Ordinance No. 10,886ORDINANCE NO. 10.886
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 BAY AREA
MINISTERIAL ALLIANCE FOR ITS SUMMERFEST 08 FESTIVAL TO BE
HELD ON AUGUST 23, 2008: AUTfIORIZING 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 BAY AREA MINISTERIAL
ALLIANCE'S SUIvfMERFEST 08 FESTIVAL CONTINGENT UPON THE
FILIIvTG OF THE REQUISITE APPLICATION; GRANTING A VARIANCE TO
EXEMPT BAY AREA MINISTERIAL ALLIANCE'S SUMMERFEST 08
FESTIVAL 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 TIIE 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 Bay Area Ministerial Alliance for its Summerfest 08
festival. 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 Bay Area Ministerial Alliance in an amount not to exceed FIFTEEN
THOUSAND AND NO /100 DOLLARS ($1.000.00). pursuant to the agreement authorized in
Section l 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 "Pen-nit required" of the Code of Ordinances, Baytown,
Texas, to waive the distance requirement for the Bay Area Ministerial Alliance's Summerfest 08
Festival to be held August 23. 2008, from noon to 10:00 p.m., at Bicentennial Park.
Section 4: That contingent upon Bay Area Ministerial Alliance's filing of an
application and receiving a pen-nit 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 exclnj:�t Bay 'Area /Uhance*s Surnmerlbsi 08 WON to be held cc August
23, 2008, thms nacm U) 1000 p.m. at Bicentennial N& Nom Te InoWskns of Map= 7.4
WYNAmy uml WEAK or the C'ode ofUnlinance, Hayumn. Texas.
Section 5: This ordim,,,mce shall We eflOct immudimely 14mu and aher its pamp by
the City Chmncd of le Cly cd Mpo"n,
I RODU'�(:,ED., ancl 11,ASSM by Q Wnnahvc Vt)'Ilk'�"OIAIC' City COILHICd Offlh-
01 of Ba�iami dds the go day u r May 2008.
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Exhibit "A"
Agreement for Advertising Services
STATE OF TEXAS §
COUNTY OF HARRIS §
THIS AGREEMENT made between the City of Baytown, Texas, a municipal corporation
(the "City "), and Bay Area Ministerial Alliance, Inc., a non -profit corporation incorporated under
the laws of the State of Texas (the "Alliance ").
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 Alliance will conduct Summerfest 08 at Bicentennial Park on August 23,
2008, which features musical talent expected to directly enhance and promote tourism and the
convention and hotel industry (`Summerfest" ).
WHEREAS, the Alliance proposes to use various means of advertising to promote the
City of Baytown together with the Summerfest; and
WHEREAS, the City and the Alliance desire to enter into an advertising services
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 perfonnance of the mutual covenants and
promises contained herein, the City and the Alliance agree 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 Alliance of the
agreed payments of hotel tax funds specified in Article III, the Alliance agrees to use such hotel tax
funds for advertising and conducting solicitations and promotional programs to attract tourists to the
City in a manner that directly enhances and promotes tourism and the convention and hotel
industry by providing advertising services associated with the Summerfest.
Funds which are unused shall be refunded to the City within fifteen (15) days after the conclusion
of Summerfest.
AgEeement for Advertising Services. Page I
1.2 Specific Restrictions on Use of Funds. The Alliance agrees to demonstrate strict
compliance with the record keeping and apportionment limitations imposed by Sections 351.101(8),
351.103 and 351.104 of the Texas Tax Code, as applicable. The Alliance shall not utilize hotel
occupancy tax funds for any expenditure which has not been specifically documented to satisfy the
purposes set forth in Sections 1.1 and 1.2 herein.
IT.
RECORD KEEPING AND REPORTING REQUIREMENTS
2.1 Budget.
(a) The Alliance shall prepare and submit to the City Manager of the City an annual budget for
approval by the City Council, for such operations of the Alliance funded by hotel occupancy
tax revenue. This budget shall specifically identify proposed expenditures of hotel tax funds
by the Alliance. Based upon the budget, the City should be able to audit specifically the
purpose of each individual expenditure of hotel occupancy tax funds from the separate
account relating to hotel tax funds. The City shall not pay to the Alliance any hotel tax
revenues 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 Alliance acknowledges that the approval of such budget by the City Council creates a
fiduciary duty in the Alliance with respect to the hotel occupancy tax funds paid by the City
to the Alliance -under this Agreement. The Alliance shall expend hotel tax occupancy fiends
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 Alliance shall maintain any hotel tax funds paid to the Alliance
by the City in a separate account and shall not commingle such fiends with any other money.
2.3 Financial Records. The Alliance shall maintain complete and accurate financial records
of each expenditure of the hotel occupancy tax funds made by the Alliance. These funds shall be
classified as restricted funds for audited financial purposes, and may not be used for contracted
services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance
written request of the City Manager or his designee, the Alliance shall make such financial records
available for inspection and review and shall provide copies of the same if so requested. The
Alliance understands and accepts that all such financial records, and any other records relating to
this Agreement shall be subject to the Texas Public Information Act, as hereafter amended, and the
Local Government Records Act, as amended.
2.4 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 Alliance
shall famish to the City a quarterly report, including:
(1) a completed financial report,
Agreement for Advertising Services, Page 2
(2) a list of the expenditures made or copies of the invoice or receipts with regard to
hotel occupancy tax funds pursuant to TEX. TAX CODE §351.101(c), and
(3) a copy of all financial records (e.g., copies of front and back cleared checks or bank
statements, and other relevant documentation).
The Alliance shall prepare and deliver all reports to the City Clerk in a form and manner approved
by the City Manager or his designee. The Alliance shall respond promptly to any request from the
City Manager or his designee for additional information relating to the activities performed under
this Agreement.
2.5 Annual Report. Thirty (30) days after September 30, 2008, the Alliance will famish 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 Alliance shall give the City Manager reasonable advance written
notice of the time and place of all meetings of the Alliance's Board of Directors, as well as any
other meeting of any constituency of the Alliance 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
Alliance's activities set forth in this Agreement, the City agrees to pay the Alliance 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 Alliance 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 Summerfest shall be refunded to the City within fifteen (15) days after the
conclusion of the Summerfest.
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 Alliance 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.
Agreement for Advertising Services, Page 3
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
Alliance 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 42(a), the Alliance 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 fiends on the day of termination.
Any use of remaining funds by the Alliance after notification of termination and prior to
termination is conditioned upon such contractual obligations having been incurred and
entered into in the good faith performance of those services contemplated in Section 1.1.
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 Alliance;
(b) The insolvency of the Alliance, the filing of a petition in bankruptcy, either
voluntarily or involuntarily, or an assignment by the Alliance 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 Alliance 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 Alliance to submit a financial quarterly report which complies
with the reporting procedures required herein and generally accepted accounting
Agreement for Advertising, Services, Page 4
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 Alliance
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 Alliance'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 Alliance with another private entity, person, or
organization for the performance of those services described in Section 1.1. In the event that the
Alliance enters into any arrangement, contractual or otherwise, with such other entity. person or
organization, the Alliance 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 Alliance 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 Alliance shall have exclusive control of its operations and performance of services
hereunder, and such persons, entities, or organizations performing the same and the Alliance shall
be solely responsible for the acts and omissions of its directors, officers, employees, agents, and
subcontractors. The Alliance shall not be considered a partner or joint venturer with the City, nor
shall the Alliance be considered nor in any manner hold itself out as an agent or official
representative of the City.
5.3 Insurance. The Alliance shall, at a minimum, provide insurance as follows:
Commercial General Liability
• General Aggregate: $1,000,000
• Per Occurrence: $500,000
• Coverage shall be at least as broad as ISO CG 00 01 10 93
• No coverage shall be deleted from standard policy without notification of
individual exclusions being attached for review and acceptance.
The following are general requirements applicable to all policies:
AM Best Rating of B +; V1I or better for all liability policies.
Insurance carriers licensed and admitted to do business in State of Texas will be
accepted.
Agreement for Advertising Services, Page 5
> 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 Alliance 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 Inde
THE ALLIANCE AGREES TO AND SHALL INDEMNIFY, HOLD
HARI`ILESS, 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
ALLIANCE PURSUANT TO THIS AGREEMENT, THE CONDUCT
OR MANAGEMENT OF THE ALLIANCE'S BUSINESS OR
ACTIVITIES, OR FROM ANY OTHER ACT OR OMISSION BY
THE ALLIANCE, 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
A-NY OTHER PERSON OR ENTITY AND /OR BY THE JOINT OR
SOLE NEGLIGENCE OF THE ALLIANCE. IT IS THE
EXPRESSED INTENTION OF THE, PARTIES HERETO, BOTH
THE ALLIANCE AND THE CITY, THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE
ALLIANCE TO INDEMNIFY AND PROTECT THE CITY, ITS
OFFICERS, AGENTS AND EMPLOYEES FROM THE
Agreement for Advertising_Senices, Page 6
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 ALLIANCE'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
�I 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
ALLIANCE 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 Alliance assumes full responsibility for its work performed hereunder and hereby
releases, relinquishes, discharges, and holds harmless the City, its officers, agents, and employees
from all claims, demands, and causes of action of every kind and character, including the cost of
defense thereof, for any injury to or death of any person (whether they be either of the parties
hereto, their employees, or other third parties) and any loss of or damage to property (whether the
property be that of either of the parties hereto, their employees, or other third parties) that is caused
by or alleged to be caused by. arising out of, or in connection with the Alliance's work to be
performed hereunder. This release shall apply with respect to the Alliance's work regardless of
whether said claims, demands, and causes of action are covered in whole or in part by insurance.
5.6 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the
City and the Alliance hereby agree that no claim or dispute between the City and the Alliance
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 Alliance consents to be joined in the arbitration proceeding if the
Alliance's presence is required or requested by the City of complete relief to be recorded in the
arbitration proceeding.
Agreement for Advertising Services, Page 7
5.7 Force Majeure. In the event the Summerfest is cancelled due to a force majeure, the
refund obligations of the Alliance 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 Alliance 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 ALLIANCE
City of Baytown
Bay Area Ministerial Alliance, Inc.
Attn: City Manager
Arm: President
P.O. Box 424
600 Nest Sterling
Baytown, TX 77522
Baytown, TX 77520
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 Alliance and their respective successors and assigns.
5.11 Application of Laws. All terms, conditions, and provisions of this Agreement are subject
to all applicable federal laws.. state laws, the Charter of the City of Baytown, all ordinances passed
pursuant thereto, and all judicial determinations relative thereto. The place of making and the place
of performance for all purposes shall be Baytown, Harris County, Texas.
5.12 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it
shall not be construed for or against any party hereto on the basis that such party did or did not
author the same.
5.13 Complete Agreement. This Agreement contains the entire understanding and constitutes
the entire agreement between the parties hereto concerning the subject matter contained herein.
There are no representations, agreements.. arrangements, or understandings, oral or written, express
or implied, between or among the parties hereto, relating to the subject matter of this Agreement,
which are not fully expressed herein. The terms and conditions of this Agreement shall prevail
notwithstanding any variance in this Agreement from the terms and conditions of any other
document relating to this transaction or these transactions.
5.14 Duplicate Originals. This Agreement is executed in duplicate originals.
Agreement for Advertising Services, Page 8
5.15 Ileadings. 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.
5.17 Authority, The officers executing this Agreement on behalf of each Party hereby
confirm that such officers have full authority to execute this Agreement and to bind the Party
he /she represents.
EXECUTED ON this the _ day of .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
EXECUTED ON this the _ day of , 2008.
BAY AREA MINISTERIAL ALLIANCE,
INC.
By:
(Signature)
(Printed Name)
(Title)
Agreement for Advertising Services, Page 9
ATTEST:
9
(Signature)
(Printed Name)
(Title)
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