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Ordinance No. 10,294ORDINANCE NO. 10,294 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AN AGREEMENT FOR PROMOTIONAL AND TOURIST SERVICES WITH THE BAYTOWN CHAMBER OF COMMERCE; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT OF FORTY -FIVE THOUSAND AND NO /100 DOLLARS ($45,000.00); 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 execute and the City Clerk to attest to an Agreement for Promotional and Tourist Services with the Baytown Chamber of Commerce. 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 to the Baytown Chamber of Commerce in an amount of FORTY -FIVE THOUSAND AND NO /100 DOLLARS ($45,000.00) in accordance with the agreement authorized in Section I hereof. Section 3: 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 23`d day of March, 2006. CALVIN MUNDINGER, Mayor APPROVED AS TO FORM: TiffNACIO RAMIREZ, SR., Ca Attorney . RAKaren \Files \City Council \Ordinances\2006 \March 23 \ChamberofCommerceContract.doc Agreement for Promotional and Tourist Services STATE OF TEXAS § § COUNTY OF HAMS § THIS AGREEMENT made between the City of Baytown, Texas, a municipal corporation (the "City "), and the Baytown Chamber of Commerce, a non -profit corporation incorporated under the laws of the State of Texas (the "Chamber "). 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, the City of Baytown and Baytown Chamber of Commerce have a mutual interest in enhancing Baytown's identity in the economic marketplace of Harris and Chambers Counties, the State and the Nation; and encouraging the economic growth of Baytown by attracting tourists, visitors, and conventions; and WHEREAS, Baytown Chamber of Commerce traditionally has concerned itself with these goals and is qualified to plan and execute programs designed to help accomplish these purposes; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, the City and the Chamber agree and contract effective April 1, 2006, as follows: I USE OF HOTEL OCCUPANCY TAX REVENUE 1.1 Use of Funds. For and in consideration of the payment by the City to the Chamber of the agreed payments of hotel tax funds specified in Article III, the Chamber agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the City by: a. planning and executing a marketing program designed to enhance the image of Baytown as an attractive city for tourists, visitors and conventions; Agreement for Promotional and Tourist Services, Page r+11 M A • b. developing programs to promote Baytown as a desirable city with food and lodging accommodations for the traveling public, and to attracts conventions, sales meetings, conferences and tourists to the City; and C. creating through advertisement in various tourist and appropriate general media publications and representation of the City at travel shows and other such events, a positive image and increased awareness of the amenities, attractions and recreational activities of interest to tourists and visitors. Funds for any contract year which are unused by midnight March 3151 of that year shall be refunded to the City within thirty (30) days. 1.2 Administrative Costs. The hotel occupancy tax funds received from the City by the Chamber may be spent for day -to -day operations, office supplies, salaries, travel expenses and other administrative costs allowed by Section 351.101(f) of the Texas Tax Code, only if each is directly attributable to work on programs, which promote tourism and the hotel and convention industry and is incurred directly in the promotion and servicing expenditures authorized hereinabove. 1.3 Specific Restrictions on Use of Funds. (a) The Chamber agrees to demonstrate strict compliance with the record keeping and apportionment limitations imposed by Sections 351.101(f), 351.103 and 351.104 of the Texas Tax Code, as applicable. The Chamber shall not utilize hotel occupancy tax funds for any expenditure which has not been specifically documented to satisfy the purposes set forth in Sections 1.1 and 1.2 hereinabove. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. 11. RECORDKEEPING AND REPORTING REQUIREMENTS 2.1 Budget. (a) The Chamber shall prepare and submit to the City Manager of the City on or before June 1s1 of each year an annual budget for approval by the City Council, for such operations of the Chamber funded by hotel occupancy tax revenue. This budget shall specifically identify proposed expenditures of hotel tax funds by the Chamber. 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 Chamber any hotel tax revenues as set forth in Article III of this Agreement during any program year of this Agreement unless a budget for such respective program Aizreement for Promotional and Tourist Services, Page 2 • year has been approved in writing by the City Council authorizing the expenditure of funds. Failure to timely submit an annual budget may be considered a breach of contract, and is considered grounds for termination of this Agreement as stated in Section 4.3. (b) The Chamber acknowledges that the approval of such budget by the City Council creates a fiduciary duty in the Chamber with respect to the hotel occupancy tax funds paid by the City to the Chamber under this Agreement. The Chamber 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. (c) During the term of this Agreement, new promotions beyond the scope of the events budgeted may be proposed by the City or the Chamber. Any such proposed promotion shall be considered based on the merits of the special event. Should either party propose a new promotion the Chamber shall submit a detailed description of the special event to the City at least one hundred twenty (120) days prior to the special event. The parties may decide whether to proceed with the event and if so may negotiate the scope and costs associated with promoting the event. The City Council approval of any new promotion in the budget must be obtained prior to allocations of funds to the Chamber. 2.2 Separate Account. The Chamber shall maintain any hotel tax funds paid to the Chamber by the City in a separate account and shall not commingle such funds with any other money. 2.3 Financial Records. The Chamber shall maintain complete and accurate financial records of each expenditure of the hotel occupancy tax funds made by the Chamber. 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 advance written request of the City Manager or his designee, the Chamber shall make such financial records available for inspection and review and shall provide copies of the same if so requested. The Chamber 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, the Chamber 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 Chamber shall prepare and deliver all reports to the City Clerk in a form and manner approved ® by the City Manager or his designee. The Chamber shall respond promptly to any request from the Agreement for Promotional and Tourist Services, Page 3 ® City Manager or his designee for additional information relating to the activities performed under this Agreement. 2.5 Annual Report. Thirty (30) days, after September 30, the end of every fiscal year, the Chamber will furnish to the City a performance report of its work under this Agreement which shall reflect overall activity, meetings, conventions and conferences conducted and expenditures during the contract period of the funds received pursuant to this Agreement. 2.6 Notice of Meetings. The Chamber shall give the City Manager reasonable advance written notice of the time and place of all meetings of the Chamber's Board of Directors, as well as any other meeting of any constituency of the Chamber 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 Chamber's activities set forth in this Agreement, the City agrees to pay the Chamber a total amount of FORTY -FIVE THOUSAND AND NO 1100 DOLLARS ($45,000.00) from hotel occupancy tax revenues for the term of this Agreement in two installments as follows: • $22,500 on April 1, 2006 for the period of April 1, 2006 through September 30, 2006; and • $22,500 on October 1, 2006 for the period of October 1, 2006 through March 31, 2007. 3.2 Condition of Payment. Each payment is subject to receipt of unused funds from the prior contract period and the receipt of the required quarterly reports. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on April 1, 2006 and terminate at midnight on March 31, 2007. Only those expenditures authorized by this Agreement and contained in the budget approved by the City Council, which are actually incurred during the contract term for events and activities taking place within such contract term, are eligible for funding under this Agreement. Any ineligible expenditures or unspent funds shall be forfeited to the City upon termination of the Agreement. Should the Chamber desire to provide services for a second year (April 1, 2007- March 31, 2008), no later than June 1, 2006, the Chamber shall submit notification of same to the City along with a proposed budget in sufficient detail for evaluation and consideration by the City. Any increases will be based on the annual performance report and the budget submitted by the Chamber and shall be approved in writing by the City Council. Aizreennent for Promotional and Tourist Services, Page 4 • 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 Chamber 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 Chamber 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 current contractual period; the budget will be considered approved; (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 Chamber 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, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 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 Chamber; (b) The insolvency of the Chamber, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by the Chamber 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 Chamber for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or Agreement for Promotional and Tourist Services, Page 5 (d) The failure of the Chamber 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 Chamber 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. 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 Chamber with another private entity, person, or organization for the performance of those services described in Section 1.1. In the event that the Chamber enters into any arrangement, contractual or otherwise, with such other entity, person or organization, the Chamber shall cause such other entity, person, or organization to 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 Chamber 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 Chamber shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the Chamber shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The Chamber shall not be considered a partner or joint venturer with the City, nor shall the Chamber be considered nor in any manner hold itself out as an agent or official representative of the City. 5.3 Insurance. The Chamber shall, at a minimum, provide insurance as follows: Commercial General Liability • General Aggregate: $1,000,000 • Per Occurrence: $500,000 • Coverage shall be at least as broad as ISO CG 00 01 10 93 • No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. 2. Business Automobile Policy • Combined Single Limits: $500,000 • Coverage for "Any Auto" Agreement for Promotional and Tourist Services, Page 6 ® 3. Workers' Compensation ■ Statutory Limits ■ Employer's Liability $500,000 ■ Waiver of Subrogation required. 4. Liquor/Dram Shop Liability for any event where alcohol will be provided or served ■ $500,000 The following are general requirements applicable to all policies: 5.4 ➢ 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. ➢ A waiver of subrogation is required in favor of the City for Worker's Compensation Insurance. inaemnity. THE CHAMBER AGREES TO AND SHALL INDEMNIFY, 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 CHAMBER PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE CHAMBER'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR OMISSION BY THE CHAMBER, ITS AGENTS, AND EMPLOYEES, WHEN PERFORMING SERVICES IN ACCORDANCE WITH THIS AGREEMENT, WHERE SUCH INJURIES, DEATH OR DAMAGES Agreement for Promotional and Tourist Services, Page 7 • 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 CHAMBER. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE CHAMBER AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE CHAMBER 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 CHAMBER'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 CHAMBER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. 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 Chamber 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 Chamber's work to be performed hereunder. This release shall apply with respect to the Chamber's work regardless of ® whether said claims, demands, and causes of action are covered in whole or in part by insurance. Agreement for Promotional and Tourist Services, Page 8 • 5.6 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the City and the Chamber hereby agree that no claim or dispute between the City and the Chamber 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 Chamber consents to be joined in the arbitration proceeding if the Chamber's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 5.7 Assignment. The Chamber shall not assign this Agreement without first obtaining the written consent of the City. 5.8 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: CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 CHAMBER Baytown Chamber of Commerce Attn: President and CEO 1300 Rollingbrook Dr., Suite 400 Baytown, TX 77521 5.9 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 Chamber and their respective successors and assigns. 5.10 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, 5.11 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. 5.12 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. i5.13 Duplicate Originals. This Agreement is executed in duplicate originals. Agreement for Promotional and Tourist Services, Page 9 • 5.14 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. 5.15 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 the _ day of ATTEST: LORRI COODY, City Clerk ATTEST: (Signature) (Printed Name) 2006 CITY OF BAYTOWN GARY JACKSON, City Manager BAYTOWN CHAMBER OF COMMERCE 26-A TRACEY S. WHEELER, President (Title) R:\KaretiTiles \Contracts \Chamber of Commerce\ Agreement4AdvertisingServices .doc Agreement for Promotional and Tourist Services, Page 10 s Agreement for Promotional and Tourist Services STATE OF TEXAS § COUNTY OF HARRIS 5 THIS AGREEMENT made between the City of Baytown, Texas. a municipal corporation (the "City"), and the Baytown Chamber of Commerce, a non-profit corporation incorporated tinder the 1 aws of the State of Texas(the"Chamber'). 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, the City of Baytown and Baytown Chamber of Commerce have a mutual interest in enhancing Baytown's identity in the economic marketplace of Harris and Chambers Counties, the State and the Nation: and encouraging the economic growth of Baytown by attracting tourists, visitors, and conventions; and WHEREAS, Baytown Chamber of Commerce traditionally has concealed itself with these goals and is Qualified to plan and execute programs designed to help accomplish these purposes: NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, the City and the Chamber agree and contract effective April 1,2006.as follows: I USE OF HOTEL OCCUPANCY TAX REVENUE 1.1 Use of Funds. For and in consideration of the payment by the City to the Chamber of the agreed payments of hotel tax funds specified in Article M. the Chamber agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the City by: a. planning and executing a marketing program designed to enhance the image of Baytown as an attractive city for tourists, visitors and conventions; Agreement for Promotional and Tourist Services,Pagel b. developing programs to promote Baytown as a desirable city with food and lodging accommodations for the traveling public, and to attracts conventions, sales meetings, conferences and tourists to the City; and C. creating through advertisement in various tourist and appropriate general media publications and representation of the City at travel shows and other such events, a positive image and increased awareness of the amenities, attractions and recreational activities of interest to tourists and visitors. Funds for any contract year which are unused by midnight March 31"of that year shall be refunded to the City within thirty (30)days. 1.2 Administrative Costs. The hotel occupancy tax funds received from the City by the Chamber may be spent for day-to-day operations, office supplies, salaries, travel expenses and other administrative costs allowed by Section 351.101(f) of the Texas Tax Code, only if each is directly attributable to work on programs, which promote tourism and the hotel and convention industry and is incurred directly in the promotion and servicing expenditures authorized hereinabove. 1.3 Specific Restrictions on Use of Funds. (a) The Chamber agrees to demonstrate strict compliance with the record keeping and apportionment limitations imposed by Sections 351.101(f), 351.103 and 351.104 of the Texas Tax Code,as applicable. The Chamber shall not utilize hotel occupancy tax funds for any expenditure which has not been specifically documented to satisfy the purposes set forth in Sections 1.1 and 1.2 hereinabove. (b) Motel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. I.I. RECORDKEEPING AND REPORTING REQUIREMENTS 2.1 Budget. (a) The Chamber shall prepare and submit to the City Manager of the City on or before June 1 S` of each year an annual budget for approval by the City Council, for such operations of the Chamber funded by hotel occupancy tax revenue. This budget shall specifically identify proposed expenditures of hotel tax funds by the Chamber. Based upon the budget, the City should be able to atidit 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 Chamber any hotel tax revenues as set forth in Article ILI of this Agreement during any program year of this Agreement unless a budget for such respective program Aareement for Promotional and Tourist Services.Page 2 0 t year has been approved in writing by the City Council authorizing the expenditure of funds. Failure to timely submit an annual budget may be considered a breach of contract, and is considered grounds for termination of this Agreement as stated in Section 4.3. (b) The Chamber acknowledges that the approval of such budget by the City Council creates a fiduciary duty in the Chamber with respect to the hotel occupancy tax funds paid by the City to the Chamber under this Agreement. The Chamber 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. (c) During the term of this Agreement, new promotions beyond the scope of the events budgeted may be proposed by the City or the Chamber. Any such proposed promotion shall be considered based on the merits of the special event. Should either party propose a new promotion the Chamber shall submit a detailed description of the special event to the City at least one hundred twenty (120) days prior to the special event. The parties may decide whether to proceed with the event and if so may negotiate the scope and costs associated with promoting the event. The City Council approval of any new promotion in the budget must be obtained prior to allocations of funds to the Chamber. 2.2 Separate Account. The Chamber shall maintain any hotel tax funds paid to the Chamber by the City in a separate account and shall not commingle such fluids with any other money. 2.3 Financial Records. The Chamber shall maintain complete and accurate financial records of each expenditure of the hotel occupancy tax funds made by the Chamber. 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 advance Nvritten request of the City Manager or his designee, the Chamber shall make such financial records available for inspection and review and shall provide copies of the same if so requested. The Chamber 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 fiinds, and within thirty (30) days after the end of every contract quarter, the Chamber 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 §35 1.101(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 Chamber shall prepare and deliver all reports to the City Clerk in a form and manner approved by the City Manager or his designee. The Chamber shall respond promptly to any request from the Ap-reement for Promotional and Tourist Services,Page 3 0 City Manager or his designee for additional information relating to the activities performed under this Agreement. 2.5 Annual Report. Thirty (30) days after September 30, the end of every fiscal year, the Chamber will furnish to the City a performance report of its work under this Agreement which shall reflect overall activity, meetings, conventions and conferences conducted and expenditures during the contract period of the funds received pursuant to this Agreement. 2.6 Notice of Meetings. The Chamber shall give the City Manager reasonable advance written notice of the time and place of all meetings of the Chamber's Board of Directors,as well as any other meeting of any constituency of the Chamber 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 Chamber's activities set forth in this Agreement, the City agrees to pay the Chamber a total amount of FORTY-FIVE THOUSAND AND NO/100 DOLLARS ($45,000.00) from hotel occupancy tax revenues for the term of this Agreement in two installments as follows: • $22,500 on April 1, 2006 for the period of April 1, 2006 through September 30, 2006; and • $22,500 on October 1, 2006 for the period of October 1, 2006 through March 31, 2007. 3.2 Condition of Payment. Each payment is subject to receipt of unused funds from the prior contract period and the receipt of the required quarterly reports. IV. TERM AND TEItI III IATiON 4.1 Term. The term of this Agreement shall commence on April 1, 2006 and terminate at midnight on March 31, 2007. Only those expenditures authorized by this Agreement and contained in the budget approved by the City Council,which are actually incurred during the contract tern for events and activities taking place within such contract term, are eligible for funding under this Agreement. Any ineligible expenditures or unspent funds shall be forfeited to the City upon termination of the Agreement. Should the Chamber desire to provide services for a second year (April 1, 2007- March 31, 2008). no later than June 1. 2006. the Chamber shall submit notification of same to the City along with a proposed budget in sufficient detail for evaluation and consideration by the City. Any increases will be based on the annual performance report and the budget submitted by the Chamber and shall be approved in writing by the City Council. Agreement for Promotional and Tourist Services,Page 4 0 4.2 Termination without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other parry thirty(30)days' advance written notice. (b) In the event this Agreement is terminated by either party pursuant to Section 4.2(a), the Chamber 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 Chamber 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 current contractual period; the budget will be considered approved; (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 Chamber 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, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 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 Chamber; (b) The insolvency of the Chamber, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by the Chamber for the benefit of creditors-, (c) The continuation of a breach of any of the terns or conditions of this Agreement by either the City or the Chamber for more than thirty (30) days after written notice of such breach is given to the breaching parry by the other party; or Agreement for Promotional and Tourist Services,Page 5 0 (d) The failure of the Chamber 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 Chamber 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. Late payments shall accrue interest at the rate provided in Section 2251.025 of the Texas Government Code. `' GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing ui this Agreement shall prohibit, nor be construed to prohibit, the agreement by the Chamber %with another private entity, person, or organization for the performance of those services described in Section I.I. In the event that the Chamber enters into any arrangement, contractual or otherwise, with such other entity, person or organization, the Chamber shall cause such other entity, person, or organization to 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 Chamber 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 Chamber shall have exclusive control of its operations and perfonmance of services hereunder, and such persons, entities, or orgailizations performing the same and the Chamber shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The Chamber shall not be considered a partner or johit venturer with the City, nor shall the Chamber be considered nor in any manner hold itself out as an agent or official representative of the City. 5.3 Insurance. The Chamber shall,at a minimum,provide uisurance 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 01 10 93 ■ No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. 2. Business Automobile Policy ■ Combined Single Limits: $500,000 ■ Coverage for"Any Auto" Ayreement for Promotional and ToLU ist Services.Page 6 3. Workers' Compensation ■ Statutory Limits ■ Employer's Liability S500,400 ■ Waiver of Subrogation required. 4. Liquor/Dram Shop Liability for any event where alcohol will be provided or served ■ $500,000 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 famished 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. > A waiver of subrogation is required in favor of the City for Worker's Compensation Insurance. 5.4 Indemnitv. THE CHAMBER AGREES TO AND SHALL INDEMNIFY, 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 CHAMBER PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE CHAMBER'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR OMISSION BY THE CHAMBER, ITS AGENTS, AND EMPLOYES, WHEN PERFORMING SERVICES IN ACCORDANCE WITH THIS � AGREEMENT, WHERE SUCH INJURIES DEATH OR DAMAGES Agreement for Promotional and Tourist Services,Page 7 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 CHAMBER. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE CHAMBER AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE I, CHAMBER 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 (11) THE CHAMBER9S JOINT AND/OR SOLE NEGLIGENCE. FURTHERMORE, THE INDEIZNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE CITY FOR ANY CLAIM, i LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY ; WHERE THE INJURY, DEATH OR DAMAGE RE SULTS FROM THE SOLE NEGLIGENCE OF THE CITY, UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. IN THE WENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, THE ! CHAMBER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. The indemnity provided hereinabovc 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 eontauied Herein shall be construed in any way so as to waive in whole or part the City's sovereign immunity. The Chamber 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 Hurd 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 Chamber's work to be performed hereunder. This release shall apply with respect to the Chamber's work regardless of whether said claims,demands,and causes of action are covered in whole or in part by insurance. Agreement for Promotional and Tourist Services,Page 8 5.6 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement,the City and the Chamber hereby agree that no claim or dispute between the City and the Chamber 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 linuted to, the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, the Chamber consents to be joined in the arbitration proceeding if the Chamber's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 5.7 Assignment. The Chamber shall not assign this Agreement without first obtaining the written consent of the City. &8 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 snail,return receipt requested, or by hand-delivery, addressed to the respective parties as follows: CITE' CHAMBER City of Baytown Baytown Chamber of Commerce Attn: City Manager Attn:President and CEO P.O. Box 424 1300 Rollingbrook Dr., Suite 400 Baytown, TX 77522 Baytown, TX 77521 5.9 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 Chamber and their respective successors and assigns. 5.10 Application of Latins. 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. 5.11 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. 5.12 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 tern-is 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. 5.13 Duplicate Originals. This Agreement is executed in duplicate originals. Agreement for Promotional and Tourist Sens ices.Page 9 5.1.4 Headings. The headings and subheadings of the various sections and paragrfkphs of this Agreement are inserted merely for the purpose of convenience and do .not express or imply any lm* litation,definition,or extension of the specific terms of the section and paragraph so designated. 5.15 Severability. If any section, subsection,paragraph, sentence, clause,phrase or word in this Agreement or application thereof to any person or eircumstane I e is held invalid by any court of con1petent.jutisdiction, such holdhig shall not affect the validity of the remam" M` g portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such lid invaity. EXECUTED ON this the day of 1200-6- Wool CITY 0 BAY TOWN I By: --------------------- GARY JAqg ON, City Manager T: LORI I coo Y1 City Clerk BAYTOWN CHAMBER RCE THE S.WHEELER,Preside'ilt ATTEST: (Signature) �r (Printed NTame) a 4 (Title) R:\Karen\Fl*les\Co.ntracts\Charnber of Comnierce\kareement4AdvertisingServices.doc Ap-reenient for Promotional and Tourist Services Page 10