Ordinance No. 11,940ORDINANCE NO. 11,940
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY
CLERK TO ATTEST TO AN AGREEMENT FOR ADVERTISING SERVICES AND
PROMOTION OF THE ARTS WITH THE BAYTOWN SYMPHONY ORCHESTRA;
AUTHORIZING PAYMENT IN AN AMOUNTNOT TO EXCEED SEVENTEEN THOUSAND
FIVE HUNDRED AND NO /100 DOLLARS ($17,500.00); MAKING OTHER PROVISIONS
RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City
Manager to execute and the City Clerk to attest to an Agreement for Advertising Services 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: That the City Council of the City of Baytown hereby approves the budget, attached hereto as
Exhibit "B" and incorporated herein for all intents and purposes, and authorizes payment of hotel occupancy tax
revenues to the Baytown Symphony Orchestra in an amount not to exceed SEVENTEEN THOUSAND FIVE
HUNDRED AND NO /100 DOLLARS ($17,500.00); pursuant to the agreement authorized in Section I hereof.
Section 3: That the City Manager is hereby granted general authority to approve a decrease or an
increase in costs by FIFTY THOUSAND AND NO /100 DOLLARS ($50,000.00) or less, provided that the amount
authorized in Section 2 hereof may not be increased by more than twenty-five percent (25 %).
Section 4: This ordinance shall[ akeeffect immediately from and after its passage by the City Council of
the City of Baytown. ,,
INTRODUCED, READ, and PASSED by the affirmative vote ofJhc City Council of the City of Baytown,
this the 10'" day of May, 2012. /j
Mayor
A ST:
r'
LETICIA B Y°$ • rt ,.)Qrlc f
APPROVED AS TO RM:
ACIO RAMIREZ, SR., City AVney
O,Cobfs01\Iega1\K=n\Files \City Council \0rdinances\2012\May 10\ Authorize2012BaytmmSymphonyOrchesvaContract .doc
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 "Ck ), and Baytown Symphony Orchestra, a non -profit corporation incorporated under the
laws ofthe 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 ocwpancy 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 5, 2012, which are expected to directly
enhance and promote tourism and the convention and hotel industry during the City's 2011 -12
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 terns 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 Ill, 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.
12 Specific Restrictions on Use of Funds. The Orchestra agrees to demonstrate strict
compliance with the record keeping and apportionment limitations imposed by Sections 351.101(8),
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) 'Ile Orchestra shall prepare and submit to the City Manager of the City an annual budget for
approval, for such operations of the Orchestra fimded 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 M 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 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 Orchestra shall maintain any hotel tact funds paid to the
Orchestra by the City in a separate account and shall not commingle such funds with any other
money.
23 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 fimds 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 famish to the City a quarterly report, including:
(1) a completed financial report,
(2) a list of the expenditures made or copies of the invoice or receipts with regard to
hotel occupancy tax funds pursuant to TEx. Tax CODE §351.101(c), and
(3) a copy of all financial records (ag., 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, 2012, 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 32 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 SEVENTEEN THOUSAND FIVE HUNDRED AND NO /100 DOLLARS
($17,500.00) 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.
32 Due Date. The City shall pay the fee specified in Section 3.1 on or before the thirtieth
(30`) 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 TERWUNATION
4.1 Term. The term of this Agreement shall commence on the date of execution by the City
Managee and terminate October 31, 2012, 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 fimding. Any ineligible
:�1 - ^.I! s!! {!1 .�IU II' ! !11 � .1_= i_1S i!!'. _t!L'. t!`. c ►I
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 42(a), the
Orchestra shall be entitled to payment far 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 ofthe legal existence ofthe 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
(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 teen, or quarterly as required by
Section 2.4.
4.4 In the event that this Agreement is terminated pursuant to Section 4.2 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 351 of the Texas Tax Code. Late
payments shall accrue interest at the rate provided in Section 2251.025 of 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 I.I. 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 fimds maintenance, and
limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax fimds.
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, anployees,
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 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 +; VU or better for all liability policies.
Insurance carriers licensed and admitted to do business in the State of Texas will be
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
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
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 CLAIMS LOSS, DAMAGE, CAUSE OF ACTION, SUIT
AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE
RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY,
UNMMD 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
fiom all claims, demands, and causes of action of every kind and character, including the cost of
defense thereo& for any injury to or death of any pawn (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 Arbitradon. 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
� t.
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 fiords provided by the City pursuant to
Section 3.1 and either not expended or not expended in full compliance with this Agreement
shall be mfimded to the City pursuant to the terns 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.
53 Assignment. The Orchestra 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 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:
M
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.
541 AppHeation 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.
Amyemmt for ftmotion of the Aft and Advadsinit Selviae4 Papa
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 belialf of each Party hereby
confirm that such officers have full authority to execute this Agreement and to bind the Party
heJshe represents.
EXECUTED ON this the " day of .20—.
C" OF BAYTOWN
By:
ROBERT D. LEIPER, City Manager
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
APPROVED AS TO FUNDING AVAILABILITY:
LOUISE RICHMAN, Director of Finance
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EXECUTED ON this the:14ay of hyi -120_L2,
ATTEST:
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AgMMeM for Promotion of the Arts and Advertising Scrviccs Page 10
Exhibit "B
ti P O. Box 2217
Baytown, TX 77522
N7 ORCHESTRA
Baytown Symphony Orchestra
Proposed Budget of Concert Expenses
for May 5, 2012
Direct Concert Expense
2012 Estimate
AMF Dues
200.00
AMF Pension
890.00
Professional Pay
9,600.00
Non - Professional Stipends
3,000.00
Music Rental
390.00
Scholarship Awards
500.00
Student Orchestra
Registration
320.00
Insurance Coverage
400.00
Promotional Expenses
2,200.00
Total
17,500.00
The 13a)5own Symphony Orcheslm is 101(c)Lac cmmpt corpomrion
GIN 74.167W40
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 5, 2012, which are expected to directly
enhance and promote tourism and the convention and hotel industry during the City's 2011-12
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 fmancial 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, 2012,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 SEVENTEEN THOUSAND FIVE HUNDRED AND NO/100 DOLLARS
($17,500.00) 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, 2012, 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/ day of 20►
OF BAYTOWN
(� By:
.4y.•.• ....�,.r0�.1
y.�. �ti� .�� OBERT D. LEIPER,City Manag�
A `a: ;� %
am
•
�. -rk
APPROVED AS TO FORM:
(*J(k)h Li N A'1
.,City Attorney
tEaren Hot ner,ttrsI A,s6iatant
APPROVED AS TO FUNDING AVAILABILITY:
1/4e-Aci-4-,-k-L2- p _ j _
LOUISE RICHMAN, Director of Finance
Agreement for Promotion of the Arts and Advertising Services,Page 9
EXECUTED ON this the Vkay of ApeIL ,20L`L
BAYTOWN SYMPHONY ORCHESTRA
By: Q.
( ature)
ivay A • Guhr�
(Printed Ndrne)
CSI�eV1�
(Title)ATTEST: 3CLjrOWn S 01 pi/16h OrektsL r4.
Signature)
- lgErRit 4RE A
(Printed Name)
�l Je t-1Q.
(Title)
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Agreement for Promotion of the Arts and Advertising Services,Page 10