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Ordinance No. 11,566ORDINANCE NO. 11,566 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTIIORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND TI IE CITY CLERK TO ATTEST TO AN AGREEMENT FOR ADVERTISING SERVICES AND PROMOTION OF THE ARTS WITH THE BAYTOWN SYMPHONY ORCHESTRA: AUTHORIZING PAYMENT IN AN AMOUNT NOT TO EXCEED EIGHTEEN TI IOUSAN1) ONE HUNDRED TEN AND NO/100 DOLLARS (SI 8,110.00); 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: Thai the City Council of the City of Ba\ town, Texas, hereby authorizes and directs the City Manager to execute and the City Clerk to attest to an Agreement for Advertising Services and Promotion of the Arts with the Baytown Symphony Orchestra. A copy of said Agreement is attached hereto, marked Exhibit "A." and made a part hereof for all intents and purposes. Section 2: Thai 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 Baytown Symphony Orchestra in an amount not to exceed EIGHTEEN THOUSAND ONE HUNDRED TEN AND NO/100 DOLLARS ($18,110.00); pursuant lo 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 TI IOUSAND AND NO/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 vole this the 10* day of February, 2011. L^TlCIA.BRYSCIiCityCi City Council of the City of Baytown, DONCARLOS , Mav^f APPROVED AS TO R)RM: RAMIREZ, SR., City Atto R:\Karcn\Files\CityCouncil\Ordlnanecs\2011\Fcbruary IO\Authorize201 IBayiownSymphonyQrchestraContracLdoc Exhibit "A" Agreement for Promotion of the Arts and Advertising Services STATE OF TEXAS § § COUNTY OF HARRIS § THIS AGREEMENT is made between the City of Baytown, Texas, a municipal corporation (the "City"), and Baytown Symphony Orchestra, a non-profit corporation incorporated under the laws of the State of Texas (the "Orchestra"). 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 3S1.101(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 promoting the aits, including instrumental and vocal music, and/or 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 Orchestra will perform one or more concerts at Lee College District Campus, including the Student Soloist Concert on May 7,2011, which are expected to directly enhance and promote tourism and the convention and hotel industry during the City's 2010-11 Fiscal Year (the "Performance"); and WHEREAS, the Orchestra proposes to use various means of advertising to promote the City of Baytown together with the Performance; and WHEREAS, the City and the Orchestra desire to enter into an agreement for promotion of the arts and advertising services 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 Orchestra 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 Orchestra of the agreed payments of hotel tax funds specified in Article ID, the Orchestra agrees to use such hotel tax funds for both promoting the arts and 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. Funds which are unused shall be refunded to the City within fifteen (IS) days after the conclusion of the Performance. Aaimiitnt tat Promotion of the Arts and Advertising Service. Pace 1 12 Specific Restrictions on Use of Funds. The Orchestra agrees to demonstrate strict compliance with the record keeping and apportionment limitations imposed by Sections 351.10l(g), 351.103 and 351.104 of the Texas Tax Code, as applicable. The Orchestra 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 \2 herein. n. RECORD KEEPING AND REPORTING REQUIREMENTS 2.1 Budget (a) The Orchestra shall prepare and submit to the City Manager of the City an annual budget for approval, for such operations of the Orchestra funded by hotel occupancy tax revenue. This budget shall specifically identify proposed expenditures of hotel tax funds by the Orchestra. 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 Orchestra any hotel tax revenues as set forth in Article III of this Agreement unless a budget has been approved in writing by the City authorizing the expenditure of funds. (b) The Orchestra acknowledges that the approval of such budget by the City Council creates a fiduciary duty in the Orchestra with respect to the hotel occupancy tax funds paid by the City to the Orchestra under this Agreement The Orchestra 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. 12 Separate Account The Orchestra shall maintain any hotel tax funds paid to the Orchestra by the City in a separate account and shall not commingle such funds with any other money. 22 Financial Records. The Orchestra shall maintain complete and accurate financial records of each expenditure of the hotel occupancy tax funds made by the Orchestra. 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 Orchestra shall make such financial records available for inspection and review and shall provide copies of the same if so requested. The Orchestra 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 Orchestra shall furnish to the City a quarterly report, including: (1) a completed financial report, Agreement for Promotion of the Arts and Advertising ServiTf Pagp 7 (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 Orchestra shall prepare and deliver all reports to the City Clerk in a form and manner approved by the City Manager or his designee. The Orchestra 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 30,2011, the Orchestra 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 Orchestra shall give the City Manager reasonable advance written notice of the time and place of all meetings of the Orchestra's Board of Directors, as well as any other meeting of any constituency of the Orchestra 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 Orchestra's activities set forth in this Agreement, the City agrees to pay the Orchestra an amount not to exceed EIGHTEEN THOUSAND ONE HUNDRED TEN AND NO/100 DOLLARS ($18,110.00) 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 Orchestra 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 promoting the arts and/or advertising and conducting promotional programs to attract tourists to the Baytown area and to the Performance shall be refunded to the City within fifteen (IS) days after the conclusion of the Performance. 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, 2011, or after the Orchestra 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, which arc actually incurred for events and activities taking place within the term of this Agreement, are eligible for funding. Any ineligible Agreement for Promotion of the Aits and Advertising Services. Pace 3 expenditures or unspent funds shall be forfeited to the City upon expiration or termination of the Agreement 42 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 Orchestra shall be entitled to payment for its services satisfactorily performed in accordance with this Agreement up to the date of termination subject to Section 4.2(c). (c) If this Agreement is terminated pursuant to Section 42(a), the Orchestra 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 for approval. If the City fails to act on the budget within 30 days of receipt of the same and if 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; and (3) a final accounting of all expenditures and tax funds on the day of termination. Any use of remaining funds by the Orchestra 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 Orchestra; (b) The insolvency of the Orchestra, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by the Orchestra 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 Orchestra for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or P)rDfl)OuOfi of the Arts w^il ArtvfrtfwUfl s^ww^t Page 4 (d) The failure of the Orchestra 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 In the event that this Agreement is terminated pursuant to Section 42 or 43, the Orchestra 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 Orchestra's obligation to comply with the reporting requirements articulated in Article II or as may otherwise be required by Chapter 3S1 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 Orchestra with another private entity, person, or organization for the performance of those services described in Section 1.1. In the event that the Orchestra enters into any arrangement, contractual or otherwise, with such outer entity, person or organization, the Orchestra 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. 52 Independent Contractor. The Orchestra 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 Orchestra shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the Orchestra shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The Orchestra shall not be considered a partner or joint venturer with the City, nor shall the Orchestra be considered nor in any manner hold itself out as an agent or official representative of the City. 53 Insurance. The Orchestra 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. Amement for Promotion of the Arts and AdvotisSna Services. Page5 > Insurance carriers licensed and admitted to do business in the 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' prior written notice by certified mail, return receipt requested, has been given to the Cfty. > The City of Baytown, its officers, agents and employees are to be added as Additional Insureds to all liability policies. Additionally, the Orchestra 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 ORCHESTRA 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 ORCHESTRA PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE ORCHESTRA'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR OMISSION BY THE ORCHESTRA, ITS AGENTS, AND EMPLOYEES, WHEN PERFORMING SERVICES IN ACCORDANCE WITH THIS AGREEMENT, WHERE SUCH INJURIES, DEATHS 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 ORCHESTRA. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE ORCHESTRA AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH Aereentent for Promotion of the Arts and Advotistntr Service*. Page 6 IS INDEMNITY BY THE ORCHESTRA 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 ORCHESTRA'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 ORCHESTRA 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 S3 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 Orchestra 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 Orchestra's work to be performed hereunder. This release shall apply with respect to the Orchestra'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 Orchestra hereby agree that no claim or dispute between the City and the Orchestra 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 Orchestra consents to be joined in the aibitration proceeding if bPage 7 the Orchestra's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 5.7 Force Majeore. In the event the Performance is cancelled due to a force majeure, the refund obligations of the Orchestra under this Agreement pursuant to Sections 1.1, 3.2, and 4.4 will not be expanded but will remain unchanged. Any funds provided by the City pursuant to Section 3.1 and either not expended or not expended in full compliance with this Agreement shall be refunded to the City pursuant to the terms of this Agreement The term "force majeure" as used herein, shall include acts of God, acts of the public enemy, and acts not within the control of the parties hereto, which by the exercise of due diligence and care could not have been avoided. 5.8 Assignment The Orchestra 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 Orchestra City of Baytown Baytown Symphony Orchestra Attn: City Manager Attn: President P.O. Box 424 P.O. Box 2217 Baytown, TX 77522 Baytown, TX 77522 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 Orchestra 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. Agreement for Promotion of tfte Arts and Advertising Services. Page 8 5.14 Duplicate Originals. This Agreement is executed in duplicate originals. 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 nci sue represents* EXECUTED ON this the day of , 20_. CITY OF BAYTOWN By:_ ROBERT D. LEIPER, Interim City Manager ATTEST: LETICIA BRYSCH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney APPROVED AS TO FUNDING AVAILABILITY: MIKE A. LESTER, Interim Director of Finance Agreement for Promoliun af the Aits and Advertkins .Page 9 EXECUTED ON this the .,20!/. BAYTOWN SYMPHONY ORCHESTRA By: i (I (Printed Name) ' (Title) ATTEST: <Signature) (Printed Name) (Title) AttJtmuuit for Promotion of the Arts and Advertising Services. Page 10 Exhibit "B" P.O. Box 2217 Baytown, TX 77522 (ORCHESTRA (J In Rnldonea at Imm Cellos* Concert Proposal for May 7.2011 Concert • Program • National Anthem Liberty Fanfare by John Williams * Student Soloist -Repertory to be announced Espafta Rhapsody by Emmanuel Chabrier Suite No. 1 from the Opera "Carmen" by Georges Bizet * Student Soloist -Repertory to be announced Overture to the Opera "Sicilian Vespers" by Giuseppi Verdi *Swtfent Soloists and repertory to be tnnounced liter competition la Febrvvy, 2011 TOTAL 18,110.00 16.499.78 The Baytown Symphony Orchestra is a 50l(c)3 tax exempt coiporation ETN 74-1670940 Q1 I 41111 Agreement for Promotion of the Arts and Advertising Services STATE OF TEXAS § COUNTY OF HARRIS § THIS AGREEMENT is made between the City of Baytown,Texas, a municipal corporation (the "City"), and Baytown Symphony Orchestra, a non-profit corporation incorporated under the laws of the State of Texas(the"Orchestra"). 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 promoting the arts, including instrumental and vocal music, and/or 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 Orchestra will perform one or more concerts at Lee College District Campus, including the Student Soloist Concert on May 7, 2011, which are expected to directly enhance and promote tourism and the convention and hotel industry during the City's 2010-11 Fiscal Year(the"Performance"); and WHEREAS, the Orchestra proposes to use various means of advertising to promote the City of Baytown together with the Performance; and WHEREAS, the City and the Orchestra desire to enter into an agreement for promotion of the arts and advertising services 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 Orchestra 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 Orchestra of the agreed payments of hotel tax funds specified in Article III,the Orchestra agrees to use such hotel tax funds for both promoting the arts and 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. Funds which are unused shall be refunded to the City within fifteen (15) days after the conclusion of the Performance. Agreement for Promotion of the Arts and Advertising Services,Page 1 • • 1.2 Specific Restrictions on Use of Funds. The Orchestra 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 Orchestra 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 Orchestra shall prepare and submit to the City Manager of the City an annual budget for approval, for such operations of the Orchestra funded by hotel occupancy tax revenue. This budget shall specifically identify proposed expenditures of hotel tax funds by the Orchestra. 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 Orchestra any hotel tax revenues as set forth in Article III of this Agreement unless a budget has been approved in writing by the City authorizing the expenditure of funds. (b) The Orchestra acknowledges that the approval of such budget by the City Council creates a fiduciary duty in the Orchestra with respect to the hotel occupancy tax funds paid by the City to the Orchestra under this Agreement. The Orchestra 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 Orchestra shall maintain any hotel tax funds paid to the Orchestra by the City in a separate account and shall not commingle such funds with any other money. 2.3 Financial Records. The Orchestra shall maintain complete and accurate financial records of each expenditure of the hotel occupancy tax funds made by the Orchestra. 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 Orchestra shall make such financial records available for inspection and review and shall provide copies of the same if so requested. The Orchestra 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 Orchestra shall furnish to the City a quarterly report, including: (1) a completed financial report, Agreement for Promotion of the Arts and 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 Orchestra shall prepare and deliver all reports to the City Clerk in a form and manner approved by the City Manager or his designee. The Orchestra 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 30,2011,the Orchestra 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 Orchestra shall give the City Manager reasonable advance written notice of the time and place of all meetings of the Orchestra's Board of Directors,as well as any other meeting of any constituency of the Orchestra 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 Orchestra's activities set forth in this Agreement,the City agrees to pay the Orchestra an amount not to exceed EIGHTEEN THOUSAND ONE HUNDRED TEN AND NO/100 DOLLARS ($18,110.00) 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 Orchestra 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 promoting the arts and/or advertising and conducting promotional programs to attract tourists to the Baytown area and to the Performance shall be refunded to the City within fifteen(15)days after the conclusion of the Performance. 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, 2011, or after the Orchestra 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, which are actually incurred for events and activities taking place within the term of this Agreement, are eligible for funding. Any ineligible Agreement for Promotion of the Arts and Advertising Services,Page 3 • expenditures or unspent funds shall be forfeited to the City upon expiration or 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 Orchestra 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 Orchestra 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 for approval. If the City fails to act on the budget within 30 days of receipt of the same and if 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; and (3) a final accounting of all expenditures and tax funds on the day of termination. Any use of remaining funds by the Orchestra 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 Orchestra; (b) The insolvency of the Orchestra, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by the Orchestra 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 Orchestra for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party;or Agreement for Promotion of the Arts and Advertising Services,Page 4 • • (d) The failure of the Orchestra 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 In the event that this Agreement is terminated pursuant to Section 4.2 or 4.3, the Orchestra 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 Orchestra'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 Orchestra with another private entity, person, or organization for the performance of those services described in Section 1.1. In the event that the Orchestra enters into any arrangement, contractual or otherwise, with such other entity, person or organization, the Orchestra 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 Orchestra 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 Orchestra shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the Orchestra shall be solely responsible for the acts and omissions of its directors,officers, employees, agents, and subcontractors. The Orchestra shall not be considered a partner or joint venturer with the City, nor shall the Orchestra be considered nor in any manner hold itself out as an agent or official representative of the City. 5.3 Insurance. The Orchestra 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. Agreement for Promotion of the Arts and Advertising Services,Page 5 • • ➢ Insurance carriers licensed and admitted to do business in the 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' 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 Orchestra 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 ORCHESTRA 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 ORCHESTRA PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE ORCHESTRA'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR OMISSION BY THE ORCHESTRA, ITS AGENTS, AND EMPLOYEES, WHEN PERFORMING SERVICES IN ACCORDANCE WITH THIS AGREEMENT, WHERE SUCH INJURIES, DEATHS 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 ORCHESTRA. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE ORCHESTRA AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH Agreement for Promotion of the Arts and Advertising Services,Page 6 • • IS INDEMNITY BY THE ORCHESTRA 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 ORCHESTRA'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 ORCHESTRA 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 Orchestra 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 Orchestra's work to be performed hereunder. This release shall apply with respect to the Orchestra'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 Orchestra hereby agree that no claim or dispute between the City and the Orchestra 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 Orchestra consents to be joined in the arbitration proceeding if Agreement for Promotion of the Arts and Advertising Services,Page 7 • • the Orchestra'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 Performance is cancelled due to a force majeure, the refund obligations of the Orchestra under this Agreement pursuant to Sections 1.1, 3.2, and 4.4 will not be expanded but will remain unchanged. Any funds provided by the City pursuant to Section 3.1 and either not expended or not expended in full compliance with this Agreement shall be refunded to the City pursuant to the terms of this Agreement. The term"force majeure"as used herein, shall include acts of God, acts of the public enemy, and acts not within the control of the parties hereto, which by the exercise of due diligence and care could not have been avoided. 5.8 Assignment. The Orchestra 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 Orchestra City of Baytown Baytown Symphony Orchestra Attn: City Manager Attn: President P.O.Box 424 P.O.Box 2217 Baytown, TX 77522 Baytown,TX 77522 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 Orchestra 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. Agreement for Promotion of the Arts and Advertising Services,Page 8 . • 5.14 Duplicate Originals. This Agreement is executed in duplicate originals. 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 /0 day of V , 201(. CITY OF B YTOWN i4 8 1� � � By: ROB RT D. LEIPER, Interim City Manager A E 'c' r L TICIA SC Clerk APPROVED AS TO FORM: ACIO RAMIREZ, SR., C Attorney APPROVED AS TO FUNDING AVAILABILITY: MIKE A.LESTER, Interim Director of Finance Agreement for Promotion of the Arts and Advertising Services,Page 9 • • EXECUTED ON this the\/-flay of , 201. BAYTOWN SYMPHONY ORCHESTRA By: L.Q1JJ ignature) (Printed Name) idkC5 /Cie v7+ (Title) ATTEST: Z/t1.14e) Signature) (Printed Name) 7/ieAsu,ee/2 (Title) • R:\Karen\Files\Contracts\Baytown Symphany Orchestra Contract\Agreement4HOT2010-1 l.doc Agreement for Promotion of the Arts and Advertising Services,Page 10