Ordinance No. 10,659ORDINANCE NO. 10,659
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, MAKING A CHANGE IN THE CITY OF BAYTOWN'S FISCAL
YEAR 2006-2007 BUDGET FOR MUNICIPAL PURPOSES IN ORDER TO
REPROGRAM FUNDS IN THE HOTEL OCCUPANCY TAX CONTINGENCY
FUND FOR THE COST OF TOURISM AND PROMOTION SERVICES TO BE
PROVIDED BY THE ECONOMIC ALLIANCE HOUSTON PORT REGION;
AUTHORIZING AND DIRECTING THE INTERIM CITY MANAGER TO
EXECUTE AND THE CITY CLERK TO ATTEST TO AN ECONOMIC
DEVELOPMENT AGREEMENT FOR TOURISM AND PROMOTION
SERVICES WITH ECONOMIC ALLIANCE HOUSTON PORT REGION TO
ENHANCE AND PROMOTE TOURISM AND THE CONVENTION AND
HOTEL INDUSTRY IN THE CITY OF BAYTOWN AND ITS VICINITY;
AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT
NOT TO EXCEED TEN THOUSAND AND NO/100 DOLLARS ($10,000.00);
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 2006-2007 budget for municipal purposes to reprogram TEN
THOUSAND AND NO/100 DOLLARS ($10,000.00) in the hotel occupancy tax contingency
fund for the cost of tourism and promotion services to be provided by the Economic Alliance
Houston Port Region, 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 Interim City Manager to execute and the City Clerk to attest to an Economic
Development Agreement for Tourism and Promotion Services with Economic Alliance Houston
Port Region to enhance and promote tourism and the convention and hotel industry in the City of
Baytown and its vicinity. A copy of said agreement 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 to
Economic Alliance Houston Port Region in an amount not to exceed TEN THOUSAND AND
NO/100 DOLLARS ($10,000.00) for promotional and advertising services in accordance with
the Agreement authorized in Section 2 hereinabove.
Section 4: That the Interim City Manager is hereby granted general authority to
approve a decrease or an increase in costs by TWENTY-FIVE THOUSAND AND NO/100
DOLLARS ($25,000.00) or less, provided that the amount authorized in Section 2 hereof may
not be increased by more than twenty-five percent (25%).
Section 5: 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 ydt
City of Baytown this the 26th day of July, 2007.
of the City Council of the
STEPHEN H. DONCARLOS, Mayor
LORRICOODY, Cjty Clerk
APPROVED AS TO FORM:
RAMIREZ, SR/Ajty Attorney
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Hotel/Motel Fund
Summary of Budget Adjustments
2006-07 Contingency $ 90 000
2006-07 Budget Adjustment -Allocation for Economic Alliance Houston Port Region (10,000)
Revised Allocation for Hotel/Motel Fund -Contingency $ 80,000
2006-07 Economic Alliance Houston Port Region $
2006-07 Budget Adjustment -Allocation for Economic Alliance Houston Port Region 10,000
Revised Allocation for Economic Alliance Houston Port Region ~$ 10.000
Exhibit "A"
ECONOMIC DEVELOPMENT SERVICES AGREEMENT
FOR TOURISM AND PROMOTION SERVICES
THIS Economic Development Services Agreement for Tourism and Promotion Services
("Agreement") is made and entered into by and between the Economic Alliance Houston Port
Region, a Texas non-profit corporation, (hereinafter the "Alliance"), and the City of Baytown, a
home-rule municipal corporation (the "City") for the purposes described herein.
WHEREAS, the Alliance is a non-profit corporation organized to promote economic
development with an emphasis on performance in the southeast portion of Harris County and
specifically has undertaken a tourism development project called Project Stars; and
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 desires to participate in cooperative projects with the Alliance
through Project Stars in order to enhance and promote tourism and the convention and hotel
industry in the City and its vicinity; and
WHEREAS, the Alliance is qualified and willing to perform such functions;
NOW THEREFORE, in consideration of the covenants and conditions stated herein, and
in consideration of the mutual benefits that will accrue to each to the Alliance and the City
(collectively the "Parties"), as well as to the citizens of the City of Baytown, Texas, the Parties
have agreed and do hereby agree as follows:
ARTICLE I
Qualifications of the Alliance
The Alliance represents that:
a. the Alliance is a non-profit entity that is authorized to promote tourism in Harris
County and is currently in good standings with the State and Federal government;
b. the Alliance is engaged in an on-going effort to attract tourists to East Harris County
through Project Stars and other projects; and
c. the Alliance hereby agrees to participate in joint projects and coordinate its activities
with the City in an effort to reduce duplication of services and to enhance cooperation
regarding tourism development and specifically Project Stars.
Economic Development Services Apreement. Page 1 B
ARTICLE II
Scope of Services
2.01 For and in consideration of the payment by the City to the Alliance, the Alliance 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. To that end, the Alliance will provide to the
City of Baytown the following services:
a. Promote or advertise the City of Baytown and its surrounding area to attract
conventions, visitors and businesses;
b. Present Baytown in the marketing materials and programs of the Alliance,
including its regional website and newly created San Jacinto Texas Historic
District ("Project Stars");
c. Provide copies of Alliance publications;
d. Invite City officials and staff to all events, workshops or forums organized and/or
hosted by the Alliance;
e. Reserve one voting membership position on the Board of Directors of the
Alliance for a designee of the City of Baytown;
f. Reserve one voting membership position on the Board of Directors of the
Alliance for a designee of the Baytown Chamber of Commerce; and
g. Perform such other duties as may be agreed upon between the Parties from time to
time in writing.
i
2.02 The Alliance 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 Alliance shall not utilize hotel occupancy tax funds for
any expenditure which has not been specifically documented to satisfy the purposes set forth
in Sections 2.01 hcrcinabove.
2.03 The Alliance shall prepare and submit to the City Manager of the City an annual budget for
approval by the City Council, for such operations of the Alliance funded by hotel occupancy
tax revenue. This budget shall specifically identify proposed expenditures of hotel tax funds
by the Alliance. 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 Alliance any hotel tax
revenues unless a budget has been approved in writing by the City Council authorizing the
expenditure of funds. The Alliance acknowledges that the approval of such budget by the
City Council creates a fiduciary duty in the Alliance with respect to the hotel occupancy tax
funds paid by the City to the Alliance under this Agreement. The Alliance shall expend
Economic Development Services Agreement. Page 2
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.
2.04 The Alliance shall maintain any hotel tax funds paid to the Alliance by the City in a separate
account and shall not commingle such funds with any other money.
2.05 The Alliance shall maintain complete and accurate financial records of each expenditure of
the hotel occupancy tax funds made by the Alliance. 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 Alliance shall make such financial
records available for inspection and review and shall provide copies of the same if so
requested. The Alliance 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.
2.06 After initial receipt of the hotel occupancy tax funds, and within thirty (30) days after the
end of every contract quarter, the Alliance 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 Alliance shall prepare and deliver all reports to the City Clerk in a form and manner
approved by the City Manager or his designee. The Alliance shall respond promptly to any
request from the City Manager or his designee for additional information relating to the
activities performed under this Agreement.
2.07 Thirty (30) days after the end of each year of this Agreement and at such other times as
may be requested by the City Manager, the Alliance will furnish to the City a
performance report of its work under this Agreement which shall reflect overall activities
conducted, expenditures made pursuant to this Agreement, and other information as may
be required by the City.
ARTICLE III
Term
3.01 Subject to Section 3.02 and Article V, this Agreement is for the period beginning
July 1,2007, and ending July 31,2010.
Economic Development Services Agreement. Page 3
3.02 It is expressly understood and agreed by both the Alliance and the City that any term of
this Agreement beyond the first calendar year Agreement is contingent upon funds being
appropriated by the City Council of the City for services to be provided pursuant to this
Agreement. Should funds not be appropriated, this Agreement shall become null and
void without further notice and both parties shall be relieved of any and all obligations
hereunder after the expiration of the period for which funds were appropriated, with the
exception of the liabilities and obligations assumed by the Alliance herein.
ARTICLE IV
Terms of Payment and Service Reporting
4.01 Subject to Section 4.04 of this Agreement, the City agrees to pay the Alliance an amount
not to exceed THIRTY THOUSAND AND NO/100 DOLLARS ($30,000.00) over a
three-year contract period, billed in annual installments of TEN THOUSAND AND
NO/100 DOLLARS ($10,000.00). Such payment shall be made 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 Alliance in performing the services
required hereunder.
4.02 The Alliance shall submit three annual billing statements to the City, each for TEN
THOUSAND AND NO/100 DOLLARS ($10,000.00), within thirty (30) days of
July 1,2007, July 1,2008, and July 1,2009.
4.03 The City shall process such statements and make payment within thirty (30) days after
receiving a proper invoice therefor.
4.04 The parties understand and agree that any funds not used for advertising and conducting
promotional programs to attract tourists to the Baytown area in accordance with this
Agreement in any given year shall be refunded tothe City within fifteen (15) days after
the conclusion of each such year.
ARTICLE V
Termination
5.01 Either party may terminate this Agreement upon ten (10) days' written notice for any or
no reason.
5.02 Either party may terminate this Agreement upon ten (10) days' written notice upon
default by the other party. Default by a party occurs if the party fails to perform or
observe any of the terms and conditions of this Agreement required to be performed or
observed by that party. Should a default occur, the party against whom the default has
occurred has the right to terminate all or part of its duties under this Agreement as of the
thirtieth (30th) day following the receipt by the defaulting party of a notice describing the
default and intended termination, provided: (i) the termination is ineffective if within the
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thirty-(30) day period the defaulting party cures the default or (ii) the termination may be
stayed, at the sole option of the party against whom the default has occurred, pending
cure of the default.
5.03 Should this Agreement be terminated pursuant to Section 5.01 or 5.02, within ten days
from the termination notification, the Alliance shall provide a listing of expenditures that
have occurred since the annual period for which funds were last appropriated together
with a final accounting of all expenditures and tax funds on the day of termination.
Any use of remaining funds by the Alliance 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.
ARTICLE VI
Miscellaneous
6.01 The relationship of the Alliance 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
Alliance's employees or representatives, shall have no authority over the Alliance's
decisions, and shall have no rights to ownership of internal working papers or other
information or data of the Alliance, except as otherwise specifically authorized or
required herein.
6.02 This Agreement shall be binding upon and inure to the benefit of the City and the
Alliance and shall not bestow any rights on any third parties.
6.03 Failure of either party hereto to insist on the strict performance of any of the provisions
hereof or failure of performance, shall not be considered a waiver of the right to insist on
or 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 failure of
performance.
6.04 This Agreement shall be subject to and construed in accordance with the laws of the State
of Texas and of the United States of America and is performable in Harris County, Texas.
6.05 All notices required or allowed hereunder shall be given in writing and shall be deemed
delivered when actually received or on the third day following its deposit into a United
States Postal Service post office or receptacle with prepaid postage affixed thereto, and
sent by certified mail, return receipt requested, addressed to the respective party at the
address set forth below, or at such other address the receiving party may have theretofore
prescribed by written notice to the sending party:
Economic Development Services Agreement. Page 5
If to BAYTO WN: CITY OF BAYTO WN
Attention: City Manager
2401 Market Street
Baytown, TX 77520
If to the ALLIANCE: ECONOMIC ALLIANCE
HOUSTON PORT REGION
Attention: Jan Lawler, President/CEO
908 W. Main Street
LaPorte,TX 77571
Fax: 281-867-1106
6.06 If any of the terms, provisions, covenants, conditions or any other part of this Agreement
is held for any reason to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants, conditions or any other part of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
6.07 This Agreement contains the entire agreement of the parties, superseding all oral or
written previous and contemporaneous agreements between the Parties relating to the
matters herein. Any changes or amendments hereto must be in writing and signed by
both parties.
6.08 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 Alliance 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 Alliance's work to be
performed hereunder. This release shall apply with respect to the Alliance's work
regardless of whether said claims, demands, and causes of action are covered in whole or
in part by insurance.
6.09 The Alliance shall not assign this Agreement without first obtaining the written consent of
the City.
6.10 The headings of this Agreement are for the convenience of reference only and shall not
affect in any manner any of the terms and conditions hereof.
6.11 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.
Economic Development Services Agreement. Page 6
6.12 The officers executing this Agreement on behalf of the Parties hereby represent that such
officers have full authority to execute this Agreement and to bind the party he/she
represents.
IN WITNESS WHEREOF, the parties hereto have executed this Contract in multiple
copies, each of which shall be deemed to be an original, but all of which shall constitute but one
and the same agreement on the day of July, 2007, the date of execution by the Interim City
Manager of the City of Baytown.
ATTEST/SEAL:
Date Signed:
ECONOMIC ALLIANCE
HOUSTON PORT REGI0N
B J^juudh^
Date Signed:
ATTEST/SEAL:
By:.
Name:_
Title:
Date Signed:
CITY OF BAYTOWN
By:.
Name:_
Title:
Date Signed:_
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