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Ordinance No. 10,802ORDINANCE NO. 10,802 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN AGREEMENT FOR ADVERTISING SERVICES AND PROMOTION OF THE ARTS WITH BAYSHORE FINE RIDES, INC., FOR ITS 20™ ANNUAL CAR SHOW AND CRUISE ON TEXAS AVENUE TO BE HELD ON APRIL 18, 2008 AND APRIL 19, 2008; AUTHORIZING PAYMENT OF HOTEL OCCUPANCY TAX REVENUES IN AN AMOUNT NOT TO EXCEED FIFTEEN THOUSAND AND NO/100 DOLLARS ($15,000.00); GRANTING A VARIANCE TO CHAPTER 42 "HEALTH AND SANITATION," ARTICLE V "LIVE OUTDOOR EXHIBITIONS," SECTION 42-286 "PERMIT REQUIRED" OF THE CODE OF ORDINANCES, CITY OF BAYTOWN, TEXAS, TO WAIVE THE DISTANCE REQUIREMENT FOR BAYSHORE FINE RIDES, INC.'S 20™ ANNUAL CAR SHOW AND CRUISE ON TEXAS AVENUE CONTINGENT UPON THE FILING OF THE REQUISITE APPLICATION; GRANTING A VARIANCE TO EXEMPT BAYSHORE FINE RIDES, INC.'S 20™ ANNUAL CAR SHOW AND CRUISE ON TEXAS AVENUE FROM THE PROVISIONS OF CHAPTER 74 "PEDDLERS AND SOLICITORS" OF THE CODE OF ORDINANCES, BAYTOWN, TEXAS, CONTINGENT UPON THE FILING OF AN APPLICATION AND RECEIVING A PERMIT FOR A LIVE OUTDOOR EXHIBITION; 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 Advertising Services and Promotion of the Arts with Bayshore Fine Rides, Inc., for its 20th Annual Car Show and Cruise on Texas Avenue. A copy of such agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment of hotel occupancy tax revenues to Bayshore Fine Rides, Inc., in an amount not to exceed FIFTEEN THOUSAND AND NO/100 DOLLARS ($15,000.00), pursuant to the agreement authorized in Section 1 hereof. Section 3: That contingent upon the filing of an application, the City Council of the City of Baytown hereby grants a variance to Chapter 42 "Health and Sanitation," Article V "Live Outdoor Exhibitions," Section 42-286 "Permit required" of the Code of Ordinances, Baytown, Texas, to waive the distance requirement for the Bayshore Fine Rides, Inc.'s 20lh Annual Car Show and Cruise to be held April 18, 2008, from 6:00 p.m. to 10:00 p.m. and April 19, 2008, from 9:00 a.m. to 5:00 p.m., on Texas Avenue between Felton and Commerce Streets. Section 4: That contingent upon Bayshore Fine Rides, Inc.'s filing of an application and receiving a permit for a live outdoor exhibition pursuant to Section 42-286 of the Code of Ordinances, Baytown, Texas, the City Council of the City of Baytown hereby grants a variance to exempt Bayshore Fine Rides, Inc.'s 20lh Annual Car Show and Cruise on Texas Avenue to be held on April 18, 2008, from 6:00 p.m. to 10:00 p.m. and April 19, 2008, from 9:00 a.m. to 5:00 p.m., on Texas Avenue between Felton and Commerce Streets, from the provisions of Chapter 74 "Peddlers and Solicitors" of the Code of Ordinances, Baytown, Texas. 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/ote of the City Council of the aytown this the 10lh day of January, 2008. ELVIN KNAW, Interim City OTerk DONCARLOS, Mayor APPROVED AS TO FORM: ACIO RAMIREZ, SR., Cit R:\Karen\Files\City Council\Ordinanccs\2008\January 10\FineRidesContractandVariances.doc 2 Agreement for Advertising Services and Promotion of the Arts STATE OF TEXAS § § COUNTY OF HARRIS § *" City °f Bayt0Wn' TexaS' a municiPal ^oration anon-profit corporation incorporated under the laws of a hotel occupancy *for *• 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 ^i^LT?iSOba™°™rmd Pr°m0tiOnaI prOgramS t0 attract touriste «* S lity or its vicinity; and WHEREAS, Section 351.101(a) of the Texas Tax Code also authorizes the City to use S"* mUIUCipal h°tel occuPmcy to to P^ote tourism and the convention and hotel SSS'"* iraproveraent ■*application of *• 5 WHEREAS, the Association will conduct its 20* Annual Car Show and Cruise on y M Pr°mOte t0UriSm 8nd *• COnvention ^ hotel « th. r-JTn^8' the Associ?ion ProP°ses *<> "se various means of advertising to promote the City of Baytown together with the Car Show; and ^ *6 City ^ ^ ^s00^0" desire t(> enter into an advertising services and CZT ♦ t T.ement Sub ^ t0 *"terms ^d conditions herein in order to S and promote tounsm and the convention and hotel industry; winange NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, the City and the Association agree as follows: Affleemept for Advertising Services and Pminotion of tire Art« Page EXHIBIT A I. USE OF HOTEL OCCUPANCY TAX REVENUE M Use of Funds. For and in consideration of the payment by the City to the Association of the agreed payments of hotel tax funds specified in Article III, the Association 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 Car Show. Funds wtich are unused shall be refimded to the City within fifteen (15) days after the conclusion of the Car Show. U Specific Restrictions on Use of Funds. The Association 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 Association 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 herein. II. RECORD KEEPING AND REPORTING REQUIREMENTS 2.1 Budget (a) The Association 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 Association funded by hotel occupancy tax revenue. This budget shall specifically identify proposed expenditures of hotel tax funds by the Association. 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 Association any hotel tax revenues as set forth in Article III of this Agreement unless a budget has been approved in writing by the City Council authorizing the expenditure of funds. (b) The Association acknowledges that the approval of such budget by the City Council creates a fiduciary duty in the Association with respect to the hotel occupancy tax funds paid by the City to the Association under this Agreement. The Association 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. 22 Separate Account The Association shall maintain any hotel tax funds paid to the Association by the City in a separate account and shall not commingle such funds with any other money. 23 Financial Records. The Association shall maintain complete and accurate financial records of each expenditure of the hotel occupancy tax funds made by the Association. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for Agreement for Advertising Seiviccs and Pfnmotion of the Art« 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 Association shall make such financial records available for inspection and review and shall provide copies of the same if so requested The Association 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 Association 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 Association shall prepare and deliver all reports to the City Clerk in a form and manner approved by the City Manager or his designee. The Association shall respond promptly to any request from the City Manager or his designee for additional infonnation relating to the activities performed under this Agreement 2.5 Annual Report Thirty (30) days after September 30, 2008, the Association 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 2.6 Notice of Meetings. The Association shall give the City Manager reasonable advance written notice of the time and place of all meetings of the Association's Board of Directors, as well as any other meeting of any constituency of the Association 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 Association's activities set forth in this Agreement, the City agrees to pay the Association an amount not to exceed FIFTEEN THOUSAND AND NO/100 DOLLARS ($15 000 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 Association "in performine the services required hereunder. M Due Date. The City shall pay the fee specified in Section 3.1 on or before the thirtieth (30 ) 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 Agreement for Advertising Services and Promotion of the Arts, Page 3 tourists to the Baytown area and the Car Show shall be refunded to the City within fifteen (15) days after the conclusion of the Car Show. 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 31,2008, or after the Association 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 Council, which are actually incurred for events and activities taking place within the term of this Agreement, are eligible for funding Any Sr tUreS °r lD1SPent ^ SMl be fOrfeited to Ae City upon titi f * 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 Association 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 Association will provide the Lily (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; (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 Association 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. Agreement for Advertising Services and Promotion of the Arts. Pagt-4 (a) The termination of the legal existence of the Association; (b) The insolvency of the Association, the filing of a petition in bankruptcy either voluntarily or involuntarily, or an assignment by the Association 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 Association 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 Association 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 Association 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 Association'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 t i!1^ ^u01" *!erforaiance of Servic«»-Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by the Association with another private entity person or organization for the performance of those services described in Section 1.1. In the event that'the Association enters into any arrangement, contractual or otherwise, with such other entity person or organization, the Association 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, md limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 52 Independent Contractor. The Association shall operate as an independent contractor as to of £"<£ £ Pf Omed "^ *is Agreement and not as an officer, agenTservant, oV^ploy^ services hereunder and such persons, entities, or organizations performing the same and the Association shall be solely responsible for the acts and omissions of its direct office* employees, agents, and subcontractors. The Association shall not be considered a partner or joint venturer with fce City, nor shall the Association be considered nor in any manner hold itself out as an agent or official representative of the City. Agreement for Advertising Services ami Promotion of th« Ait* page 5 S3 Insurance. The Association 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 01 10 93 ■ 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 Bavtown'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. > Eachuisurance 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'' pnor written notice by certified mail, return receipt requested, has been given to the s&^s md employees -to be m -Additionai > Additionally the Association shall furnish separate certificates and endorsements for each at-risk ^Z' ■ ,"?th0SC "W^W amusement activities. All coverage of such vendors shall be subject to all of the requirements stated herein. venaors snail be Indemnity. I E ASSOCIATION AGREES TO AND SHALL INDEMNIFY HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS [AGENTS AND EMPLOYEES (HEREINAFTER COLLECTIVELY I X??™ T° AS raE "CrrY">' ™°M A™ AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION fES^ UABILITY OF EVERY KIND, INCLUDING^ BuVnOT 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 l^SSS^^ PURSUANT TO ™S AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE ASSOCIATION'S BUSINESS OR ACTIVITIES. OR FROM ANY QtZ™ AOTeement for Advertising Services and Pmmotion of ih« OMISSION BY THE ASSOCIATION, 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 ASSOCIATION. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE ASSOCIATION AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE ASSOCIATION TO INDEMNIFY AND PROTECT THE CITY, ITS OFFICERS AGENTS AND EMPLOYEES FROM THE CONSEQUENCES OF (I) THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGUGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY DEATH OR DAMAGE WITH ANY OTHER PERSON OR ENTITY AND/OR (II) THE ASSOCIATION'S JOINT AND/OR SOLE NEGUGENCE. 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 ASSOCIATION FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE The indemnity provided hereinabove shall survive the termination and/or expiration of this Agreement. * SS Release. By this Agreement, the City does not consent to litigation or suit and the Citv 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 sovereim immunity The Association 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 Agreement for Advertising Services and Promotion of rhe At*; page 7 by or alleged to be caused by, arising out of, or in connection with the Association's work to be performed hereunder. This release shall apply with respect to the Association'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 Association hereby agree that no claim or dispute between the City and the Association 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 Association consents to be joined in the arbitration proceeding if the Association'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 Car Show is cancelled due to a force majeure, the refund obligations of the Association 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 Association 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: £ETY ASSOCIATION City of Baytown Bayshore Fine Rides, Inc. Ann: City Manager Ann: President P.O. Box 424 P.O. Box 2704 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 Association 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. Agreement for Advertising Services and Promotion of the Arts Page 8 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 mis 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 the day of __, 2007. CITYOFBAYTOWN By:. GARRISON C. BRUMBACK, City Manager ATTEST: LORRICOODY, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney Agreement for Advertising Services and Promotion of the Arts. Page 9 EXECUTED ON this the day of. ATTEST: y (Printed foame) y yy\ (Title) . 2007. BAYSHORE FINE RIDES, INC. 1 Bv: (Signature) (Printed Name) (Title) 1 L R:\Knren\Filcs\Contracts\FincRides\Agreement4AdvertisingServiccs2008.doc Agreement for Advertising Services and Promotion of the Arts. Page 10 Agreement for Advertising Services and Promotion of the Arts STATE OF TEXAS § COUNTY OF HARRIS § THIS AGREEMENT made between the City of Baytown, Texas, a municipal corporation (the"City"), and Bayshore Fine Rides, Inc., a non-profit corporation incorporated under the laws of the State of Texas (the"Association"). 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 the encouragement, promotion, improvement and application of the arts; including instrumental and vocal music;and WHEREAS, the Association will conduct its 20th Annual Car Show and Cruise on Texas Avenue, which will be held on April 18th and 19th of 2008, which features musical talent expected to directly enhance and promote tourism and the convention and hotel industry (the "Car Show"). WHEREAS, the Association proposes to use various means of advertising to promote the City of Baytown together with the Car Show; and WHEREAS, the City and the Association desire to enter into an advertising services and promotion of the arts 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 Association agree as follows: Agreement for Advertising Services and Promotion of the Arts,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 Association of the agreed payments of hotel tax funds specified in Article III, the Association 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 Car Show. Funds which are unused shall be refunded to the City within fifteen (15) days after the conclusion of the Car Show. 1.2 Specific Restrictions on Use of Funds. The Association 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 Association 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 herein. II. RECORD KEEPING AND REPORTING REQUIREMENTS 2.1 Budget. (a) The Association 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 Association funded by hotel occupancy tax revenue. This budget shall specifically identify proposed expenditures of hotel tax funds by the Association. 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 Association any hotel tax revenues as set forth in Article III of this Agreement unless a budget has been approved in writing by the City Council authorizing the expenditure of funds. (b) The Association acknowledges that the approval of such budget by the City Council creates a fiduciary duty in the Association with respect to the hotel occupancy tax funds paid by the City to the Association under this Agreement. The Association 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 Association shall maintain any hotel tax funds paid to the Association by the City in a separate account and shall not commingle such funds with any other money. 2.3 Financial Records. The Association shall maintain complete and accurate financial records of each expenditure of the hotel occupancy tax funds made by the Association. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for Agreement for Advertising Services and Promotion of the Arts,Page 2 contracted services, including, but not limited to, auditingfees and attorneyfees. Upon reasonable P advance written request of the City Manager or his designee, the Association shall make such financial records available for inspection and review and shall provide copies of the same if so requested. The Association 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 Association 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 Association shall prepare and deliver all reports to the City Clerk in a form and manner approved by the City Manager or his designee. The Association 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. Thirty (30) days after September 30, 2008, the Association 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. 2.6 Notice of Meetings. The Association shall give the City Manager reasonable advance written notice of the time and place of all meetings of the Association's Board of Directors, as well as any other meeting of any constituency of the Association 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 Association's activities set forth in this Agreement, the City agrees to pay the Association an amount not to exceed FIFTEEN THOUSAND AND NO/100 DOLLARS ($15,000.00) 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 Association in performing the services required hereunder. 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 Agreement for Advertising Services and Promotion of the Arts,Page 3 tourists to the Baytown area and the Car Show shall be refunded to the City within fifteen (15) days after the conclusion of the Car Show. 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, 2008, or after the Association 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 Council, 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 Association 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 Association 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; (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 ternnation. Any use of remaining funds by the Association 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: Agreement for Advertising Services and Promotion of the Arts,Page 4 (a) The termination of the legal existence of the Association; (b) The insolvency of the Association, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by the Association 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 Association 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 Association 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 Association 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 Association'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 Association with another private entity, person, or organization for the performance of those services described in Section 1.1. In the event that the Association enters into any arrangement, contractual or otherwise, with such other entity, person or organization, the Association 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 Association 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 Association shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the Association shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The Association shall not be considered a partner or joint venturer with the City,nor shall the Association be considered nor in any manner hold itself out as an agent or official representative of the City. Agreement for Advertising Services and Promotion of the Arts,Page 5 5.3 Insurance. The Association 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 01 10 93 • 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 Association 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 ASSOCIATION 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 ASSOCIATION PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE ASSOCIATION'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR Agreement for Advertising Services and Promotion of the Arts,Page 6 OMISSION BY THE ASSOCIATION, 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 ASSOCIATION. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE ASSOCIATION AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE ASSOCIATION 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 ASSOCIATION'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 ASSOCIATION 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 Association 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 Agreement for Advertising Services and Promotion of the Arts,Page 7 by or alleged to be caused by, arising out of, or in connection with the Association's work to be performed hereunder. This release shall apply with respect to the Association'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 Association hereby agree that no claim or dispute between the City and the Association 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 Association consents to be joined in the arbitration proceeding if the Association'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 Car Show is cancelled due to a force majeure, the refund obligations of the Association 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 Association 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: CITY ASSOCIATION City of Baytown Bayshore Fine Rides, Inc. Attn: City Manager Attn: President P.O. Box 424 P.O. Box 2704 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 Association 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. Agreement for Advertising Services and Promotion of the Arts,Page 8 • 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 the gjliay of 1 /I' 204:. �........,..,_ .CITY OF :, • • s����p,YTOWN=: II JL Nt B y: GARRISON C. BRU CK, City Manager A TE • e RR4-C-OODY rty-EletlE- KELVIN KNAUF, Interim C, 'y Clerk APPROVED AS TO FORM: NACIO RAMIREZ, SR, ty ttomey Agreement for Advertising Services and Promotion of the Arts,Page 9 EXECUTED ON this the day of , 2007. BAYSHORE FINE RIDES, INC. 1„..eP By: / (Signature) (Printed Name) PtZES.x_ (Title) ATTEST: gna y S m psDA/ (Printed ame) (Title) R:\Karen\Fi1es\Contracts\Fine Rides\Agreement4AdvertisingServices2008.doc Agreement for Advertising Services and Promotion of the Arts,Page 10