Ordinance No. 11,474ORDINANCI". O. 11,474
AN ORDINANCE OF THE" CITY C01JNCIL OF' THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND CFFY MANAGER , 10 EXECUTE AND lH F' 'c ITY
CLERK TO ATTE'ST T(.) AN ECONOMIC' Dt,"VELOPMENT AGREEMEN`1' F'OIZ
T(WRISN4 AND PROMOTION SERVICES WITIA ECONOMIC ALLIANCE HOUS'l -'ON
PORT REGION TO L'INFIANCE AND PROMOTE TOURISM AND THE" CONVENTION
AND HOTEL, INE)USTRY IN THE' CIT'l" OF' BAYTOWN AND ITS VICINITY;
AUTHORIZING PAYMEXI" BY THE" C I VY 01' BAY TOWN IN AN ANIOUNT NOT TO
EXCF "111) TEN THOUSAND AND NO/100 DOLLARS ($10,000,00); MAKING OTHER
PROVISIONS RELA']'*I--,D THERFFO; AND PROVIDIN(i FOR THE F"FFECTIVE DATE"
TI IER]"Ol",
w." rr ORDAINED BY .3 "F- CITY COUM _11, OF TI IF ('11"N'Oi"13AY'f'(.)WN,'I"U,"XAS:
City hereby authorizes and directs tile
Section I That the City Council ol'the City of" 13, '
City Martager to execute and the City Clerk toattem to an F'ccmomic Development Agreement with E"cononlic
Alliance Houston Port Region to enhance and promote tourism and the convcn(ionand hotel industry ill the City
of'Baytown and its vicinity. A copy of'said agreement is attached hereto, marked Exhibit "A," all(] made n pall
hercol'f or all illICIIIS alld PL[I-I)OSCS.
Section 2: That tile City Council ol'the City ol'Bayumvnauthorizes payment to Economic Alliance
1101IStO1l P011 Regi011 i111111 allIOUIlt not to, exceed T1 'N TI IC: USAND AND, N0/100 DOLLARS (S10,000.00) Im
promotional and advertising services in accordance with the Agreement authorized in Section 2 hereinabove.
Section I- That the City-NIana.ger is hereby granted gencral authority to approve a decrease or an
increase in costs by JV ENTY-F] V E,' THOUSAND AND NO/100 DOLLARS ($25,000.00) or less, provided
that tile amount authorized in Section 2 hercof'may not be increased by inore than 1\venty-fivc percent (25'�`o).
Section'l: That the City Ca MICil Of, file City of' Baytown, Texas, hereby approves the budget of
Economic Alliance Houston Port Region for operati(,uls Funded by IlOtCl OCCLJINIIICy tax revenues. A copy of'said
budget is attached hereto as l"Ahibit "B" and incorporated herein For all imentsand purposes.
Section 5: This orclimance shall take effect immediately
C"ouncil of,the Ci,ty of FlaytoNvil.
IN"FROD1 JCF,"'D, READ and PASSE'D by the aflirmative
Baytown this the 14"' day ot'October, 2010,
mulmlim
a
APPROVED ASTO 1"ORM:
. ... . .. . ...
-I 'i ACIO RAMIREZ, SIC., Cit , A orney
and afier its passage by the City
e of tile City Cotincil cal" the City of'
DONCARLOS, Mayor
Exhibit "A"
ECONOMIC DEVELOPMENT SERVICES AGREEMENT
FOR TOURISM AND PROMOTION SERVICES
THIS Economic Development Services Agreement for Tourism and Promotion Services
( "Agreement ") is made and entered into by and between the Economic Alliance Houston Port
Region, a Texas non - profit corporation, (hereinafter the "Economic Alliance "), and the City of
Baytown, a home -rule municipal corporation (the "City ") for the purposes described herein.
WHEREAS, the Economic Alliance is a non - profit corporation organized to promote
economic development with an emphasis on performance in the southeast portion of Harris
County and specifically has undertaken a tourism development project — the San Jacinto Historic
District; and
WHEREAS, the City of Baytown has enacted a hotel occupancy tax for the purposes
provided in Chapter 351 of the Texas Tax Code; and
WHEREAS, Section 351.101(a) of the Texas Tax Code authorizes the City to use revenue
from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by
advertising and conducting solicitations and promotional programs to attract tourists and convention
delegates or registrants to the municipality or its vicinity; and
WHEREAS, the City desires to participate in cooperative projects with the Economic
Alliance through the San Jacinto Texas Historic District in order to enhance and promote tourism
and the convention and hotel industry in the City and its vicinity; and
WHEREAS, the Economic Alliance is qualified and willing to perform such functions;
NOW THEREFORE, in consideration of the covenants and conditions stated herein, and
in consideration of the mutual benefits that will accrue to each to the Economic Alliance and the
City (collectively the "Parties "), as well as to the citizens of the City of Baytown, Texas, the
Parties have agreed and do hereby agree as follows:
ARTICLE I
Qualifications of the Economic Alliance
The Economic Alliance represents that:
a. the Economic Alliance is a non - profit entity that is authorized to promote tourism in
Harris County and is currently in good standings with the State and Federal
government;
b. the Economic Alliance is engaged in an on -going effort to attract tourists to East
Harris County through the development of the San Jacinto Texas Historic District and
other projects; and
Economic Development Services Agreement. Page 1
C. the Economic Alliance hereby agrees to participate in joint projects and coordinate its
activities with the City in an effort to reduce duplication of services and to enhance
cooperation regarding tourism development and specifically Project Stars.
ARTICLE II
Scope of Services
2.01 For and in consideration of the payment by the City to the Economic Alliance, the
Economic Alliance agrees to use such hotel tax funds for advertising and conducting
solicitations and promotional programs to attract tourists to the City in a manner that directly
enhances and promotes tourism and the convention and hotel industry. To that end, the
Economic Alliance will provide to the City of Baytown the following services:
a. Promote or advertise the City of Baytown and its surrounding area to attract
conventions, visitors and businesses;
b. Present Baytown in the marketing materials and programs of the Economic
Alliance, including its regional website and newly created San Jacinto Texas
Historic District;
C. Provide copies of Economic Alliance publications;
d. Invite City officials and staff to all events, workshops or forums organized and /or
hosted by the Economic Alliance;
e. Reserve one voting membership position on the Board of Directors of the
Economic Alliance for a designee of the City of Baytown;
f. Reserve one voting membership position on the Board of Directors of the
Economic Alliance for a designee of the Baytown Chamber of Commerce; and
g. Perform such other duties as may be agreed upon between the Parties from time to
time in writing.
2.02 The Economic Alliance 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 Economic Alliance shall not utilize hotel occupancy
tax funds for any expenditure which has not been specifically documented to satisfy the
purposes set forth in Sections 2.01 hereinabove.
2.03 The Economic Alliance shall prepare and submit to the City Manager of the City an annual
budget for approval by the City Council, for such operations of the Economic Alliance
funded by hotel occupancy tax revenue. This budget shall specifically identify proposed
expenditures of hotel tax funds by the Economic Alliance. Based upon the budget, the City
should be able to audit specifically the purpose of each individual expenditure of hotel
occupancy tax funds from the separate account relating to hotel tax funds. The City shall
Economic Development Services Agreement, Page 2
not pay to the Economic Alliance any hotel tax revenues unless a budget has been approved
in writing by the City Council authorizing the expenditure of funds. The Economic Alliance
acknowledges that the approval of such budget by the City Council creates a fiduciary duty
in the Economic Alliance with respect to the hotel occupancy tax funds paid by the City to
the Economic Alliance under this Agreement. The Economic Alliance 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.
2.04 The Economic Alliance shall maintain any hotel tax funds paid to the Economic Alliance by
the City in a separate account and shall not commingle such funds with any other money.
2.05 The Economic Alliance shall maintain complete and accurate financial records of each
expenditure of the hotel occupancy tax funds made by the Economic Alliance. These funds
shall be classified as restricted funds for audited financial purposes, and may not be used for
contracted services, including, but not limited to, auditing fees and attorney fees. Upon
reasonable advance written request of the City Manager or his designee, the Economic
Alliance shall make such financial records available for inspection and review and shall
provide copies of the same if so requested. The Economic Alliance understands and accepts
that all such financial records, and any other records relating to this Agreement shall be
subject to the Texas Public Information Act, as hereafter amended, and the Local
Government Records Act, as amended.
2.06 After initial receipt of the hotel occupancy tax funds, and within thirty (30) days after the
end of every contract quarter, the Economic Alliance 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 Economic Alliance shall prepare and deliver all reports to the City Clerk in a form and
manner approved by the City Manager or his designee. The Economic Alliance shall
respond promptly to any request from the City Manager or his designee for additional
information relating to the activities performed under this Agreement.
2.07 Thirty (30) days after the end of each year of this Agreement and at such other times as
may be requested by the City Manager, the Economic Alliance will furnish to the City a
performance report of its work under this Agreement which shall reflect overall activities
conducted, expenditures made pursuant to this Agreement, and other information as may
be required by the City.
Economic Development Services Agreement. Page 3
ARTICLE III
Term
3.01 Subject to Section 3.02 and Article V, this Agreement is for the period beginning
July 1, 2010, and ending June 31, 2013.
3.02 It is expressly understood and agreed by both the Economic Alliance and the City that
any term of this Agreement beyond the first calendar year Agreement is contingent upon
funds being appropriated by the City Council of the City for services to be provided
pursuant to this Agreement. Should funds not be appropriated, this Agreement shall
become null and void without further notice and both parties shall be relieved of any and
all obligations hereunder after the expiration of the period for which funds were
appropriated, with the exception of the liabilities and obligations assumed by the
Economic Alliance herein.
ARTICLE IV
Terms of Payment and Service Reporting
4.01 Subject to Section 4.04 of this Agreement, the City agrees to pay the Economic Alliance
an amount not to exceed THIRTY THOUSAND AND NO /100 DOLLARS ($30,000.00)
over a three -year contract period, billed in annual installments of TEN THOUSAND
AND NO /100 DOLLARS ($10,000.00). Such payment shall be made 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 Economic Alliance
in performing the services required hereunder.
4.02 The Economic Alliance shall submit three annual billing statements to the City, each for
TEN THOUSAND AND NO /100 DOLLARS ($10,000.00), within thirty (30) days of
July 1, 2010, July 1, 2011, and July 1, 2012.
4.03 The City shall process such statements and make payment within thirty (30) days after
receiving a proper invoice therefor.
4.04 The parties understand and agree that any funds not used for advertising and conducting
promotional programs to attract tourists to the Baytown area in accordance with this
Agreement in any given year shall be refunded to the City within fifteen (15) days after
the conclusion of each such year.
ARTICLE V
Termination
5.01 Either party may terminate this Agreement upon ten (10) days' written notice for any or
no reason.
Economic Development Services Agreement, Page 4
5.02 Either party may terminate this Agreement upon thirty (30) days' written notice upon
default by the other party. Default by a party occurs if the party fails to perform or
observe any of the terms and conditions of this Agreement required to be performed or
observed by that party. Should a default occur, the party against whom the default has
occurred has the right to terminate all or part of its duties under this Agreement as of the
thirtieth (30'') day following the receipt by the defaulting party of a notice describing the
default and intended termination, provided: (i) the termination is ineffective if within the
thirty- (30) day period the defaulting party cures the default or (ii) the termination may be
stayed, at the sole option of the party against whom the default has occurred, pending
cure of the default.
5.03 Should this Agreement be terminated pursuant to Section 5.01 or 5.02, within ten days
from the termination notification, the Economic Alliance shall provide a listing of
expenditures that have occurred since the annual period for which funds were last
appropriated together with a final accounting of all expenditures and tax funds on the day
of termination.
Any use of remaining funds by the Economic Alliance after notification of termination
and prior to termination is conditioned upon such contractual obligations having been
incurred and entered into in the good faith performance of those services contemplated in
Section 1.1, and further conditioned upon such contractual obligations having a term not
exceeding the portion of the term of this Agreement for which funds have been
appropriated.
ARTICLE VI
Miscellaneous
6.01 The relationship of the Economic Alliance to the City shall be that of an independent
contractor. The City shall have no authority to direct the day -to -day activities of any of
the Economic Alliance's employees or representatives, shall have no authority over the
Economic Alliance's decisions, and shall have no rights to ownership of internal working
papers or other information or data of the Economic Alliance, except as otherwise
specifically authorized or required herein.
6.02 This Agreement shall be binding upon and inure to the benefit of the City and the
Economic Alliance and shall not bestow any rights on any third parties.
6.03 Failure of either party hereto to insist on the strict performance of any of the provisions
hereof or failure of performance, shall not be considered a waiver of the right to insist on
or enforce by an appropriate remedy strict compliance with any other obligation
hereunder, or to exercise any right or remedy occurring as a result of any future failure of
performance.
6.04 This Agreement shall be subject to and construed in accordance with the laws of the State
of Texas and of the United States of America and is performable in Harris County, Texas.
Economic Development Services Agreement. Page 5
6.05 All notices required or allowed hereunder shall be given in writing and shall be deemed
delivered when actually received or on the third day following its deposit into a United
States Postal Service post office or receptacle with prepaid postage affixed thereto, and
sent by certified mail, return receipt requested, addressed to the respective party at the
address set forth below, or at such other address the receiving party may have theretofore
prescribed by written notice to the sending party:
If to BAYTOWN: CITY OF BAYTOWN
Attention: City Manager
2401 Market Street
Baytown, TX 77520
If to the ECONOMIC ALLIANCE: ECONOMIC ALLIANCE
HOUSTON PORT REGION
Attention: Jan Lawler, President/CEO
908 W. Main Street
LaPorte, TX 77571
Fax: 281- 867 -1106
6.06 If any of the terms, provisions, covenants, conditions or any other part of this Agreement
is held for any reason to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants, conditions or any other part of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
6.07 This Agreement contains the entire agreement of the parties, superseding all oral or
written previous and contemporaneous agreements between the Parties relating to the
matters herein. Any changes or amendments hereto must be in writing and signed by
both parties.
6.08 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 Economic Alliance assumes full responsibility for its
work performed hereunder and hereby releases, relinquishes, discharges, and holds
harmless the City, its officers, agents, and employees from all claims, demands, and
causes of action of every kind and character, including the cost of defense thereof, for
any injury to or death of any person (whether they be either of the parties hereto, their
employees, or other third parties) and any loss of or damage to property (whether the
property be that of either of the parties hereto, their employees, or other third parties) that
is caused by or alleged to be caused by, arising out of, or in connection with the
Economic Alliance's work to be performed hereunder. This release shall apply with
respect to the Economic Alliance's work regardless of whether said claims, demands, and
causes of action are covered in whole or in part by insurance.
Economic Development Services Agreement. Page 6
6.09 The Economic Alliance shall not assign this Agreement without first obtaining the written
consent of the City.
6.10 The headings of this Agreement are for the convenience of reference only and shall not
affect in any manner any of the terms and conditions hereof.
6.11 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.
6.12 The officers executing this Agreement on behalf of the Parties hereby represent that such
officers have full authority to execute this Agreement and to bind the party he /she
represents.
IN WITNESS WHEREOF, the parties hereto have executed this Contract in multiple
copies, each of which shall be deemed to be an original, but all of which shall constitute but one
and the same agreement on the day of , 2010, the date of execution by
the Interim City Manager of the City of Baytown.
ATTEST /SEAL:
By:
Name:
Title:
Date Signed:
ATTEST /SEAL:
By:
Name:
Title:
Date Signed:
ECONOMIC ALLIANCE
HOUSTON PORT REGION
By:
Name:
Title:
Date Signed:
CITY OF BAYTOWN
By:
Name:
Title:
Date Signed:
R :1Karen\FileslContmcts\Economic Alliance Agmement120101economic alliance agreement clean.doc
Economic Development Services Agreement, Page 7
Exhibit "B"
Page 1 of 1
Economic Alliance Houston Port Region 2009 - 2010 Budget Proposed for City of Baytown Contract
Submitted to: Citv Manaoer of Bavtown. Texas
Rata Submitted: 9•Sao-lo
Contract Year Covered: 2010.2011
CAM r
CQUM 2 Cam+ 2
Cok"" t
c" n fi
COAPM T Co:wn Ir
Item 0
Expenditure Eligible Service
Language of the Contract Section
Total
Amount Actual Service
outlined in
Portion of
Specific to Cost for 2010/2011
Contract
Expanse
City of ($10.000 installment
for Raglan
Baytown to be received from
City of Baytown in
Sept 2010)
1
Project Management for the San Jacinto Texas 2 -01 a to 0 2 0 1 b
Promote or advertise the City of
(Val
$10.000 S/0.000
Historic DisWct; including continued
Baytown and its surrounding area to
development of Epic Art with industry partners,
attract conventions, visitors and
Baytown Gateway Projects, and Corridor
businesses
GraMOMt
2
No monetary cast expended to be charged to 2 01 d.
Invite City officials and staff to all
We at this
so
City
events, wcfkahops at forums
time
organized and/or hosted by the
Economic Alliance
3
No monetary cost expended to be charged to 2.01 e.
Reserve one voting membership
We at this
so
City
position on the Board of Directors of
time
Use Economic Alliance for a designee
of use City of Baytown
4
No monetary cost expended to be charged to 2.011.
Reserve one voting membership
Na at this
So
City
positron on the Board of Directors of
time
the Economic Alliance for a designee
of the Baytown Chamber of
Commerce
B
Freight Transportation & Improvement Study 2.01 g.
Perform such other dudes as may be
$100.000
$0
for the Houston Part Region area. Contract
agreed upon between the Parties
and administrative costs are $100,000.
from time to time in writing
Transportation study work will provide
research to relieve congestion from main
corridors leading to key tourism destination
assets. To be completed in 2010 and lobbied
Total oxpondituros budgeted and
$10,000
proposed for tourism programs
nutllnnd In Cnnlrnrr.
Page 1 of 1