with any other money. 2.3 Financial Records. The Grant Recipient shall maintain complete and accurate financial records of each expenditure of the hotel occupancy tax funds made by the Grant Recipient. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including,but not limited to, auditing fees and attorney fees. Upon reasonable Tourism Partnership Grant Agreement,Page 2 • • • • advance written request of the City Manager or his designee, the Grant Recipient shall make such financial records available for inspection and review and shall provide copies of the same if so requested. The Grant Recipient understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, as hereafter amended,and the Local Government Records Act, as amended. 2.4 Quarterly Reports. After initial receipt of the hotel occupancy tax funds, and within thirty (30) days after the end of every contract quarter in which funds are received, the Grant Recipient shall furnish to the City a quarterly report, including: (1) a completed financial report, (2) a list of the expenditures made or copies of the invoice or receipts with regard to hotel occupancy tax funds pursuant to TEx.TAX CODE §351.101(c),and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). The Grant Recipient shall prepare and deliver all reports to the City Clerk in a form and manner approved by the City Manager or his designee. The Grant Recipient shall respond promptly to any request from the City Manager or his designee for additional information relating to the activities performed under this Agreement. 2.5 Annual Report. Within thirty(30) days after the Event, the Grant Recipient will furnish to the City a performance report of its work under this Agreement which shall reflect overall activities conducted and expenditures made pursuant to this Agreement. Such report shall also state the number of people who attended the Event, the number of hotel rooms used as a result of the Event, and any other information requested by the City Manager. This annual report must be signed and verified by an officer of the Grant Recipient as being true and correct. 2.6 Notice of Meetings. The Grant Recipient shall give the City Manager reasonable advance written notice of the time and place of all meetings of the Grant Recipient's Board of Directors, as well as any other meeting of any constituency of the Grant Recipient at which this Agreement or any matter subject to this Agreement shall be considered. III. HOTEL OCCUPANCY TAX REVENUE PAYMENTS 3.1 Payments. Subject to Section 3.2 of this Agreement, as a consideration for the Grant Recipient's activities set forth in this Agreement, the City agrees to pay the Grant Recipient an amount not to exceed FIFTY-FIVE THOUSAND AND NO/100 DOLLARS ($55,000.00) from hotel occupancy tax revenues. The parties understand and agree that the City's obligation hereunder shall not be greater than the actual expense incurred by the Grant Recipient in performing the services required hereunder. Tourism Partnership Grant Agreement,Page 3 • • • If the Grant Recipient, at any time during the term of this agreement, incurs a debt, as defined in section 2-662 of the Code of Ordinances of the City of Baytown, the Grant Recipient shall immediately notify the City's Director of Finance in writing. If the City's Director of Finance becomes aware that the Grant Recipient has incurred a debt, the City's Director of Finance shall immediately notify the Grant Recipient in writing. If the Grant Recipient does not pay the debt within 30 days of either such notification, the City's Director of Finance may deduct funds in an amount equal to the debt from any payments owed to the Grant Recipient under this Agreement, and the Grant Recipient waives any recourse therefor. 3.2 Due Date. The City shall pay the fee specified in Section 3.1 on or before the thirtieth (30th) day after receiving a proper invoice therefor. However, the parties agree that any funds not used for promotion of the arts or advertising and conducting promotional programs to attract tourists to the Baytown area and the Event shall be refunded to the City within fifteen (15) days after the conclusion of the Event. Iv. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on the date of execution by the City Manager and terminate October 31, 2013, or after the Grant Recipient has fully complied with all terms and conditions herein, whichever is later. Only those expenditures authorized by this Agreement and contained in the budget approved by the City, which are actually incurred for events and activities taking place within the term of this Agreement, are eligible for funding. Any ineligible expenditures or unspent funds shall be forfeited to the City upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party thirty(30)days' advance written notice. (b) In the event this Agreement is terminated by either party pursuant to Section 4.2(a), the Grant Recipient shall be entitled to payment for its services satisfactorily performed in accordance with this Agreement up to the date of termination subject to Section 4.2(c). (c) If this Agreement is terminated pursuant to Section 4.2(a), the Grant Recipient will provide the City: (1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining thirty-day period between termination notification and contract termination. This budget will be presented to the City Council for approval at the next regularly scheduled meeting for which proper notice can be given after receipt thereof by the City. If the City Council fails to act on the budget at such meeting and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code and is within the term of the Agreement; the budget will be considered approved; Tourism Partnership Grant Agreement,Page 4 • • • (2) within five (5) business days of a request from the City, a listing of expenditures that have occurred since the last required reporting period; (3) a final accounting of all expenditures and tax funds on the day of termination. Any use of remaining funds by the Grant Recipient after notification of termination and prior to termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in Section 1.1. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of the Grant Recipient; (b) The insolvency of the Grant Recipient, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by the Grant Recipient for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either the City or the Grant Recipient for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party;or (d) The failure of the Grant Recipient to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by Section 2.4. 4.4 In the event that this Agreement is terminated pursuant to Section 4.2 or 4.3, the Grant Recipient agrees to refund any and all unused funds, or funds determined by the City to have been used improperly within 30 days after termination of this Agreement. Additionally such termination shall not affect the Grant Recipient's obligation to comply with the reporting requirements articulated in Article II or as may otherwise be required by Chapter 351 of the Texas Tax Code. Late payments shall accrue interest at the rate provided in Section 2251.025 of the Texas Government Code. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by the Grant Recipient with another private entity, person, or organization for the performance of those services described in Section 1.1. In the event that the Grant Recipient enters into any arrangement, contractual or otherwise, with such other entity, person or organization, the Grant Recipient shall cause such other entity, person, or organization to Tourism Partnership Grant Agreement,Page 5 • • adhere to, conform to, and be subject to all provisions,terms, and conditions of this Agreement and to Chapter 351 of the Texas Tax Code, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. The Grant Recipient shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of the City. The Grant Recipient shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the Grant Recipient shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The Grant Recipient shall not be considered a partner or joint venturer with the City, nor shall the Grant Recipient be considered nor in any manner hold itself out as an agent or official representative of the City. 5.3 Insurance. The Grant Recipient shall, at a minimum,provide insurance as follows: 1. Commercial General Liability • General Aggregate: $1,000,000 • Per Occurrence: $500,000 • Coverage shall be at least as broad as ISO CG 00 02 12 07 • No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. The following are general requirements applicable to all policies: > AM Best Rating of B+; VII or better for all liability policies. ➢ Insurance carriers licensed and admitted to do business in State of Texas will be accepted. > Upon request of and without cost to City of Baytown, certified copies of all insurance policies and/or certificates of insurance shall be furnished to City of Baytown's representative. ➢ Certificates of insurance showing evidence of insurance coverage shall be provided to City of Baytown's representative prior to any work being performed at the site. > Liability policies must be on occurrence form. ➢ Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. ➢ The City of Baytown, its officers, agents and employees are to be added as Additional Insureds to all liability policies. Additionally, the Grant Recipient shall furnish separate certificates and endorsements for each at-risk vendor, including those supplying amusement activities. All coverage of such vendors shall be subject to all of the requirements stated herein. 5.4 Indemnity. THE GRANT RECIPIENT AGREES TO AND SHALL INDEMNIFY, Tourism Partnership Grant Agreement,Page 6 . • • HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES (HEREINAFTER COLLECTIVELY REFERRED TO AS THE "CITY"), FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING, BUT NOT LIMITED TO, 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 SERVICES PROVIDED BY THE GRANT RECIPIENT PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE GRANT RECIPIENT'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR OMISSION BY THE GRANT RECIPIENT, ITS AGENTS, AND EMPLOYEES, WHEN PERFORMING SERVICES IN ACCORDANCE WITH THIS AGREEMENT, WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY AND/OR BY THE JOINT OR SOLE NEGLIGENCE OF THE GRANT RECIPIENT. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE GRANT RECIPIENT AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE GRANT RECIPIENT TO INDEMNIFY AND PROTECT THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM THE CONSEQUENCES OF (I) THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE WITH ANY OTHER PERSON OR ENTITY AND/OR (II) THE GRANT RECIPIENT'S JOINT AND/OR SOLE NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE CITY FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY, UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, THE GRANT RECIPIENT FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. Tourism Partnership Grant Agreement,Page 7 • • The indemnity provided hereinabove shall survive the termination and/or expiration of this Agreement. 5.5 Release. By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contract or agreement, any charter, or applicable state law. Nothing contained herein shall be construed in any way so as to waive in whole or part the City's sovereign immunity. The Grant Recipient assumes full responsibility for its work performed hereunder and hereby releases, relinquishes, discharges, and holds harmless the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person(whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties)that is caused by or alleged to be caused by, arising out of, or in connection with the Grant Recipient's work to be performed hereunder. This release shall apply with respect to the Grant Recipient's work regardless of whether said claims,demands,and causes of action are covered in whole or in part by insurance. 5.6 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement,the City and the Grant Recipient hereby agree that no claim or dispute between the City and the Grant Recipient 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 Grant Recipient consents to be joined in the arbitration proceeding if the Grant Recipient's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 5.7 Force Majeure. In the event the Event is cancelled due to a force majeure, the refund obligations of the Grant Recipient under this Agreement pursuant to Sections 1.1, 3.2, and 4.4 will not be expanded but will remain unchanged. Any funds provided by the City pursuant to Section 3.1 and either not expended or not expended in full compliance with this Agreement shall be refunded to the City pursuant to the terms of this Agreement. The term "force majeure" as used herein, shall include acts of God, acts of the public enemy, and acts not within the control of the parties hereto, which by the exercise of due diligence and care could not have avoided. 5.8 Assignment. The Grant Recipient shall not assign this Agreement without first obtaining the written consent of the City. 5.9 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation,shall be effective when given in writing and deposited in the United States mail, certified mail,return receipt requested,or by hand-delivery, addressed to the respective parties as follows: Tourism Partnership Grant Agreement,Page 8 CITY GRANT RECIPIENT City of Baytown Bayou Bowl Association Attn: City Manager Attn: Chairman P.O. Box 424 P.O. Box 330 Baytown,TX 77522 Baytown,TX 77522 5.10 Binding Effect. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the City and the Grant Recipient and their respective successors and assigns. 5.11 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Baytown, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. The place of making and the place of performance for all purposes shall be Baytown,Harris County,Texas. 5.12 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 5.13 Complete Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.14 Duplicate Originals. This Agreement is executed in duplicate originals. 5.15 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation,definition,or extension of the specific terms of the section and paragraph so designated. 5.16 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement,and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. EXECUTED ON this theTday of , 201%. CI F BAYTOWN By: OBERT D. LEIPE , City Manager Tourism Partnership Grant Agreement,Page 9 . • N \, A T: e I TICIA BRYSC , ity Clerk `• `Ts APPROVED AS TO FORM: ACIO RAMIREZ, SR., y Attorney EXECUTED ON this the at�d day of r I 1 , 2011.. BAYOU BOWL ASSOCI B (Signatur 7(Ie5deI!/{.e (Printed Name) 1XGC. P'? 7-D.e__ (Title) ATTEST: GuAii-P4) (S' ature) l� l WheLh' (Printed Name) SPa(Oa (Title) R:\Karen\Files\Contracts\Tourism Grant Agreement\2012\BayouBowlAgreement4AdvertisingServices2012.doc Tourism Partnership Grant Agreement,Page 10