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Ordinance No. 11,778ORDINANCE NO. 11,778 AN ORDINANCE' OF THFI' CITY COUNCIL OF '1111' CITY OF BAYTOWN, TEXAS, APPROVING THE BUDGET 01" THE MARCUS LEE' ZARUBA CRIMINAL JUSTICE FOUNDATION FOR OPERATIONS FUNDED BY HOTI'A., OCCUPANCY TAX REVENUES; AUTHORIZING AND DIRECTING Tiff,", CITY MANAGER TO EXECUTE' ANEW 7111 CITY CLERIC TO ATTF.STTO AN ADVERTISING SERVICES AGREEMENT FOR TOURISM AND PROMOTION SERVICES WITH MARCUS LEE ZARUBA CRIMINAL JUSTICE FOUNDATION FOR THE' 2012 JAIL BRI.-"AK RUN TO ENHANCE AND PROMOTE TOURISM AND T111"', CONVENTION AND HOTE'L INDtJSTRY INTI-IE CITY OF BAY'roWN AND ITS VICINITY; At.1 rII0RIZING PAYMENT BY TI IE CITY OF BAY'l"OMIN IN AN AMOUNT N01' TO EXCEED FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00); MAKING OTHER PROVISIONS RELATED '11JERETO; AND PROVIDING FOR "1 EFFECTIVE' DATETHERE01'. * * * * * * * * N**** * * * * * * * * * * * * * * * * * * * * * * * * * * :* 4,**** * * 1, * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 4, * * * BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF I3AYTOWN,TE.'XAS: Section 1: "I'llat tile City Council of" the City of Baytown, Texas, hereby approves the budget of the Marcus ],cc Zaruba Criminal Justice Foundation for operations funded by hotel occupancy tax revenues. A copy of said budget is attached hereto as Exhibit -A"and incorporated herein for all intents and purposes. Section 2: That the City Council ofthe City of Baytown, 'texas, hereby authorizes and directs the City Manager to CXeCUtc and the City Clerk to attest to all Advertising Set-vices Agreement with the Marcus Lee Zaruba Criminal Justice Foundation for the 2012 Jail Break Run to enhance and promote tourism and tile convention and hotel industry in tile City of` Baytown and its vicinity. A copy cad' said agreement is attached hereto, marked Exhibit 93," and made a part hereof for all intents and purposes. Section 3: 'That the City Council of' the City of Baytown authorizes payment to the Marcus I...ee Zaruba Criminal Justice Foundation in an amount not to exceed FIVE', THOUSAND AND NO/] 00 DOLLARS ($5,00(,00) for promotitmal and advertising services in accordance Nvith the Agreement authorized in Section 2 hereinabove. Section 4: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY-FIVE THOUSAND AND NO/100 I..)OLLARS ($25,000.00) or less, provided that the arnountauthorized in Section 3 hereof Wray not be increased by more than twenty-five percent (25%). Section 5: This ordinance shall take el"fect immediately fi- and after its passage by the City f' Council of tile City oBaytown. 7 INTRODUCED, READ and PASSED by the affirmative o - of tile City Council of the City of C Bavtown this tile 27"' day of October „, 2011. Af APPROVED AS TO FORM: . DONCARLOS, 60 ACID RAMIREZ, SR., ity - At 01� ey Acob,siv I \I ega I \Karcn\h I es\City C0L1ncfl\0rdinancVs\201 I\Octobo 271,Jai I fbcakRun 110 101 d inan cc doc Exhibit "A" r ADVEIrFISING QUOTES Publication Name Areas served Price Austin Fit Magazine 22,000 magazines published $755 per month — ' /a page each month to Austin, TX $425 per month —1/6 page and surrounding areas of Austin Runners World 2,521,000 across the U.S. $405 per month Running Times 105,000 across U.S. $255 per month Inside Texas Running Across Texas $570 per month — % page $390 per month —1/3 Page '/z Marathon event — Dallas Dallas, TX 2500 flyers - $180.00 TX — put in runner packets '/s Marathon Event — San San Antonio, TX 2500 flyers - $180.00 Antonio, TX — put in runner packets TMPA Magazine 40,000 every 2 months $650 per month published sent to every police officer that is a member *We have contacted a few more magazines /newspapers for ad rates, we are waiting to hear back from them. We have print ready ads ready to go. Exhibit "B" 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 Markus Lee Zaruba Criminal Justice Foundation, a non -profit corporation incorporated under the laws of the State of Texas (the "Foundation'). 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 Foundation will conduct its Jail Break Run 2012, which will be a Marathon on February 11, 2012, which is expected to directly enhance and promote tourism and the convention and hotel industry (the "1/2 Marathon'); and WHEREAS, the Foundation proposes to use various means of advertising to promote the City of Baytown together with the % Marathon; and WHEREAS, the City and the Foundation 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 covenarrts and promises contained herein, the City and the Foundation agree as follows. L USE OF HOTEL OCCUPANCY TAX REVENUE 1.1 Use of Funds. For and in consideration of the payment by the City to the Foundation of the agreed payments of hotel tax funds specified in Article III, the Foundation agrees to use such hotel tax fimds 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 h Marathon. Funds which are unused shall be refunded to the City within fifteen (15) days after the conclusion of the h Marathon. 12 Specific Restrictions on Use of Funds. The Foundation 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 Foundation shall not utilize hotel occupancy tax fiords for arty 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 Foundation 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 Foundation fimded by hotel occupancy tax revenue. This budget shall specifically identify proposed expenditures of hotel tax finds by the Foundation Based upon the budget, the City should be able to audit specifically the purpose of each individual expenditure of hotel occupancy tax finds from the separate account relating to hotel tax fiords. The City shall not pay to the Foundation 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 fiords. (b) The Foundation acimowledges that the approval of such budget by the City Council creates a fiduciary duty in the Foundation with respect to the hotel occupancy tax funds paid by the City to the Foundation under this Agreement. The Foundation 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 Foundation shall maintain any hotel tax finds paid to the Foundation by the City in a separate account and shall not commingle such fiords with any other money. 2.3 Financial Records. The Foundation shall maintain complete and accurate financial records of each expenditure of the hotel occupancy tax funds made by the Foundation. These fiords shall be classified as restricted fiords 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 Foundation shall make such financial records available for inspection and review and shall provide copies of the same if so requested. The Foundation 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 Foundation 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 fiords pursuant to TE X. TAX CoDE §351.101(cl 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 Foundation shall prepare and deliver all reports to the City Clerk in a form and manner approved by the City Manager or his designee. The Foundation 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, 2012, the Foundation will fumish 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 Foundation shall give the City Manager reasonable advance written notice of the time and place of all meetings of the Foundation's Board of Directors, as well as any other meeting of any constituency of the Foundation 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 Foundation's activities set forth in this Agreement, the City agrees to pay the Foundation an amount not to exceed FIVE THOUSAND AND N01100 DOLLARS ($5,000.00) 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 Foundation in performing the services required hereunder. If the Foundation, at any time during the term of this agreement, incurs a debt, as the word is defined in section 2 -662 of the Code of Ordinances of the City of Baytown, the Foundation shall immediately notify the City's Director of Finance in writing. If the City's Director of Finance becomes aware that the Foundation has incurred a debt, the City's Director of Finance shall immediately notify the Foundation in writing. If the Foundation does not pay the debt within 30 days of either such notification, the City's Director of Finance may deduct funds in an amount equal to the debt from any payments owed to the Foundation under this Agreement, and the Foundation waives any recourse therefor. 3.2 Due Date The City shall pay the fee specified in Section 3.1 on or before the thirtieth (300) day after receiving a proper invoice therefor. However, the parties agree that any fiords not used for advertising and conducting promotional programs to attract tourists to the Baytown area and the % Marathon shall be refunded to the City within fifteen (15) days after the conclusion of the % Marathon. IV. TERM AND TERMUTION 4.1 Term. The term of this Amt shall commence on the date of execution by the City Manager and terminate October 31, 2012, or after the Foundation 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 eve rAs and activities taldng place within the term of this Agreement, are eligible for funding. Any ineligible expenditures or unspent funds shill be forfeited to the City upon termination of the Agreement. 4.2 Termination Without Cause. (a) I is 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 Foundation 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(al the Foundation 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 (S) 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 Foundation 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 Termnation. This Agreement shall automatically terminate upon the occurrence of any of the following events. (a) The termination of the legal existence of the Foundation; AgnazzlictAdmuflAn Page 4 (b) The insolvency of the Foundation, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by the Foundation for the benefit of creditors; (c) The continuation of a breach of any of the teams or conditions of this Agreement by either the City or the Foundation 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 Foundation 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. 4A In the event that this Agreement is terminated pursuant to Section 4.2 or 4.3, the Foundation agrees to refimd any and all unused ftmds, or fiords determined by the City to have been used improperly within 30 days after termination of this Agreement. Additionally such termination shall not affect the Foundation's obligation to comply with the reporting requirements articulated in Article A 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 Govemme t 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 Foundation with another private entity, person, or organization for the performance of those services described in Section 1.1. In the event that the Foundation enters into any arrangement, contractual or otherwise, with such other entity, person or organization, the Foundation 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 fiords maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. The Foundation 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 Foundation shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the Foundation shall be solely responsible for the ads and omissions of its directors, officers, employees, agents, and subcontractors. The Foundation shall not be considered a partner or joint venturer with the City, nor shall the Foundation be considered nor in any manner hold itself out as an agent or official representative of the City. Page 5 5.3 Insurance. The Foundation 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 Best Rating of B +; VIl or better for all liability policies. Insurance carriers licensed and admitted to do business in State of Texas will be accepted ➢ Upon request of and without cost to City of Baytown, certified copies of all insurance policies and/or certificates of insurance shall be famished 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 Foundation shall famish 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 5A THE FOUNDATION AGREES TO AND SHALL IINDEMNIFY, 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 LDUMD 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 FOUNDATION PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE FOUNDATION'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR : {L _2!1:71! !: i �1L�.V •; b' � lI :.. OMISSION BY THE FOUNDATION, 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 FOUNDATION. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE FOUNDATION AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE FOUNDATION TO INDE INIFY 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 (I) THE FOUNDATION'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 FOUNDATION 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 tams 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 Foundation assumes fill 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 Foundation's work to be performed hereunder. This release shall apply with respect to the Foundation's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 5.6 No Arbitmdon. Notwithstanding anything to the contrary contained in this Agreement, the City and the Foundation hereby agree that no claim or dispute between the City and the Foundation 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 Foundation consents to be joined in the arbitration proceeding if the Foundation's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 5.7 Force Majeum In the event the %z Marathon is cancelled due to a force majeure, the refund obligations of the Foundation 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 tern "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 Foundation 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: SSA FOUNDATION City of Baytown Marcus Lee Zaruba Criminal Justice Foundation Attn City Manager Attu: Mary Zaruba P.O. Box 424 P.O. Box 893 Baytown, TX 77522 Mt. Belvieu, TX 77580 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 Foundation 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 maldng and the place of performance for al! 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 Agreemenk This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained hereux 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. 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. EXECUTED ON this the _ day of .2011. CITY OF BAYTOWN By: ROBERT D. LEIPER, City Manager ATTEST: LETICIA BRYSCH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney T. tL EXECUTED ON this theL day of ��� , 2011. ST r• i� (Signature) c 4 � (Printed N e) S e af (Title) Amws 2avvb411 MARCUS LEE ZARUBA CRIMINAL JUSTICE FOUNDATION re 'de _ (Title))ogrC6c5 �,Ll�t.C'�1`o't�l-�tl74,I�1�� Z� Sf !� Grmna-Q �o<Aiu Fcvoda*�a,, 11CobsrvlXlcgaW%a=\ ilcs\ContmetsWinncus ].cc Zambn Criminal hi+6cc Foundation\Agremcnt4Adverti9ingScrviccs2011 .doo Agreement for Advertising Services. Page 10 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 Marcus Lee Zaruba Criminal Justice Foundation, a non-profit corporation incorporated under the laws of the State of Texas(the"Foundation'). 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 Foundation will conduct its Jail Break Run 2012, which will be a 'Y2 Marathon on February 11, 2012, which is expected to directly enhance and promote tourism and the convention and hotel industry (the"1/2 Marathon");and WHEREAS, the Foundation proposes to use various means of advertising to promote the City of Baytown together with the %2 Marathon;and WHEREAS, the City and the Foundation 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 Foundation agree as follows: L USE OF HOTEL OCCUPANCY TAX REVENUE 1.1 Use of Funds. For and in consideration of the payment by the City to the Foundation of the agreed payments of hotel tax funds specified in Article III,the Foundation 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 %2 Marathon. Funds which are unused shall be refunded to the City within fifteen (15) days after the conclusion of the%2 Marathon. Agma ent for Advertising Savices.Page 1 iZ Specific Restrictions on Use of Funds. The Foundation 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 Foundation shall not utilize hotel occupancy tax fiords 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 Foundation 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 Foundation funded by hotel occupancy tax revenue. This budget shall specifically identify proposed expenditures of hotel tax fiords by the Foundation. Based upon the budget,the City should be able to audit specifically the purpose of each individual expenditure of hotel occupancy tax fiords from the separate account relating to hotel tax fiords. The City shall not pay to the Foundation 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 fiords. (b) The Foundation acknowledges that the approval of such budget by the City Council creates a fiduciary duty in the Foundation with respect to the hotel occupancy tax fiords paid by the City to the Foundation under this Agreement. The Foundation shall expend hotel tax occupancy fiords 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 Foundation shall maintain any hotel tax funds paid to the Foundation by the City in a separate account and shall not commingle such funds with any other money. 2.3 Financial Records. The Foundation shall maintain complete and accurate financial records of each expenditure of the hotel occupancy tax funds made by the Foundation. These fiords shall be classified as restricted fiords 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 Foundation shall make such financial records available for inspection and review and shall provide copies of the same if so requested. The Foundation 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 Foundation shall fiunish to the City a quarterly report,including: (1) a completed financial report, 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.&, copies of front and back cleared checks or bank statements,and other relevant documentation). The Foundation shall prepare and deliver all reports to the City Clerk in a form and manner approved by the City Manager or his designee. The Foundation 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, 2012, the Foundation 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 Foundation shall give the City Manager reasonable advance written notice of the time and place of all meetings of the Foundation's Board of Directors, as well as any other meeting of any constituency of the Foundation 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 Foundation's activities set forth in this Agreement, the City agrees to pay the Foundation an amount not to exceed FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00) 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 Foundation in performing the services required hereunder. If the Foundation, at any time during the term of this agreement, incurs a debt, as the word is defined in section 2-662 of the Code of Ordinances of the City of Baytown,the Foundation shall immediately notify the City's Director of Finance in writing. If the City's Director of Finance becomes aware that the Foundation has incurred a debt, the City's Director of Finance shall immediately notify the Foundation in writing. If the Foundation does not pay the debt within 30 days of either such notification, the City's Director of Finance may deduct funds in an amount equal to the debt from any payments owed to the Foundation under this Agreement, and the Foundation waives any recourse therefor. 3.2 Due Date. The City shall pay the fee specified in Section 3.1 on or before the thirtieth (30a') day after receiving a proper invoice therefor. However, the parties agree that any funds not used for advertising and conducting promotional programs to attract tourists to the Baytown area and the '/s Marathon shall be refunded to the City within fifteen (15) days after the conclusion of the %Marathon. Page 3 Iv. TERM AND TERNnNATION 4.1 Term. The term of this Agreement shall commence on the date of execution by the City Manager and terminate October 31,2012,or after the Foundation 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 taldr►g place within the term of this Agreement, are eligible for finding. Any ineligible expenditures or unspent funds shall be forfeited to the City upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party thirty(30)days' advance written notice. (b) In the event this Agreement is terminated by either party pursuant to Section 4.2(a), the Foundation 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 Foundation 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 Foundation 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 Foundation; Page 4 (b) The insolvency of the Foundation, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by the Foundation 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 Foundation 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 Foundation 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 Foundation 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 Foundation'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 Goverment 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 Foundation with another private entity, person, or organization for the performance of those services described in Section 1.1. In the event that the Foundation enters into any arrangement, contractual or otherwise, with such other entity, person or organization, the Foundation 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 ftmds. 5.2 Independent Contractor. The Foundation 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 Foundation shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the Foundation shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The Foundation shall not be considered a partner or joint venturer with the City, nor shall the Foundation be considered nor in any manner hold itself out as an agent or official representative of the City. Page 5 5.3 Insurance. The Foundation 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 ➢ Upon request of and without cost to City of Baytown,certified copies of all insurance policies and/or certificates of insurance shall be fiunished 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 foam. ➢ 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 Foundation 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 FOUNDATION 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 FOUNDATION PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE FOUNDATION'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR &m ment for Advertising Services,Page 6 OMISSION BY THE FOUNDATION, 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 FOUNDATION. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE FOUNDATION AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE FOUNDATION TO INDEMNIFY AND PROTECT THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM THE CONSEQUENCES OF (n 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 FOUNDATION'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 FOUNDATION 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 Foundation 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 @pz+eeitnent for Advertising Services.Page 7 by or alleged to be caused by, arising out of, or in connection with the Foundation's work to be performed hereunder. This release shall apply with respect to the Foundation'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 Foundation hereby agree that no claim or dispute between the City and the Foundation 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 Foundation consents to be joined in the arbitration proceeding if the Foundation'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 '/s Marathon is cancelled due to a force majeure, the refund obligations of the Foundation 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 avoided. 5.8 Assignment. The Foundation shall not assign this Agreement without first obtaining the written consent of the City. 59 Notice. Any notice required to be given under this Agreement or any staturte, 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: C FOUNDATION City of Baytown Manus Lee Zaruba Criminal Justice Foundation Attu City Manager Attn: Mary Zaruba P.O. Box 424 P.O. Box 893 Baytown,TX 77522 Mt. Belvieu,TX 77580 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 Foundation 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,Hams County,Texas. Au ment for Advertising Services,Page 8 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. 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. EXECUTED ON this the 7 day of 2011. CITY OF BAYTOWN ��.r. ROOtRT D. LEIPER, Crty ager Clerk APPROVED AS TO FORM: I NACIO RAMIREZ, SR., Ci ttorhey A&UMent for Advertising Services,Page 9 EXECUTED ON this theL day of ,2011. MARCUS LEE ZARUBA CRIMINAL JUSTICE FOUNDATION L L�/)By: (Signaturiy Mclroit Zarubbj (Printed N e) pre-siden+ (Title),A*ci16 ;raa.(�(YfVI1;,aY ST, (Signature) JV(4a��b (Printed N e) S(f c-�e-�cc (Title) cI riaulv� ,wcAia Fc��4,� \\Cobsrvl\legal\Kam\Files\Contmets\Marcus Lee Zaruba Criminal Justice Foundation\Agrcement4AdvertisingSeivices2011.doc Agreement for Advertising Services.Page 10 Doc 07 11 02:11 a M 2814273916 p.2 AXISWM08110) CERTIFICATE OF INSURANCE WO&WIll PRODUCER T1r6 CBMWATE 19---AS A MATMOF daOrar►*IOgora YAxd adrs6t0 ro RI Mro~TIECUMF40K MCLMR TNa CCRrWCATHo MWIFAFF WAW#aY American Spathlty insurance B Risk SerAcm Inc. CR KCATW&VAA M.VC7EFO.OnALUR Tr6C0904ACRAFPCi 92111T TKII Pq,OW 142NorthMainStmet ��� 00 0���"� Rtlencke Indiana 46783 THECERMICATHNCLIER INSURED INSURERS AFFORDING COVERAGE USA Track&Field,Inc. INS.A. AXIS Insurance CcHgM 132 East WuNnpton Street,Suite 800 INS.B: Indianapolis,IN 46204 INS.C: MARCUS LEE ZARUBA CRIMINAL JUSTICE FOUNDATION PO SOX 893 MT.BELVIEU.TX 77580 CERT NUMBER:10010048M EVENT COQE:155M COVERAGES THIS 18 TDCErtTIFY THAT THS POUCIES OF WSURANCE USTED BELOW HAVE BEEN R98IED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD WICATEC.NOT WrIHSTANDINO ANY REOUIRB+ENT,TERM ORCONOITION OFANY CONTRACTOR OTHER DOCUMENT WM1H RESPECT TO VaQCH THIS CERTIFICATE MAYBE R98MD OR MAY PERTAIN.THE 11418URANCE AFFORDED BY THE POUCISSDEBCRISW HEREIN IS SUBJECT`TO ALL THE TERM EXCUJBIONSANOCONOMONSOF SUCH PCUCIES.UMITBSHOYMI MAY HAVE BID REOUCFDBYPAOCIAWS. INS POLICY POLICY POLICY LTR TYPE POLICY NUMBER EFFECTIVE EXPIRATION LIMITS GaNust Aqwegatp~EveM 3.000 GL AXGLO41WI82-11 11/OV2011 11/0112012 I'mducts-COM010t0d 004mijors Acmregaft SAW.WD q Personal and In u 1.0WADD 1M a.m. 12:01 am Each QgInnca Damace to Pimamisas Rented to You(Any Pmmhml 1 relt 1Anv One Ponmj Excluded IT- I DESCRIPTION OP OPERATIONSA.00AMONS1 MOLESoEXCLUSIONS ADDED BY ENDORSEI MWJSPECIAL PROVISIONS awardd"apalle t USA Track t1 Field sandlorwd errenta and raglstersd Pry.k dLICI+g"dandy ra4ftd a such as event set-up end Uw4awm paA4dped d+.ck.tn and The O rt coftholderre oMy an additlonar Instead wfth respad to nab ay aauaed bytho neoftence al ttw Named Insured as per FwmAxta 1003-Addtianal tr wred. Debi raRelnldenAW aNy k resped to the JAIL BREAK RUN on February 11,2012. CERTIFICATE HOLDER CANCELLATION TEXAS DEPARTMENT OF TRANSPORTATION SHOULD ANYOFTHRABOVE DEM&ED POUCIBs PO BOX 1385 BE CANCELED BEFORE THE SWRATION DATE HOUSTON,7x 77261 �HM�TM�EtJrIN NS. AUTHORIZED REPRESENTATIVE L.� .