Ordinance No. 10,841ORDINANCE NO. 10,84 1
AN ORDIN.,kNCE (.A" THE.., CITY 0.)UNCIL OF THE., CITY OF BAYTONVN, TEXAS,
A VI-Il0RIZ[NG ANI) INRECIING LIE, CITY MAWG'ER EXECUTE AND THE
WlTl-lTlIl--.'BAY()U B{t.AVI- ASSOCWFION FOR THE WS BAYOIJ BOkkl-, AUTHORIZiN(i
IN AN A,,M0UN-J N(J1 11) EXCEED AND NV1100
DOLLARS 655M0000Y MAKIN() ()TUR PROVISIONS RL,'] A] ED HIERLTO: AN'D
I1RW,,]DIN6 FOR THE EFFECHNA DATE THEREOF,
Evi Tr O WIED BY T1 IF ClTY0-)LJNCJl- OF "HE CTIA"
Section k TV d Cil Councd of the Clyof Baymmin 1'exaq, herebyauthorizes -ar�d the Cl�y
Manager 10 CXCUM and the Interim t iter ("lerk m aLtcst to ari ALgreement for Adverl i singSery ices Nvilh the Bayou
l3w,vl A�sociation nw the 2008 Eialm HowL A copy orsaid Agreement is attached hereto, marked Exhibit 'A," and
part hercof Aw a H humts and puigows.
Swim 2: Thm ow wy cymn of me njurwyumm authorizes fiands payaNe to dle Bayou Ho%vl
in un amom nw to exceed F I N1 F, TH(A, � SANE) AND NCKUX) DOLLARS (, 55,000.00) for
.adm,[lqaslvalive alld ajon"Vig smices in accordance wil theAgreennnt nutorded in Sectloii I herbriahow.
sectiml 3: 'Mai the Cay klanager is hernt, granad general authorit�i to apj:wcive as klecmlse or an
increuse in co't,,sby-[\Vl-.N orless, provided 0-w the
anuant auloinized in Secrion 2 hereofninl/ nc�l be nwwawd by mme than twent.,,�-flve percent (25'�';,).
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me (my of Balow,
rNIRODL I ED. READ and PASSED by dw aMunwho we of me CA 10"Oumil orthe Cily ofl3ayl�owrl 10",
the , ofl`ebraa
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Agreement for Advertising Services for the 6th Annual Bayou
Bowl
STATE OF TEXAS §
S
COUNTY OF HARRIS §
TIIIS AGREEMENT made between the City of Baytown. Texas, a municipal corporation
(the "City "), and the Bayou Bowl Association, 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. the Association will conduct its 6`" Annual Bayou Bowl, which will be held
Oil June 8, 2008, in Stallworth Stadium. and which features Texas High School Football All-
Stars vs. Louisiana Football All -Stars (the "Bayou Bowl ").
WHEREAS, the Association proposes to use various means of advertising to promote
the City of Baytown together Nvith the Bayou Bowl; and
WI- IEREAS, the City and the Association desire to enter into an advertising 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 and contract effective February 28,
2008. 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 Association of
the agreed payments of hotel tax funds specified in Article 111, 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:
AL,reement for Ad%ertisine Services, Page I
EX111BTT A
(a) a minimum of five. 30- second advertising spots during the Bayou Bowl
advertising the City or its vicinity;
(b) opening and closing billboards advertising the City or its vicinity;
(c) in -game TV features advertising and promoting the City or its vicinity;
(d) half -time interviews with city designees in order to promote the City and its vicinity;
(c) game program ad. advertising the City or its vicinity;
(f) game signage, to the extent the same advertises the City or its vicinity,
Folds which are unused shall be refunded to the City within fifteen (15) days after the conclusion
of the Bayou Bowl.
1.2 .administrative Costs. The hotel occupancy tax funds received from the City by the
Association 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 Association agrees to demonstrate strict compliance with the record keeping and
apportionment limitations imposed by Sections 351.101(1), 351.103 and 351.104 ol' the
Texas Tax Code. as applicable. The Association shall not utilize hotel occupancy tax ti.unds
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
cfticient and professional manner.
II.
RECORD KEEPING :VND REPORTING REQt "IREMENTS
2.1 Budget.
(a) The Association shall prepare and submit to the City Manager of the City an annual budget
I'm- 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
Aureement for Ad%ertisins: Services, Page 2
any hotel tax revenues as set forth in Article III of this Agreement unless a budget has been
approved in Nv1-iting by the City Council authorizing the expenditure of ftinds.
(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 hinds 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 ft►nds 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
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 finds, and within
thirty (30) days after the end of every contract quarter, 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 fi•ont 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
Avreement for Advertising Services, Page 3
as any other meeting of any constituency of the Association at which this Agreement or any matter
subject to this Agreement shall be considered.
M.
HOTEL OCCUPANCY TAY REVENUE PAYNIENTS
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 FIFTY -FIVE THOUSAND AND NO /100 DOLLARS (555.000.00) 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
(30`x') day after receiving a proper invoice therefor. However, the parties agree that any fiends
not used for advertising and conducting promotional programs to attract tourists to the Baytown
area and the Bayou Bowl shall be refunded to the City within fifteen (15) days after the
conclusion of the Bayou Bowl.
1V.
TERM AND TE12MINATION
4.1 Term. The tern of this Agreement shall commence on February 28, 2008, and terminate
October 30, 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 tern 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
ALreement for Advertising Services, Page 4
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 fi-om 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 l .1.
4.3 :automatic Termination. This Agreement shall automatically terminate upon the
occurrence of any of the following events:
(a) Tile termination of the legal existence of the Association;
(b) The insolvency of the Association. the tiling 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. 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,
Aueement for Advertising Services, Page 5
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 firnds 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.
5.3 Insurance. The Association shall, at a minimum, provide insurance as follows:
1. Commercial General Liability
• General Aggregate: S1,000.000
• Per Occurrence: 5500.000
• 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: 5500,000
• Coverage for "Any Auto"
3. Workers' Compensation
• Statutory Limits
• Employer's Liability 5500.000
• Waiver of Subrogation required.
Upon execution of this Agreement.. the Association shall file with the City valid Certificates of
Insurance and endorsements acceptable to the City. The following are general requirements
applicable to all policies:
ANI Best Ratina 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'
Agreement for Advertisinu Services, Page 6
prior %vritten 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 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, I
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 «'ITH 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 '
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 TFIIS
PARAGRAPH IS INDEMNITY BY THE ASSOCIATION TO
INDEMNIFY AND PROTECT THE CITY, ITS OFFICERS,
AGENTS AND EMPLOYEES FROM THE CONSEQUENCES OF (1)
THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE
IS A CONCURRING CAUSE OF THE RESULTING INJURY,
DEATH OR DANIAGE 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
Agreement for Advertising Services, Page 7
OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF
THE CITY, UNMIXED WITH THE FAULT OF ANN' OTHER
PERSON OR ENTITY. IN THE EVENT THAT ANY ACTION OR
PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON
OF ANN' 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
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 .-assignment. The Association 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:
At4reement for Advertising Services, Page 8
CITY
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
ASSOCIATION
Bayou Bowl Association
Attn: Chairman
P.O. Box 330
Baytown, TX 77522
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 Association and their respective successors and assigns.
5.10 Application of Lasys. 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 frilly 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.
5.13 Duplicate Originals. This Agreement is executed in duplicate originals.
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, detinition, 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
Agreement for Advertising Services, Page 9
2008.
CITY OF BAYTOWN
By:
GARRISON C. BRUMBACK, City Manager
ATTEST:
KELVIN KNAUF.. Interim City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
BAYOU BOWL ASSOCIATION
an
(Signature)
(Printed Name)
(Title)
ATTEST:
( Signattre)
(Printed Name)
(Title)
R:%Karen \Files \Contracts \Bayou Bowl Letter Agreement\ 20081Agreement4AdvertisingServices .doc
Agreement for Advertisine Services, Page 10
•• •i
Agreement for Advertising Services for the 6th Annual Bayou
Bowl
STATE OF TEXAS §
COUNTY OF HARRIS §
THIS AGREEMENT made between the City of Baytown, Texas, a municipal corporation
(the"City"), and the Bayou Bowl Association, a 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, the Association will conduct its 6th Annual Bayou Bowl, which will be held
on June 8, 2008, in Stallworth Stadium, and which features Texas High School Football All-
Stars vs. Louisiana Football All-Stars(the"Bayou Bowl").
WHEREAS, the Association proposes to use various means of advertising to promote
the City of Baytown together with the Bayou Bowl; and
WHEREAS, the City and the Association desire to enter into an advertising 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 and contract effective February 28,
2008,as follows:
I
USE OF HOTEL OCCUPANCY TAX REVENUE
1.1 Use of Funds. For and in 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:
Agreement for Advertising Services,Page 1
•• ••
(a) a minimum of five, 30-second advertising spots during the Bayou Bowl
advertising the City or its vicinity;
(b) opening and closing billboards advertising the City or its vicinity;
(c) in-game TV features advertising and promoting the City or its vicinity;
(d) half-time interviews with city designees in order to promote the City and its vicinity;
(e) game program ad,advertising the City or its vicinity;
(f) game signage,to the extent the same advertises the City or its vicinity;
Funds which are unused shall be refunded to the City within fifteen (15) days after the conclusion
of the Bayou Bowl.
1.2 Administrative Costs. The hotel occupancy tax funds received from the City by the
Association 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 Association 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 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 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.
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
Agreement for Advertising Services,Page 2
•• N
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
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
fmancial 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, 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
Agreement for Advertising Services Page 3
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 FIFTY-FIVE THOUSAND AND NO/100 DOLLARS ($55,000.00) from
hotel occupancy tax revenues. The parties understand and agree that the City's obligation
hereunder shall not be greater than the actual expense incurred by the 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 advertising and conducting promotional programs to attract tourists to the Baytown
area and the Bayou Bowl shall be refunded to the City within fifteen (15) days after the
conclusion of the Bayou Bowl.
IV.
TERM AND TERMINATION
4.1 Term. The term of this Agreement shall commence on February 28, 2008, and terminate
October 30, 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
Agreement for Advertising Services,Page 4
040
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.
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 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. 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,
Agreement for Advertising Services,Page 5
IMO
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.
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.
2. Business Automobile Policy
• Combined Single Limits: $500,000
• Coverage for"Any Auto"
3. Workers' Compensation
• Statutory Limits
• Employer's Liability $500,000
• Waiver of Subrogation required.
Upon execution of this Agreement, the Association shall file with the City valid Certificates of
Insurance and endorsements acceptable to the City. 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'
Agreement for Advertising Services,Page 6
• S. I
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 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
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
Agreement for Advertising Services,Page 7
4
•
M M
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
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 Assignment. The Association 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:
Agreement for Advertising Services,Page 8
SO
CITY ASSOCIATION
City of Baytown Bayou Bowl Association
Attn: City Manager Attn: Chairman
P.O. Box 424 P.O. Box 330
Baytown, TX 77522 Baytown,TX 77522
5.9 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 Association 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.
5.13 Duplicate Originals. This Agreement is executed in duplicate originals.
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.
FA
EXECUTED ON this the ay of ,2008.
CI F1.36
By.
G ON C. BRUMBACK, City Manager
Agreement for Advertising Services Page 9
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Agreement for Advertising Services,Page 10