Ordinance No. 11,257ORDINANCE NO.11,257
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
WITH THE BAYTOWN LITTLE THEATER INCORPORATED,FOR
ADVERTISING SERVICES ASSOCIATED WITH ITS PRODUCTION OF "MY
FAIR LADY."WHICH WILL BE HELD IN LEE COLLEGE FINE ARTS
CENTER IN JULY OF 2010;AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS:
Seciion I:Thai ihe City Council of ilie City of Baytown,Texas,hereby authorizes the
City Manager to execute and the City Clerk to attest to an Agreement for Advertising Services with
TheBaytown Little Theater Incorporated,for advertising services for its production of "My Fair
Lady."which will be held in Lee College FineArts Center in July of 2010.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 hereby approves the budgci.
attached hereto as Exhibit "B"and incorporated herein for all intents and purposes,and
authorizes payment of hotel occupancy tax revenues to The Baytown Little Theater Incorporated
in an amount not to exceed FIFTEEN THOUSAND AND NO/100 DOLLARS (S15.000.00).
pursuant to the agreement authorized in Seciion 1 hereof.
Section 3:This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baylown.
INTRODUCED,READ and PASSED,by the affirmative voi .
Of Baytown this the 24lh day of November.2009.
STEPHEN H.DONCARLOS,Mayor
APPROVHDASTO FORM;
&4*£u/A-<*~i~
NACIO RAMIREZ.SR.,CM Attorney
R:MCaren\Filos\City Council\GrdinaBees\2009\NQYeniber Z4^Bayto wnLitlIeTboalDrAdvenisingA8rccntenlOrdmBHce.doc
Exhibit "A"
Agreement for Advertising Services
STATE OF TEXAS §
§
COUNTY OF HARRIS §
THIS AGREEMENT is made between the City of Baytown,Texas,a municipal corporation
(the "City"),and The Baytown Little Theater Incorporated,a non-profit corporation incorporated
under the laws of the State of Texas (the "BUT").
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 BLT will produce the musical "My Fair Lady"at Lee College Fine Arts
Center in July of 2010,which features musical talent expected to directly enhance and promote
tourism and the convention and hotel industry (the "Production");and
WHEREAS,the BLT proposes to use various means of advertising to promote the City
of Baytown together with the Production;and
WHEREAS,the City and the BLT 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 performance of the mutual covenants and
promises contained herein,the City and the BLT 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 BLT of the agreed
payments of hotel tax funds specified in Article III,the BLT 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 Production.
Funds which are unused shall be refunded to the City within fifteen (IS)days after the conclusion
of the Production.
Agreement for Advertising Services.Page 1
1.2 Specific Restrictions on Use of Funds.The BLT agrees to demonstrate strict compliance
with the record keeping and apportionment limitations imposed by Sections 3 51.101 (g),351.103
and 351.104 of the Texas Tax Code,as applicable.The BLT shall not utilize hotel occupancy tax
funds for any expenditure which hasnot been specifically documented to satisfy the purposes set
forth in Sections 1.1 and 1.2 herein.
II.
RECORD KEEPING AND REPORTING REQUIREMENTS
2.1 Budget.
(a)The BLT 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 BLT funded by hotel occupancy tax
revenue.This budget shall specifically identify proposed expenditures of hotel tax funds by
the BLT.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
tohotel tax funds.The City shall not pay to die BLT 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 BLT acknowledges that the approval of such budget by the City Council creates a
fiduciary duty in the BLT with respect to the hotel occupancy tax funds paid by the City to
the BLT under this Agreement.The BLT shall expend hotel tax occupancy funds only in
the manner and for the purposes specified inthis Agreement and in the budget as approved
in writing by the City Council.
2.2 Separate Account.The BLT shall maintain any hotel tax funds paid to the BLT by the
City in a separate account and shall not commingle such funds with any other money.
23 Financial Records.The BLT shall maintain complete and accurate financial records of
each expenditure of the hotel occupancy tax funds made by the BLT.These funds shall be
classified as restricted funds for audited financial purposes,and may not beused 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 BLT shall make such financial records
available for inspection and review and shall provide copies of the same if so requested.The BLT
understands and accepts that all such financial records,and any otherrecords relatingto 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 arereceived,the BLT shall
furnish 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 BLT shall prepare and deliver all reports to the City Clerk in a form and manner approved by
the City Manager or his designee.The BLT 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 30,2010,the BLT 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 BLT shall give the City Manager reasonable advance written
notice of the time and place of all meetings of the BLT's Board of Directors,as well as any other
meetingof any constituency of the BLT 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 BLT's
activities set forth in this Agreement,the City agrees to pay the BLT 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 BLT in performing the services required
hereunder.
3.2 Due Date.The City shall pay the fee specified in Section 3.1 on orbefore 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 to the Production shall be refunded to the City within fifteen (15)days after the
conclusion of the Production.
rv.
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 31,2010,or after the BLT 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
BLT 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 BLT will provide the City:
(1)within ten (10)business days from the termination notification,a short-term
budget of probable expenditures for the remaining thirty-day period between
termination notification and contract termination.This budget will be presented
to the City Council for approval at the next regularly scheduled meeting for which
proper notice can be given after receipt thereof by the City.If the City Council
fails to act on the budget at such meeting and the budget does not contain any
expenditures that would be prohibited by the Texas Tax Code and is within the
term of the Agreement;the budget will be considered approved;
(2)within five (5)business days of a request from the City,a listing of expenditures
that have occurred since the last required reporting period;
(3)a final accounting of all expenditures and tax funds on the day of termination.
Any use of remaining funds by the BLT 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.
43 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 BLT;
(b)The insolvency of the BLT,the filing of a petition in bankruptcy,either voluntarily
or involuntarily,or an assignment by the BLT 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 BLT 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 BLT to submit a financial quarterly report which complieswith
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.
Agreement for Advertisine Services.Page 4
4.4 In the event that this Agreement is terminated pursuant to Section 4.2 or 4.3,the BLT agrees
to refund anyand 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 BLT'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 BLT with another private entity,person,or
organization for the performance of those services described in Section 1.1.Inthe event that the
BLT enters into any arrangement,contractual or otherwise,with such other entity,person or
organization,the BLT 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 BLT 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 BLT shall have exclusive control of its operations and performance of services
hereunder,and such persons,entities,or organizations performing the same and the BLT shall be
solely responsible for the acts and omissions of its directors,officers,employees,agents,and
subcontractors.The BLT shall not be considered a partner or joint venturer with the City,nor shall
the BLT be considered nor in any manner hold itself out as an agent or official representative of the
City.
5.3 Insurance.The BLT 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 0110 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 BestRating of B+;VIIor 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 occurrenceform.
>Each insurancepolicy shall be endorsed to state that coverage shall not be suspended,
voided,canceledor 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 BLT shall furnish separate certificates and endorsements for each at-risk
vendor,including those supplying amusement activities.All coverage of such vendors shall be
subject to all of the requirements stated herein.
5.4 Indemnity.
THE BLT 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 FORANY AND ALL DAMAGES ARISING OUT OF
OR IN CONNECTION WITH THE SERVICES PROVIDED BY THE
BLT PURSUANT TO THIS AGREEMENT,THE CONDUCT OR
MANAGEMENT OFTHE BLT'S BUSINESS OR ACTIVITIES,OR
FROM ANY OTHER ACT OR OMISSION BY THE BLT,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 BLT.IT IS THE EXPRESSED INTENTION OF THE PARTIES
HERETO,BOTH THE BLT AND THE CITY,THAT THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS
INDEMNITY BY THE BLT TO INDEMNIFY AND PROTECT THE
CITY,ITS OFFICERS,AGENTS AND EMPLOYEES FROM THE
CONSEQUENCES OF (I)THE CITY'S OWN NEGLIGENCE,
Agreement for Advertising Services.Page 6
WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF
THE RESULTING INJURY,DEATH OR DAMAGE WITH ANY
OTHER PERSON OR ENTITY AND/OR (H)THE BLT'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 THEEVENT
THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST
THE CITY BY REASON OF ANY OF THE ABOVE,THE BLT
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 BLT assumes full responsibility for its work performed hereunder and hereby
releases,relinquishes,discharges,and holds harmless the City,its officers,agents,andemployees
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 BLTs work to be performed
hereunder.This release shall apply with respect to the BLT'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 inthis Agreement,the
City and the BLT hereby agree that no claim or dispute between the City and the BLT 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,butnot 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 BLT consents to be joined in the arbitration proceeding if the BLT's presence is
required or requested by the City of complete relief to be recorded in the arbitration proceeding.
5.7 Force Majeurc.In the event the Production is cancelled due to a force majeure,the
refund obligations of the BLT under this Agreement pursuant to Sections 1.1,3.2,and 4.4 will
Agreement for Advertising Services.Page 7
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 notwithin the control of the parties hereto,which by the exercise of due
diligence and care could not have avoided.
5.8 Assignment.The BLT 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 BLT
City of Baytown The Baytown Little Theater Incorporated
Attn:City Manager Attn:President
P.O.Box 424 P.O.Box 2022
Baytown,TX 77522 Baytown,TX 77522-2022
5.10 Binding Effect.This Agreement and each provision hereof,and each and every right,duty,
obligation,and liability setforth herein shall be binding upon and inure to the benefit and obligation
of the City and the BLT 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 partydid 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 Headings.The headings and subheadings of the various sections and paragraphs of this
Agreement are inserted merely for the purpose of convenience and do not express or imply any
limitation,definition,or extension of the specific terms of the section and paragraph so designated.
5.16 Severability.If any section,subsection,paragraph,sentence,clause,phrase or word in this
Agreement,or application thereof to any person or circumstance is held invalid by any court of
competent jurisdiction,such holding shall not affect the validity of the remaining portions of this
Agreement,and the parties hereby declare they would have enacted such remaining portions despite
any such invalidity.
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 ,2009.
CITY OF BAYTOWN
By:
GARRISON C.BRUMBACK,City Manager
ATTEST:
LETICIA GARZA,City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ,SR.,City Attorney
EXECUTED ON this the day of ,2009.
THE BAYTOWN LITTLE THEATER
INCORPORATED.
By:
(SfexyfafS)
(Printed Name)
(Title)
Agreement for Advertising Services.Pape 9
ATTEST:
(Signature)
(Printed Name)
(Title)
R:\Kuen\Filet\ContncU\Biytown Little Tbnier Advertising Conmct\Agreemcnl4AdvmisingSenfKes4MyFtiiLuly.doc
Agreement for Advertising Services.Page 10
Exhibit "B"
2010 BLT's Production of "Mv Fair Ladv"
Estimated Expense Budget for Hotel Occupancy Tax
Hotel Occupancy Tax
Cable Television
Print
Radio
Billboard
Total Estimate
Receipts
SI 5,000
Disbursements
55,000
$5,000
$2,500
$2,500
$15,000 515,000
• •
Agreement for Advertising Services
STATE OF TEXAS §
COUNTY OF HARRIS §
THIS AGREEMENT is made between the City of Baytown, Texas, a municipal corporation
(the "City"), and The Baytown Little Theater Incorporated, a non-profit corporation incorporated
under the laws of the State of Texas(the"BLT").
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 BLT will produce the musical "My Fair Lady" at Lee College Fine Arts
Center in July of 2010, which features musical talent expected to directly enhance and promote
tourism and the convention and hotel industry(the "Production"); and
WHEREAS, the BLT proposes to use various means of advertising to promote the City
of Baytown together with the Production; and
WHEREAS, the City and the BLT 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 performance of the mutual covenants and
promises contained herein,the City and the BLT 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 BLT of the agreed
payments of hotel tax funds specified in Article III, the BLT 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 Production.
Funds which are unused shall be refunded to the City within fifteen (15) days after the conclusion
of the Production.
Agreement for Advertising Services,Page 1
•
1.2 Specific Restrictions on Use of Funds. The BLT agrees to demonstrate strict compliance
with the record keeping and apportionment limitations imposed by Sections 351.101(g), 351.103
and 351.104 of the Texas Tax Code, as applicable. The BLT shall not utilize hotel occupancy tax
funds for any expenditure which has not been specifically documented to satisfy the purposes set
forth in Sections 1.1 and 1.2 herein.
II.
RECORD KEEPING AND REPORTING REQUIREMENTS
2.1 Budget.
(a) The BLT 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 BLT funded by hotel occupancy tax
revenue. This budget shall specifically identify proposed expenditures of hotel tax funds by
the BLT. 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 BLT any hotel tax revenues as set forth in
Article IlI of this Agreement unless a budget has been approved in writing by the City
Council authorizing the expenditure of funds.
(b) The BLT acknowledges that the approval of such budget by the City Council creates a
fiduciary duty in the BLT with respect to the hotel occupancy tax funds paid by the City to
the BLT under this Agreement. The BLT 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 BLT shall maintain any hotel tax funds paid to the BLT by the
City in a separate account and shall not commingle such funds with any other money.
2.3 Financial Records. The BLT shall maintain complete and accurate financial records of
each expenditure of the hotel occupancy tax funds made by the BLT. 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 BLT shall make such financial records
available for inspection and review and shall provide copies of the same if so requested. The BLT
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 BLT shall
furnish to the City a quarterly report,including:
(1) a completed financial report,
Agreement for Advertising Services,Page 2
41111•
(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 BLT shall prepare and deliver all reports to the City Clerk in a form and manner approved by
the City Manager or his designee. The BLT 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, 2010, the BLT 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 BLT shall give the City Manager reasonable advance written
notice of the time and place of all meetings of the BLT's Board of Directors, as well as any other
meeting of any constituency of the BLT 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 BLT's
activities set forth in this Agreement, the City agrees to pay the BLT 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 BLT 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 to the Production shall be refunded to the City within fifteen (15) days after the
conclusion of the Production.
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, 2010, or after the BLT 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
BLT 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 BLT will provide the City:
(1) within ten (10) business days from the termination notification, a short-term
budget of probable expenditures for the remaining thirty-day period between
termination notification and contract termination. This budget will be presented
to the City Council for approval at the next regularly scheduled meeting for which
proper notice can be given after receipt thereof by the City. If the City Council
fails to act on the budget at such meeting and the budget does not contain any
expenditures that would be prohibited by the Texas Tax Code and is within the
term of the Agreement;the budget will be considered approved;
(2) within five (5) business days of a request from the City, a listing of expenditures
that have occurred since the last required reporting period;
(3) a final accounting of all expenditures and tax funds on the day of termination.
Any use of remaining funds by the BLT 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 BLT;
(b) The insolvency of the BLT, the filing of a petition in bankruptcy, either voluntarily
or involuntarily,or an assignment by the BLT 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 BLT 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 BLT 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.
Agreement for Advertising Services,Page 4
• •
4.4 In the event that this Agreement is terminated pursuant to Section 4.2 or 4.3,the BLT 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 BLT'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 BLT with another private entity, person, or
organization for the performance of those services described in Section 1.1. In the event that the
BLT enters into any arrangement, contractual or otherwise, with such other entity, person or
organization,the BLT 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 BLT 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 BLT shall have exclusive control of its operations and performance of services
hereunder, and such persons, entities, or organizations performing the same and the BLT shall be
solely responsible for the acts and omissions of its directors, officers, employees, agents, and
subcontractors. The BLT shall not be considered a partner or joint venturer with the City,nor shall
the BLT be considered nor in any manner hold itself out as an agent or official representative of the
City.
5.3 Insurance. The BLT shall,at a minimum,provide insurance as follows:
1. Commercial General Liability
• General Aggregate: $1,000,000
• Per Occurrence: $500,000
• Coverage shall be at least as broad as ISO CG 00 01 10 93
• No coverage shall be deleted from standard policy without notification of
individual exclusions being attached for review and acceptance.
The following are general requirements applicable to all policies:
➢ AM Best Rating of B+; VII or better for all liability policies.
➢ Insurance carriers licensed and admitted to do business in State of Texas will be
accepted.
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 BLT shall furnish separate certificates and endorsements for each at-risk
vendor, including those supplying amusement activities. All coverage of such vendors shall be
subject to all of the requirements stated herein.
5.4 Indemnity.
THE BLT 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
BLT PURSUANT TO THIS AGREEMENT, THE CONDUCT OR
MANAGEMENT OF THE BLT'S BUSINESS OR ACTIVITIES, OR
FROM ANY OTHER ACT OR OMISSION BY THE BLT, 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 BLT. IT IS THE EXPRESSED INTENTION OF THE PARTIES
HERETO, BOTH THE BLT AND THE CITY, THAT THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS
INDEMNITY BY THE BLT TO INDEMNIFY AND PROTECT THE
CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM THE
CONSEQUENCES OF (I) THE CITY'S OWN NEGLIGENCE,
Agreement for Advertising Services,Page 6
• •
WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF
THE RESULTING INJURY, DEATH OR DAMAGE WITH ANY
OTHER PERSON OR ENTITY AND/OR (II) THE BLT'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 BLT
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 BLT 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 BLT's work to be performed
hereunder. This release shall apply with respect to the BLT'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 BLT hereby agree that no claim or dispute between the City and the BLT 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 BLT consents to be joined in the arbitration proceeding if the BLT's presence is
required or requested by the City of complete relief to be recorded in the arbitration proceeding.
5.7 Force Majeure. In the event the Production is cancelled due to a force majeure, the
refund obligations of the BLT under this Agreement pursuant to Sections 1.1, 3.2, and 4.4 will
Agreement for Advertising Services,Page 7
• •
not be expanded but will remain unchanged. fundsprovided bythe Citypursuant to Section
PAny
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 BLT 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 BLT
City of Baytown The Baytown Little Theater Incorporated
Attn: City Manager Attn: President
P.O.Box 424 P.O.Box 2022
Baytown,TX 77522 Baytown,TX 77522-2022
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 BLT 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 Headings. The headings and subheadings of the various sections and paragraphs of this
Agreement are inserted merely for the purpose of convenience and do not express or imply any
limitation, definition, or extension of the specific terms of the section and paragraph so designated.
5.16 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this
Agreement, or application thereof to any person or circumstance is held invalid by any court of
competent jurisdiction, such holding shall not affect the validity of the remaining portions of this
Agreement, and the parties hereby declare they would have enacted such remaining portions despite
any such invalidity.
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 I thlay /of i/ / , 20.
C TY OF B OWN
4 1 1 By:
4el-
H GARRISO UMBACK, City Manager
ATISi' .
11. .' . . ._
el at
L TICI
APPROVED AS TO FORM:
NACIO RAMIREZ, SR., C Attorney
at)
/-74 /`�/J 20/o
EXECUTED ON this the (p day of 266E1'
THE BAYTOWN LITTLE THEATER
INCORPORATED.
By: /
Sign re
GMu7 G•/K rag
(Printed Name)
WO/KO ":€0 i 0€14-
(Title)
Agreement for Advertising Services,Page 9
• • .•
ATTEST:
afore)
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(Printed Name)
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(Title)
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Agreement for Advertising Services,Page 10