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Exhibit "A"
Agreement for Promotional and Tourist Services
STATE OF TEXAS S
COUNTY OF HARRIS S
THIS AGREEMENT made between the City of Baytown. Texas, a municipal corporation
(the "City"), and the Baytown Chamber of Commerce. a non - profit corporation incorporated under
the laws of the State of Texas (the "Chamber').
WHEREAS, the City of Baytown has enacted a hotel occupancy tax for the purposes
provided in Chapter 351 of the Texas Tax Code; and
WHEREAS. Section 351.101(a) of the Texas Tax Code authorizes the City to use revenue
from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by
advertising and conducting solicitations and promotional programs to attract tourists and convention
delegates or registrants to the municipality or its vicinity; and
WHEREAS, the City of Baytown and Baytown Chamber of Commerce have a mutual
interest in enhancing Baytown's identity in the economic marketplace of Harris and Chambers
Counties. the State and the Nation; and encouraging the economic growth of Baytown by
attracting tourists, visitors, and conventions: and
WHEREAS, Baytown Chamber of Commerce traditionally has concerned itself with
these goals and is qualified to plan and execute programs designed to help accomplish these
purposes; and
WHEREAS, the City and the Baytown Chamber of Commerce desire to enter into a
Promotional and Tourist Services Agreement. subject to the terms and conditions herein in order
to enhance and promote tourism and the convention and hotel industry;
NOWW. THEREFORE, in consideration of the performance of the mutual covenants and
promises contained herein. the City and the Chamber agree and contract as follows:
I.
USE OF HOTEL OCCUPANCY TAX REVENUE
1.1 Use of Funds. For and in consideration of the payment by the City to the Chamber of the
agreed payments of hotel tax funds specified in Article III, the Chamber agrees to use such hotel
tax funds and all interest earned thereon only for advertising and conducting solicitations and
promotional programs to attract tourists and convention delegates or registrants to the City by:
a. planning and executing a marketing program designed to enhance the image of
Baytown as an attractive city for tourists. visitors and conventions;
Agreement for Promotional and Tourist Services, Page I
b. developing programs to promote Baytown as a desirable city with food and
lodging accommodations for the traveling public, and to attract conventions, sales
meetings. conferences and tourists to the City; and
creating through advertisement in various tourist and appropriate general media
publications and representation of the City at travel shows and other such events.
a positive image and increased awareness of the amenities, attractions and
recreational activities of interest to tourists and visitors.
Funds for any contract year -which are unused by midnight March 31 s` of that year shall be refunded
to the City within thirty (30) days.
1.2 Administrative Costs. The hotel occupancy tax funds received from the City by the Chamber
and any interest thereon may be spent for day -to -day operations. office supplies, salaries, travel
expenses and other administrative costs allowed by Section 351.1 01(0 of the Texas Tax Code, only
if each is directly attributable to work on programs. which promote tourism and the hotel and
convention industry and is incurred directly in the promotion and servicing expenditures
authorized hereinabove.
1.3 Specific Restrictions on Use of Funds.
(a) The Chamber agrees to demonstrate strict compliance with the record keeping and
apportionment limitations imposed by Sections 351.101(f), 351.103 and 351.104 of the
Texas Tax Code, as applicable. The Chamber shall not utilize hotel occupancy tax funds or
any interest thereon 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 and any interest earned thereon may not be spent for travel for a person to
attend an event or conduct an activity the primary purpose of which is not directly related to
the promotion of local tourism and the convention and hotel industry or the performance of
the person's job in an efficient and professional manner.
11.
RECORDKEEPING AND REPORTING REQUIRENIENTS
2.1 Budget.
(a) The Chamber shall prepare and submit to the City Manager of the City on or before June 1't
of each year an annual budget for approval by the City Council. for such operations of the
Chamber funded by hotel occupancy tax revenue. This budget shall specifically identify
proposed expenditures of hotel tax funds by the Chamber. Based upon the budget. the City
should be able to audit specifically the purpose of each individual expenditure of hotel
occupancy tax funds from the separate account relating to hotel tax funds. The City shall
not pay to the Chamber any hotel tax revenues as set forth in Article III of this Agreement
during any program year of this Agreement unless a budget for such respective program
year has been approved in -writing by the City Council authorizing the expenditure of funds.
Agreement for Promotional and Tourist Services, Page 2
Failure to timely submit an annual budget may be considered a breach of contract. and is
considered grounds for termination of this Agreement.
(b) The Chamber acknowledges that the approval of such budget by the City Council creates a
fiduciary duty in the Chamber with respect to the hotel occupancy tax funds paid by the City
to the Chamber under this Agreement, including any interest earned thereon. The Chamber
shall expend hotel tax occupancy funds only in the manner and for the purposes specified in
this Agreement and in the budget as approved in writing by the City Council.
(c) During the term of this Agreement. new promotions beyond the scope of the events
budgeted may be proposed by the City or the Chamber. Any such proposed promotion
shall be considered based on the merits of the special event. Should either party propose a
new promotion the Chamber shall submit a detailed description of the special event to the
City at least one hundred twenty (120) days prior to the special event. The parties may
decide whether to proceed with the event and if so may negotiate the scope and costs
associated with promoting the event. The City Council approval of any new promotion in
the budget must be obtained prior to allocations of funds to the Chamber.
2.2 Separate Account. The Chamber shall maintain any hotel tax funds paid to the Chamber
by the City in a separate account and shall not commingle such funds or any interest earned thereon
with any other money.
2.3 Financial Records. The Chamber shall maintain complete and accurate financial records
of each expenditure of the hotel occupancy tax funds made by the Chamber. These funds shall be
classified as restricted funds for audited financial purposes. and may not be used for contracted
services, including. but not limited to, auditing fees and attorney fees. Upon reasonable advance
written request of the City Manager or his designee, the Chamber shall make such financial records
available for inspection and review and shall provide copies of the same if so requested. The
Chamber understands and accepts that all such financial records, and any other records relating to
this Agreement shall be subject to the Texas Public Information Act, as hereafter amended, and the
Local Government Records Act, as amended.
2.4 Quarterly Reports. After initial receipt of the hotel occupancy tax funds, and within
thirty (30) days after the end of every contract quarter, the Chamber shall furnish to the City a
quarterly report, including:
(1) a completed financial report.
(2) a list of the expenditures made or copies of the invoice or receipts with regard to
hotel occupancy tax funds pursuant to TEX. TAX CODE §351.101(c), and
(3) a copy of all financial records (e.g., copies of front and back cleared checks or bank
statements, and other relevant documentation).
The Chamber shall prepare and deliver all reports to the City Clerl< in a form and manner approved
by the City Manager or his designee. The Chamber shall respond promptly to any request from the
Aereement for Promotional and Tourist Services, Page 3
City Manager or his designee for additional information relating to the activities performed under
this Agreement.
2.5 Annual Report. Thirty (30) days after September 30, the end of every fiscal year of the
City in which this Agreement is in effect, the Chamber will furnish to the City a performance
report of its work under this Agreement which shall reflect overall activity, meetings.
conventions and conferences conducted and expenditures during the contract period of the funds
received pursuant to this Agreement.
2.6 Notice of Meetings. The Chamber shall give the City Manager reasonable advance
written notice of the time and place of all meetings of the Chamber's Board of Directors, as well as
any other meeting of any constituency of the Chamber at which this Agreement or any matter
subject to this Agreement shall be considered.
III.
HOTEL OCCUPANCY TAX REVENUE PAYMENTS
3.1 Payment for Initial Term. Subject to Sections 3.3 and 4.1 of this Agreement, as a
consideration for the Chamber's activities set forth in this Agreement, the City agrees to pay the
Chamber a total amount not to exceed THIRTY THOUSAND AND NO /100 DOLLARS
($30,000.00) from hotel occupancy tax revenues for the initial term of this Agreement which
ends on September 30, 2008. The parties understand and agree that the City's obligation
hereunder shall not be greater than the actual expense incurred by the Chamber in performing the
services required hereunder. This payment shall be made within thirty (30) days of the execution
of this Agreement by the City Manager for the period of April 1, through September 30, 2008.
3.2 Payments. Subject to Sections 3.3 and 4.1 of this Agreement, as a consideration for the
Chamber's activities set forth in this Agreement, the City agrees to pay the Chamber a total
amount not to exceed SIXTY THOUSAND AND NO /100 DOLLARS ($60.000.00) for each
subsequent term of this Agreement. or such other amount as specifically appropriated for this
Agreement by the City Council from hotel occupancy tax revenues in its budget documents. The
parties understand and agree that the City's obligation hereunder shall not be greater than the
actual expense incurred by the Chamber in performing the services required hereunder. This
payment shall be made in two equal installments on or within thirty (30) days of the following:
• on April I of each term for the period of April 1. through September 30, and
• on October 1 of each term for the period of October 1 through March 31.
3.3 Condition of Payment. Each payment is subject to receipt of unused funds, including
interest thereon, from the prior contract period and the receipt of the required quarterly reports.
Agreement for Promotional and Tourist Services, Page 4
IV.
TER11 AND TERMINATION
4.1 Term.
a. Initial Term. The term of this Agreement shall commence on April 1. 2008, and
terminate at midnight on September 30, 2008, or after the Chamber 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 during the contract term for events and activities taking
place within such contract term, are eligible for funding under this Agreement. All
ineligible expenditures and unspent funds shall be forfeited to the City upon expiration
or termination of the Agreement.
b. Successive Terms. If the Chamber has complied with Section 2.1.a and the City
Council has approved the budget in writing and authorized the expenditure of funds
in the City's annual budget. this Agreement shall be renewed for a successive one -
year period.
c. Contingency. It is expressly understood and agreed by both the Chamber and the City
that any term of this Agreement beyond the initial term defined in subsection (a) of
this section is contingent upon funds being appropriated by the City Council of the
City of Baytown for services to be provided pursuant to this Agreement. Should
funds not be appropriated. this Agreement shall become null and void and both
parties shall be relieved of any and all obligations hereunder, with the exception of
the liabilities and obligations assumed by the Chamber pursuant to Sections 4.2(c),
4.4. 5.4 and 5.5 hereof.
4.2 Termination Without Cause.
(a) This Agreement may be terminated by either party. with or without cause. by giving the
other party thirty (30) days' advance written notice.
(b) In the event this Agreement is terminated by either party pursuant to Section 4.2(a), the
Chamber shall be entitled to payment for its services satisfactorily performed in
accordance with this Agreement up to the date of termination subject to Section 4.2(c).
(c) If this Agreement is terminated pursuant to Section 4.2(a), the Chamber will provide the
City:
(1) within ten (10) business days from the termination notification, a short -term
budget of probable expenditures for the remaining thirty -day period between
termination notification and contract termination. This budget will be presented
to the City Council for approval at the next regularly scheduled meeting for which
proper notice can be given after receipt thereof by the City. If the City Council
fails to act on the budget at such meeting and the budget does not contain any
Agreement for Promotional and Tourist Services, Page
expenditures that would be prohibited by the Texas Tax Code and is within the
current contractual period; the budget will be considered approved;
(2) within five (5) business days of a request from the City. a listing of expenditures
that have occurred since the last required reporting period;
(3) a final accounting of all expenditures and tax funds on the day of termination.
Any use of remaining funds by the Chamber after notification of termination and prior to
termination is conditioned upon such contractual obligations having been incurred and
entered into in the good faith performance of those services contemplated in Section 1.1.
and further conditioned upon such contractual obligations having a term not exceeding
the current term of this Agreement.
4.3 Automatic Termination. This Agreement shall automatically terminate without notice
upon the occurrence of any of the following events:
(a) The termination of the legal existence of the Chamber:
(b) The insolvency of the Chamber, the filing of a petition in bankruptcy, either
voluntarily or involuntarily. or an assignment by the Chamber for the benefit of
creditors:
(c) The continuation of a breach of any of the terms or conditions of this Agreement by
either the City or the Chamber for more than thirty (30) days after written notice of
such breach is given to the breaching party by the other party; or
(d) The failure of the Chamber to submit a financial quarterly report which complies
with the reporting procedures required herein and generally accepted accounting
principles prior to the beginning of the next contract term, or quarterly as required by
Section 2.4.
(e) The failure of the Chamber to submit a budget timely pursuant to Section 2.1(a).
4.4 Refund Due. In the event that this Agreement is terminated pursuant to Section 4.1, 4.2 or
4.3. The Chamber agrees to refund any and all unused funds, or funds determined by the City to
have been used improperly. within 30 days after termination of this Agreement. Late payments
shall accrue interest at the rate provided in Section 2251.025 of the Texas Government Code.
Agreement for Promotional and Tourist Services, Page 6
V.
GENERAL PROVISIONS
5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor
be construed to prohibit, the agreement by the Chamber with another private entity. person, or
organization for the performance of those services described in Section I.I. In the event that the
Chamber enters into any arrangement. contractual or otherwise, with such other entity, person or
organization. the Chamber shall cause such other entity. person, or organization to adhere to,
conform to. and be subject to all provisions, terms. and conditions of this Agreement and to Chapter
351 of the Texas Tax Code. including reporting requirements, separate funds maintenance. and
limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds.
5.2 Independent Contractor. The Chamber shall operate as an independent contractor as to all
services to be performed under this Agreement and not as an officer, agent. servant, or employee of
the City. The Chamber shall have exclusive control of its operations and performance of services
hereunder, and such persons. entities. or organizations performing the same and the Chamber shall
be solely responsible for the acts and omissions of its directors. officers, employees, agents, and
subcontractors. The Chamber shall not be considered a partner or joint venturer with the City, nor
shall the Chamber be considered nor in any manner hold itself out as an agent or official
representative of the City.
5.3 Insurance. The Chamber shall, at a minimum. provide insurance as follows:
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: 5500,000
• Coverage for "Any Auto"
Workers' Compensation
• Statutory Limits
• Employer's Liability $500,000
• Waiver of Subrogation required.
4. Liquor /Dram Shop Liability for any event where alcohol will be sold by the
Chamber
■ $500.000
The following are general requirements applicable to all policies:
r AM Best Rating of B +: VII or better for all liability policies.
r Insurance carriers licensed and admitted to do business in State of Texas will be
accepted.
Agreement for Promotional and Tourist Services, Page 7
Upon request of and without cost to City of Baytown, certified copies of all insurance
policies and /or certificates of insurance shall be furnished to City of Baytown's
representative.
Certificates of insurance showing evidence of insurance coverage shall be provided to
City of Baytown's representative prior to any work being performed at the site.
Liability policies must be on occurrence form.
Each insurance policy shall be endorsed to state that coverage shall not be suspended.
voided, canceled or reduced in coverage or in limits except after thirty (30) days'
prior written notice by certified mail. return receipt requested, has been given to the
City.
The City of Baytown, its officers, agents and employees are to be added as Additional
Insureds to all liability policies.
A waiver of subrogation is required in favor of the City for Worker's Compensation
Insurance.
5.4 Indemnitv.
THE CHAMBER AGREES TO AND SHALL INDEMNIFY, HOLD
HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS
AND EMPLOYEES (HEREINAFTER COLLECTIVELY
REFERRED TO AS THE "CITY "), FROM AND AGAINST ANY
AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION,
SUITS AND LIABILITY OF EVERY KIND, INCLUDING, BUT NOT
LIMITED TO, ALL EXPENSES OF LITIGATION, COURT COSTS,
AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY
PERSON, OR FOR ANY AND ALL DAMAGES ARISING OUT OF
OR IN CONNECTION WITH THE SERVICES PROVIDED BY THE
CHAMBER PURSUANT TO THIS AGREEMENT, THE CONDUCT
OR MANAGEMENT OF THE CHAMBER'S BUSINESS OR
ACTIVITIES, OR FROM ANY OTHER ACT OR OMISSION BY
THE CHAMBER, ITS AGENTS, AND 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 CHAMBER. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH
THE CHAMBER AND THE CITY, THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE
CHAMBER TO INDEMNIFY AND PROTECT THE CITY, ITS
OFFICERS, AGENTS AND EMPLOYEES FROM THE
CONSEQUENCES OF (I) THE CITY'S OWN NEGLIGENCE,
WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF
Agreement for Promotional and Tourist Services, Page 8
THE RESULTING INJURY, DEATH OR DAMAGE WITH ANY
OTHER PERSON OR ENTITY AND /OR (1I) THE CHAMBER'S
JOINT AND /OR SOLE NEGLIGENCE. FURTHERMORE, THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL
HAVE NO APPLICATION TO THE CITY FOR ANY CLAIM,
LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY
WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM
THE SOLE NEGLIGENCE OF THE CITY, UNMIXED WITH THE
FAULT OF ANY OTHER PERSON OR ENTITY. IN THE EVENT
THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST
THE CITY BY REASON OF ANY OF THE ABOVE, THE
CHAMBER FURTHER AGREES AND COVENANTS TO DEFEND
THE ACTION OR PROCEEDING BY LEGAL COUNSEL
ACCEPTABLE TO THE CITY.
The indemnity provided hereinabove shall survive the termination and /or expiration of
this Agreement.
5.5 Release. By this Agreement. the City does not consent to litigation or suit. and the City
hereby expressly revokes any consent to litigation that it may have granted by the tenns of this
Agreement or any other contract or agreement, any charter. or applicable state law. Nothing
contained herein shall be construed in any way so as to waive in whole or part the City's sovereign
immunity. The Chamber assumes full responsibility for its work performed hereunder and hereby
releases. relinquishes. discharges, and holds harmless the City, its officers, agents, and employees
from all claims, demands. and causes of action of every kind and character, including the cost of
defense thereof, for any injury to or death of any person (whether they be either of the parties
hereto. their employees. or other third parties) and any loss of or damage to property (whether the
property be that of either of the parties hereto, their employees, or other third parties) that is caused
by or alleged to be caused by, arising out of. or in connection with the Chamber's work to be
performed hereunder. This release shall apply with respect to the Chamber's work regardless of
whether said claims. demands. and causes of action are covered in whole or in part by insurance.
5.6 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the
City and the Chamber hereby agree that no claim or dispute between the City and the Chamber
arising out of or relating to this Agreement shall be decided by any arbitration proceeding including.
without limitation. any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1 -14). or
any applicable State arbitration statute, including. but not limited to. the Texas General Arbitration
Act, provided that in the event that the City is subjected to an arbitration proceeding
notwithstanding this provision. the Chamber consents to be joined in the arbitration proceeding if
the Chamber's presence is required or requested by the City of complete relief to be recorded in the
arbitration proceeding.
5.7 Assignment. The Chamber shall not assign this Agreement without first obtaining the
written consent of the City.
AgEeement for Promotional and Tourist Services, Page 9
5.8 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or
regulation. shall be effective when given in writing and deposited in the United States mail, certified
mail, return receipt requested. or by hand - delivery. addressed to the respective parties as follows:
CITY CHAMBER
City of Baytown Baytown Chamber of Commerce
Attn: City Manager Attn: President and CEO
P.O. Box 424 1300 Rollingbrook Dr.. Suite 400
Baytown. TX 77522 Baytown, TX 77521
5.9 Binding Effect. This Agreement and each provision hereof, and each and every right, duty,
obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation
of the City and the Chamber and their respective successors and assigns.
5.10 Application of 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 Severabiliq% 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.
5.16 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.
Agreement for Promotional and Tourist Services, Page 10
. .- . i•atm . G011tet31rbts
bb—"Z—vu 1":"I Yg : G
EXECUTED ON this the _ day of _ .2008.
ATTEST:
KAYTHIE DARNELL, City Clerk
APPROVED AS TO FORM:
IGNACIO R.AAff EZ, SR., City Attorney
CITY OF BAYTOWN
By:
GARRISON C. BRUMBACK, City Manager
EXECUTED ON this the _ day of , 2008.
BAYTOWN CHAMBER OF_C RCE
RACE LER, President
ATTEST:
(Signature)
k: Kkl L. (ghee Ier
(Printed Name)
Exeo —U+I ✓e Viet pyts('d490f-
(Title)
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