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Ordinance No. 11,070ORDINANCE NO. 11,070 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN. TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN AGREEMENT FOR ADVERTISING SERVICES FOR THE 7T" ANNUAL BAYOU BOWL WITH THE BAYOU BOWL ASSOCIATION; AUTHORIZING PAYMENT IN AN AMOUNT NOT TO EXCEED FIFTY -FIVE THOUSAND AND NO /100 DOLLARS ($55.000.00): MAKING OTHER PROVISIONS RELATED THERETO: AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown. Texas, hereby authorizes and directs the City Manager to execute and the City Clerk to attest to an Agreement for Advertising Services for the 7`h Annual Bayou Bowl with the Bayou Bowl Association. A copy of said Agreement is attached hereto. marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown hereby approves the budget, attached hereto as Exhibit "B" and incorporated herein for all intents and purposes, and authorizes payment of hotel occupancy tax revenues to the Bayou Bowl Association in an amount not to exceed FIFTY -FIVE THOUSAND AND NO /100 DOLLARS ($55.000.00) pursuant to the agreement authorized in Section 1 hereof. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY -FIVE THOUSAND ANDNO /100 DOLLARS ($25,000.00) or less. provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent (25 %). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED. READ and PASSED by the affirmative vote of the City C�il of the City of Baytown this the 260' day of February, 2009. APPROVED AS TO FORM: 41NACIO RAMIREZ, S City Attorney ARLOS , \ \cobsry l \Legal\Karen\Files \City Council\ Ordinances\ 1-009 \Februar}• 26Wuthorize2009BayouBow I Contract. doc Exhibit "A" Agreement for Advertising Services for the 7th 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 7`h Annual Bayou Bowl, which will be held on June 13, 2009, 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 27, 2009, as follows: USE OF HOTEL OCCUPANCY TAX REVENUE 1.1 Use of Funds. For and in consideration of the payment by the City to the Association of the agreed payments of hotel tax funds specified in Article III, the Association agrees to use such hotel tax funds for advertising and conducting solicitations and promotional programs to attract tourists to the City in a manner that directly enhances and promotes tourism and the convention and hotel industry by providing: Ayrecmcnt for AdvenisingServices, Pagc I (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; (0 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. 13 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(0, 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. H. 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 Aerecment for Advertising Services, Page 2 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 financial records available for inspection and review and shall provide copies of the same if so requested. The Association understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, as hereafter amended, and the Local Government Records Act, as amended. 2.4 Quarterly Reports. After initial receipt of the hotel occupancy tax funds, and within thirty (30) days after the end of every contract quarter, 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, 2009, the Association will furnish to the City a performance report of its work under this Agreement which shall reflect overall activitics 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 Aereement for Advertising Services Pap 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 1100 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 (30'h) 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 27, 2009, and terminate October 30, 2009, 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 Aarecment for Advertising Services. Pagc 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 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 I.I. 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 Refund upon Termination. 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 Aarcemenl for Advertising Services. Page 5 organization, the Association shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to Chapter 351 of the Texas Tax Code, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. The Association shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of the City. The Association shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the Association shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The Association shall not be considered a partner or joint venturer with the City, nor shall the Association be considered nor in any manner hold itself out as an agent or official representative of the City. 5.3 Insurance. The Association 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. 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' Aweement for Advertising Services. Page 6 5.4 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. Inclemnity. 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 Advernsine Services, Page 7 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 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 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, Hams 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 parries hereby declare they would have enacted such remaining portions despite any such invalidity. EXECUTED ON this the _ day of Agreement for Advertising Servicess. Page 9 .2009. CITY Or BAYTOWN By: GARRISON C. BRUMBACK, City Manager ATTEST: KAYTHIE DARNELL, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney BAYOU BOWL ASSOCIA By tgnature) (Printed Nam . /&'a /� W / �X c %irk (Titlef ATTEST: (Signature) Michael R. Wilson (Printed Name) Treasurer (Title) \ \cobsrvl\ Legal \Karen\Files \Contmcts\J3oyou Bowl Letter Agreement\ 2009\ Atrcement4AdvertisingServices .doc Agreement for Advertising Services. Page 10 Exhibit "B" Tin Annual Bayou Bowl Estimated Expense Budget for Hotel Occupancy Tax Hotel Occupancy Tax Advertisement -- Fox Sports Network Receipts Disbursements $55,000.00 $55.000.00 Total Estimate $55,000.00 $55,000.00 • • Agreement for Advertising Services for the 7th 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 7th Annual Bayou Bowl, which will be held on June 13, 2009, 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 27, 2009,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 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 • • 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 financial records available for inspection and review and shall provide copies of the same if so requested. The Association understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act,as hereafter amended,and the Local Government Records Act,as amended. 2.4 Quarterly Reports. After initial receipt of the hotel occupancy tax funds, and within thirty (30) days after the end of every contract quarter, 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, 2009,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 27, 2009, and terminate October 30, 2009, 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 11111 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 Refund upon Termination. 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 Agreement for Advertising Services,Page 5 • • organization, the Association shall cause such other entity, person, or organization to adhere to, conform to,and be subject to all provisions, terms, and conditions of this Agreement and to Chapter 351 of the Texas Tax Code, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. The Association shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer,agent, servant,or employee of the City. The Association shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the Association shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The Association shall not be considered a partner or joint venturer with the City, nor shall the Association be considered nor in any manner hold itself out as an agent or official representative of the City. 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 1 • • 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 • • • 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 • • 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. Yr t EXECUTED ON this the day of , 2009. CI Y OF YT WN By: GARRISO C. BR ACK,City Manager Agreement for Advertising Services,Page 9 • • , A - ST: 00,;(TO*Iv 'L4v cq �� z IprAir KAY %IE DARN L,City Cle . r'= *** ,+P APPROVED AS TO FORM: "--... ,,,. ' 0401~-€D, -1../ ACIO RAMIREZ, SR.,Cieili) orney BAYOU BOWL ASSOCIA By• tgnature) -rixge 5 l)A�Eze1e (Printed Nam SID&, / eX -ce-c � 0ir� -(Title' ATTEST: 7)(14441A__) Lr-------- (Signature) Michael R. Wilson (Printed Name) Treasurer (Title) \\cobsrvl\Legal\Karen\Files\Contracts\Bayou Bowl Letter Agreement\2009\Agreement4AdvertisingServices.doc Agreement for Advertising Services,Page 10 J • • • ISIARA NB HIGH SCHOOL SEOIORS ALL ZEAfl colt September 24, 2009 TO: Mayor Steve DonCarlos,Members of City Council and City Staff FROM: Tracey S. Wheeler,Bayou Bowl Executive Director SUBJECT: Bayou Bowl 2009 Annual Report The 7th Annual Bayou Bowl held June 13,2009 was a huge success hosting more than 8,000 Baytonians and visitors to Stallworth Stadium for an outstanding night of all-star high school football. In addition to the game itself,Bayou Bowl included a Celebrity Golf Tournament held at Goose Creek County Club with some 140 players and 30 celebrities. Bayou Bowl also hosted the third Fan-Fest on Friday night which allowed young people and their parents to come out and meet the players. Posters were developed with both teams and coaches. The young people received posters which they could get autographed by all players,a free ticket to the game,and a Bayou Bowl souvenir football. San Jacinto Mall did a great job hosting this event and everyone seemed to have a wonderful time. The player's banquet held at the Memorial High School on Saturday included the presentation of player rings autogra footballs to layers an coaches, and Profit Plus Weser Bottles. This year's banquet had an unprecedented num er in attendance with more than 270 in attendance. This event was catered by Roosters and featured keynote address by Baytonian and NFL Player Charles Godfrey.—We also held—this year a Bowl Tailgate Blowout(consisting of a cookoff and a dance)hosted by the Baytown/Highlands Go Texan Committee. The—Tail-gate giOwout was small but cooks seemed to have a great ti7 This event was held at Bridgewater Events. Bayou Bowl week included many activities for the players including: • Check in on Tuesday for players at two Baytown hotels (La Quinta West and La Quinta East)with local cheerleaders to welcome and lunch served by Wings &More. "Goody" bags filled with snack items were prepared by the Baytown Chamber of Commerce. • Photo shoot/media day was also on Tuesday • Breakfasts daily were provided by McDonalds and the Baytown Shrine Club provided lunch on Wednesday • Schlitterbahn—Galveston was the treat for Thursday with the players visiting the Shrine Hospital for Children in Houston on Friday • The pre-game dinner on Saturday was held at the San Jacinto Mall and catered by Executive Catering. P.O.Box 330 Baytown,TX 77522 (281)420-2961 • • Page 2—Bayou Bowl 2009 Annual Report to City Council • The West Chambers County Chamber hosted lunch and an afternoon at the Eagle Point Wave Pool. As you can see,it was a full week of activities. The game brings many visitors to our area (/ including parents and family members. From all appearances,there were more Louisianan • visitors this year than ever before. I / Bayou Bowl books 100 rooms for five nights for this game for players and coaches. In addition, t/ we have discovered from our research that most of the hotel rooms were filled during that weekend. We have calculated that with the many areas of expenditure for this event Bayou Bowl has an economic impact of more than$500,000 for Baytown. Room tax alone generated more than$3,000 in city sales tax which will return to the City. In addition,there was sales tax generated from visitors during that week to include meals,shopping, gasoline,etc. This is an estimated amount of approximately$6,000. This is a total sales tax income of at least$9,000. Bayou Bowl purchases meals,t-shirts,awards,printing services and much more from local businesses. All of this has a impact on our local economy. In addition to this,the City of Baytown receives unlimited publicity on our community. The advertising done before the event and the advertising that we receive when the game is televised is immeasurable. The game has now been televised by Fox Sports Network a total of five times to no less than 750,000 households each time. Baytown receives exposure to many cities in Louisiana and to many surrounding communities with the newspaper and radio advertising of the game. This year,we also advertised Bayou Bowl through cable advertising in surrounding area markets on CNN,ESPN2,ESPN,FSN and Fox News. We further added a radio remote with KILT during the week of the game. This year's event also was advertised in the Triple A "Southern Traveler"magazine.Bayou Bowl is by-far the one of the two best exposures that Baytown receives from events(the other being Houston Raceway Natl.Race). Much of the advertising on Fox Sports Network is"Baytown—A Fun Place to Be"which was run a total of eight times during the game. The Bayou Bowl Board is extremely appreciative of the financial participation and the support that we receive from the City of Baytown. We hope that we can depend on your support in the future. Thank you again for your support of the Bayou Bowl.