Ordinance No. 12,357ORDINANCE NO. 12,357
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
ESTABLISHING THE CITY OF BAYTOWN 2013 -14 TOURISM PARTNERSHIP GRANT
PROGRAM ALLOCATIONS; AUTHORIZING THE EXPENDITURE OF SUCH
ALLOCATIONS IN THE AMOUNT OF ONE HUNDRED TWENTY THOUSAND AND
NO /100 DOLLARS ($120,000.00) SUBJECT TO THE RECIPIENT'S EXECUTION OF A
TOURISM PARTNERSHIP GRANT AGREEMENT; APPROVING A STANDARD FORM
HOTEL OCCUPANCY TAX GRANT AGREEMENT; 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 establishes the City of
Baytown 2013 -14 Tourism Partnership Grant Program allocations:
Tourism Partnership Grant
Recipient
Art League of Baytown
Event
Christmas on Texas Avenue
Grant
Amount
$5,000
Bayou Bowl Association
12th Annual Bayou Bowl
$55,000
Baytown Little Theater
Summer Musical Series
$16,000
Baytown Symphony Orchestra
Beatles Concert
$7,000
Performing Arts Center
Annual Performance Series 9 Performances
$22,000
Project Blue
Jail Break Run
$10,000
Running Alliance Sport
Bud Heat Wave
$5,000
Section 2: That the City Council of the City of Baytown, Texas, authorizes payment to the
sponsors of the events referenced in Section 1 hereinabove in the total amount of ONE HUNDRED TWENTY
THOUSAND AND NO /100 DOLLARS ($120,000.00) subject to the recipient's execution of a Tourism
Partnership Grant Agreement, the standard form of which is adopted in Section 3 hereof.
Section 3: That the Tourism Partnership Grant Agreement, which is attached hereto as Exhibit "A"
and incorporated herein for all intents and purposes, shall be the standard grant agreement, which shall be
executed by each tourism grant recipient as well as the City prior to the recipient's event as a prerequisite to
receiving grant funding.
Section 4: This ordinance shall take effect immediately from
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote i
Baytown this the 26h day of September, 2013.
ROBED AS TO FORM:
its passage by the City
the City Council of the City of
Mayor
'NACIO�IREZ, S.. City Attorney
R: \Karen \Files \City Counci1\0rdinances \2012\September 13\ TourismPartnenhipGrantPmgramAllocations &StandardFormofAgreement.doc
Exhibit "A"
Tourism Partnership Grant Agreement
STATE OF TEXAS §
COUNTY OF HARRIS §
THIS AGREEMENT made between the City of Baytown, Texas, a municipal corporation
(the "City "), and , a non - profit corporation incorporated
under the laws of the State of Texas (the "Grant Recipient ").
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, Section 351.101(a) of the Texas Tax Code also authorizes the City to use
revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel
industry by the encouragement, promotion, improvement and application of the arts, including
instrumental and vocal music; and
WHEREAS, the Grant Recipient will conduct [Event],
which will be held [Location] on , 20_
[Date], which features , which is expected to
directly enhance and promote tourism and the convention and hotel industry (the "Event "); and
WHEREAS, the Grant Recipient proposes to use various means of advertising to
promote the City of Baytown together with the Event; and
WHEREAS, the City and the Grant Recipient desire to enter into this 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 Grant Recipient 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 Grant Recipient
of the agreed payments of hotel tax funds specified in Article III, the Grant Recipient 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 and entertainment services associated with the Event.
Tourism Partnership Grant Agreement, Page 1
Funds which are unused shall be refunded to the City within thirty (30) days after the conclusion
of the Event.
1.2 Specific Restrictions on Use of Funds. The Grant Recipient 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 Grant Recipient shall not utilize
hotel occupancy tax funds for any expenditure which has not been specifically documented to
satisfy the purposes set forth in Article I hereof.
H.
RECORD KEEPING AND REPORTING REQUIREMENTS
2.1 Budget.
(a) The Grant Recipient shall prepare and submit to the City Manager of the City an annual
budget for approval for such operations of the Grant Recipient funded by hotel occupancy
tax revenue. This budget shall specifically identify proposed expenditures of hotel tax funds
by the Grant Recipient. 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 Grant Recipient 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 Grant Recipient acknowledges that the approval of such budget by the City Council
creates a fiduciary duty in the Grant Recipient with respect to the hotel occupancy tax funds
paid by the City to the Grant Recipient under this Agreement. The Grant Recipient 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 Grant Recipient shall maintain any hotel tax funds paid to the
Grant Recipient by the City in a separate account and shall not commingle such funds with any
other money.
2.3 Financial Records. The Grant Recipient shall maintain complete and accurate financial
records of each expenditure of the hotel occupancy tax funds made by the Grant Recipient. 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 Grant Recipient shall make such
financial records available for inspection and review and shall provide copies of the same if so
requested. The Grant Recipient 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.
Tourism Partnership Grant Agreement, Page 2
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 Grant
Recipient shall furnish to the City a quarterly report, including:
(1) a completed financial report,
(2) a list of the expenditures made or copies of the invoice or receipts with regard to
hotel occupancy tax funds pursuant to TEX. TAX CODE §351.101(c), and
(3) a copy of all financial records (e.g., copies of front and back cleared checks or bank
statements, and other relevant documentation).
The Grant Recipient shall prepare and deliver all reports to the Tourism Coordinator in a form and
manner approved by the City Manager or his designee. The Grant Recipient 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 Post Event Report. Within sixty (60) days after the Event, the Grant Recipient 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. Such report
shall also state the number of people who attended the Event, the number of hotel rooms used as
a result of the Event, and any other information requested by the City Manager. This post event
report must be signed and verified by an officer of the Grant Recipient as being true and correct.
2.6 Notice of Meetings. The Grant Recipient shall give the City Manager reasonable advance
written notice of the time and place of all meetings of the Grant Recipient's Board of Directors, as
well as any other meeting of any constituency of the Grant Recipient 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 Grant
Recipient's activities set forth in this Agreement, the City agrees to pay the Grant Recipient an
amount not to exceed AND NO /100 DOLLARS
($ .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 Grant
Recipient in performing the services required hereunder.
If the Grant Recipient, at any time during the term of this agreement, incurs a debt, as defined in
section 2 -662 of the Code of Ordinances of the City of Baytown, the Grant Recipient shall
immediately notify the City's Director of Finance in writing. If the City's Director of Finance
becomes aware that the Grant Recipient has incurred a debt, the City's Director of Finance shall
immediately notify the Grant Recipient in writing. If the Grant Recipient does not pay the debt
within 30 days of either such notification, the City's Director of Finance may deduct funds in an
Tourism Partnership Grant Agreement, Page 3
amount equal to the debt from any payments owed to the Grant Recipient under this Agreement,
and the Grant Recipient 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 funds
not used for promotion of the arts or advertising and conducting promotional programs to attract
tourists to the Baytown area and the Event shall be refunded to the City within thirty (30) days
after the conclusion of the Event.
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, 20 , or after the Grant Recipient 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 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
Grant Recipient 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 Grant Recipient 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.
Tourism Partnership Grant Agreement, Page 4
Any use of remaining funds by the Grant Recipient 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 Grant Recipient;
(b) The insolvency of the Grant Recipient, the filing of a petition in bankruptcy, either
voluntarily or involuntarily, or an assignment by the Grant Recipient 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 Grant Recipient 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 Grant Recipient 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 Grant
Recipient 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 Grant Recipient'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 Grant Recipient with another private entity, person,
or organization for the performance of those services described in Section 1.1. In the event that the
Grant Recipient enters into any arrangement, contractual or otherwise, with such other entity,
person or organization, the Grant Recipient 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.
Tourism Partnership Grant Agreement, Page 5
5.2 Independent Contractor. The Grant Recipient 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 Grant Recipient shall have exclusive control of its operations and
performance of services hereunder, and such persons, entities, or organizations performing the same
and the Grant Recipient shall be solely responsible for the acts and omissions of its directors,
officers, employees, agents, and subcontractors. The Grant Recipient shall not be considered a
partner or joint venturer with the City, nor shall the Grant Recipient be considered nor in any
manner hold itself out as an agent or official representative of the City.
5.3 Insurance. The Grant Recipient 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 02 12 07
■ 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 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 Grant Recipient 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
tnaemnity.
THE GRANT RECIPIENT 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,
Tourism Partnership Grant Agreement, Page 6
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
GRANT RECIPIENT PURSUANT TO THIS AGREEMENT, THE
CONDUCT OR MANAGEMENT OF THE GRANT RECIPIENT'S
BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR
OMISSION BY THE GRANT RECIPIENT, 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 GRANT RECIPIENT. IT IS THE EXPRESSED INTENTION
OF THE PARTIES HERETO, BOTH THE GRANT RECIPIENT
AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH IS INDEMNITY BY THE GRANT RECIPIENT
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 GRANT RECIPIENT'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 GRANT RECIPIENT 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.
Tourism Partnership Grant Agreement, Page 7
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 Grant Recipient 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 Grant Recipient's work to be
performed hereunder. This release shall apply with respect to the Grant Recipient'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 Grant Recipient hereby agree that no claim or dispute between the City and the Grant
Recipient 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 Grant Recipient consents to be joined in the arbitration
proceeding if the Grant Recipient'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 Event is cancelled due to a force majeure, the refund
obligations of the Grant Recipient 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 Grant Recipient 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 GRANT RECIPIENT
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
Tourism Partnership Grant Agreement, Page 8
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 Grant Recipient and their respective successors and assigns.
5.11 Application of Laws. All terms, conditions, and provisions of this Agreement are subject
to all applicable federal laws, state laws, the Charter of the City of Baytown, all ordinances passed
pursuant thereto, and all judicial determinations relative thereto. The place of making and the place
of performance for all purposes shall be Baytown, Harris County, Texas.
5.12 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it
shall not be construed for or against any party hereto on the basis that such party did or did not
author the same.
5.13 Complete Agreement. This Agreement contains the entire understanding and constitutes
the entire agreement between the parties hereto concerning the subject matter contained herein.
There are no representations, agreements, arrangements, or understandings, oral or written, express
or implied, between or among the parties hereto, relating to the subject matter of this Agreement,
which are not fully expressed herein. The terms and conditions of this Agreement shall prevail
notwithstanding any variance in this Agreement from the terms and conditions of any other
document relating to this transaction or these transactions.
5.14 Duplicate Originals. This Agreement is executed in duplicate originals.
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 , 20
CITY OF BAYTOWN
0
ATTEST:
LETICIA BRYSCH, City Clerk
Tourism Partnership Grant Agreement, Page 9
ROBERT D. LEIPER, City Manager
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
EXECUTED ON this the day of , 20_.
0
(Signature)
(Printed Name)
(Title)
ATTEST:
(Signature)
(Printed Name)
(Title)
R:\Karen\Files \Contracts \Tourism Grant Agreement\ Agreement4AdvertisingServices2012 .doc
Tourism Partnership Grant Agreement, Page 10
t
Tourism PartnershipAgreementGrant
STATE OF TEXAS §
COUNTY OF HARRIS §
THIS AGREEMENT made between the City of Baytown, Texas, a municipal corporation
(the "City"), and The Baytown Little Theater Incorporated, a non-profit corporation incorporated
under the laws of the State of Texas(the"Grant Recipient").
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, Section 351.101(a) of the Texas Tax Code also authorizes the City to use
revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel
industry by the encouragement, promotion, improvement and application of the arts, including
instrumental and vocal music;and
WHEREAS, the Grant Recipient will conduct a 2014 Season Summer Musical in July
2014, at Lee College Performing Arts Center, which features musical talent and Other art forms,
which is expected to directly enhance and promote tourism and the convention and hotel industry
(the"Event");and
WHEREAS, the Grant Recipient proposes to use various means of advertising to
promote the City of Baytown together with the Event;and
WHEREAS,the City and the Grant Recipient desire to enter into this 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 Grant Recipient agree as follows:
I.
USE OF HOTEL OCCUPANCY TAX REVENUE
101 Use of Funds. For and in consideration of the payment by the City to the Grant Recipient
of the agreed payments of hotel tax funds specified in Article III,the Grant Recipient agrees to use
10
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 and entertainment services associated with the Event.
Tourism FartagmWp Grant,A ,emenL Page i
Funds which are unused shall be refunded to the City within thirty (30) days after the conclusion
of the Event.
1.2 Specific Restrictions on Use of Funds. The Grant Recipient 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 Grant Recipient shall not utilize
hotel occupancy tax funds for any expenditure which has not been specifically documented to
satisfy the purposes set forth in Article I hereof.
II.
RECORD KEEPING AND REPORTING REQIJIMWIE? TS
2.1 Budget.
(a) The Grant Recipient shall prepare and submit to the City Manager of the City an annual
budget for approval for such operations of the Grant Recipient funded by hotel occupancy
tax revenue. This budget shall specifically identify proposed expenditures of hotel tax funds
by the Grant Recipient. 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 Grant Recipient 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 Grant Recipient acknowledges that the approval of such budget by the City Council
creates a fiduciary duty in the Grant Recipient with respect to the hotel occupancy tax funds
paid by the City to the Grant Recipient under this Agreement. The Grant Recipient 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 Grant Recipient shall maintain any hotel tax funds paid to the
Grant Recipient by the City in a separate account and shall not commingle such funds with any
other money.
2.3 Financial Records. The Grant Recipient shall maintain complete and accurate financial
records of each expenditure of the hotel occupancy tax funds made by the Grant Recipient. 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 Grant Recipient shall make such
financial records available for inspection and review and shall provide copies of the same if so
requested. The Grant Recipient 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.
Tourism Parinemhip_Grant Anment,Page 2
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 Grant
Recipient shall furnish to the City a quarterly report,including:
(1) a completed financial report,
(2) a list of the expenditures made or copies of the invoice or receipts with regard to
hotel occupancy tax funds pursuant to TEx.TAx CODE§351.101(c),and
(3) a copy of all financial records(e.g., copies of front and back cleared checks or bank
statements,and other relevant documentation).
The Grant Recipient shall prepare and deliver all reports to the Tourism Coordinator in a form and
manner approved by the City Manager or his designee. The Grant Recipient shall respond promptly
to any request from the City Manager or his designee for additional information relaxing to the
activities performed under this Agreement.
2.5 Post Event Report. within sixty (60) days after the Event, the Grant Recipient 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. Such report
shall also state the number of people who attended the Event,the number of hotel rooms used as
a result of the Event, and any other information requested by the City Manager. This post event
report must be signed and verified by an officer of the Grant Recipient as being true and correct.
2.6 Notice of Meetings. The Grant Recipient shall give the City Manager reasonable advance
written notice of the time and place of all meetings of the Grant Recipient's Board of Directors, as
well as any other meeting of any constituency of the Grant Recipient at which this Agreement or
any matter subject to this Agreement shall be considered.
IM
HOTEL OCCUPANCY TAX REVENUE PAYMENTS
3.1 Payments. Subject to Section 3.2 of this Agreement, as a consideration for the Grant
Recipient's activities set forth in this Agreement, the City agrees to pay the Grant Recipient an
amount not to exceed SIXTEEN THOUSAND AND NO/100 DOLLARS ($16,000.00) 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 Grant Recipient in
performing the services required hereunder.
If the Grant Recipient,at any time during the term of this agreement, incurs a debt, as defined in
section 2-662 of the Code of Ordinances of the City of Baytown, the Grant Recipient shall
immediately notify the City's Director of Finance in writing. If the City's Director of Finance
becomes aware that the Grant Recipient has incurred a debt,the City's Director of Finance shall
immediately notify the Grant Recipient in writing. If the Grant Recipient does not pay the debt
within 30 days of either such notification,the City's Director of Finance may deduct funds in an
Tourism Partnership Grant��.A�r�pMent,Page 3
. .�rrr�wrrrii r■ ■rr.rrr �ruir
amount equal to the debt from any payments owed to the Grant Recipient under this Agreement,
and the Grant Recipient waives any recourse therefor.
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 promotion of the arts or advertising and conducting promotional programs to attract
tourists to the Baytown area and the Event shall be refunded to the City within thirty (30) days
after the conclusion of the Event.
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, 2014, or after the Grant Recipient 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 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
Grant Recipient 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 Grant Recipient 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.
Tourism El&emhin�t A _„MML Page 4
Any use of remaining funds by the Grant Recipient 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 Grant Recipient;
(b) The insolvency of the Grant Recipient, the filing of a petition in bankruptcy, either
voluntarily or involuntarily,or an assignment by the Grant Recipient 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 Grant Recipient 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 Grant Recipient 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 Grant
Recipient 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 Grant Recipient'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 Grant Recipient with another private entity, person,
or organization for the performance of those services described in Section 1.1. In the event that the
Grant Recipient enters into any arrangement, contractual or otherwise, with such other entity,
person or organization, the Grant Recipient 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.
Tourism Farm hiP Gent Agreement Page .
5.2 Independent Contractor. The Grant Recipient 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 Grant Recipient shall have exclusive control of its operations and
performance of services hereunder,and such persons,entities,or organizations performing the same
and the Grant Recipient shall be solely responsible for the acts and omissions of its directors,
officers, employees, agents, and subcontractors. The Grant Recipient shall not be considered a
partner or joint venturer with the City, nor shall the Grant Recipient be considered nor in any
planner hold itself out as an agent or official representative of the City.
5.3 Insurance. The Grant Recipient 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 010413
0 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 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 Grant Recipient 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 Indemni .
THE GRANT RECIPIENT AGREES TO AND SMALL INDENIlNIFY,
HOLD HARMLESS, AND DEPEND THE CITY, IT'S OFFICERS,
AGENTS AND EMPLOYEES (HEREINAFTER COLLECTI LY
REFERRED TO AS THE "CITY"), FROM AND AGAINST ANY
AND ALL CLAIMS LOSSES DAMAGES, CAUSES OF A�t)N
Towism Pamemhip Grant Anent,Page 6
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
GRANT RECIPIENT PURSUANT TO THIS AGREEMENT, THE
CONDUCT OR MANAGEMENT OF THE GRANT RECIPIENT'S
BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR
OMISSION BY THE GRANT RECIPIENT, ITS AGENTS, AND
EMPLOYEES, WHEN PERFORMING SERVICES IN
ACCORDANCE WITH TffiS 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 GRANT RECIPIENT. IT IS 1'HE EXPRESSED INTENTION
OF THE PARTIES HERETO, BOTH THE GRANT RECIPIENT
AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH IS INDEMNITY BY TFIE GRANT RECIPIENT
TO INDEMNIFY AND PROTECT 1'HE 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 (11) THE GRANT RECIPIENT'S JOINT AND/OR SOLE
NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED
FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO
THE CITY FOR ANY CLAIlVI, LOSS, DAMAGE, CAUSE OF
ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH
OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF
THE CITY, IfNAlCED WITH TSE 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 GRANT RECIPIENT 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.
Tourism Partnership Grant A Page 7
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 Grant Recipient 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 Grant Recipient's work to be
performed hereunder. This release shall apply with respect to the Grant Recipient'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 Grant Recipient hereby agree that no claim or dispute between the City and the Grant
Recipient 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 Grant Recipient consents to be joined in the arbitration
proceeding if the Grant Recipient'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 Event is cancelled due to a force majeure, the refund
obligations of the Grant Recipient 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 Grant Recipient 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 Sty maul,certified
mail,return receipt requested,or by hand-delivery,addressed to the respective parties as follows:
CITY GRANT RECIPIENT
City of Baytown The Baytown Little Theater Incorporated
Attn:City Manager Attn:President
P.O.Box 424 P.O.Box 2022
Baytown,TX 77522 Baytown,TX 77522-2022
Tourism Partnership Grant A ,,�m ment Page S
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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 Grant Recipient 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 Baytm%m, 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,
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.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 firom 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
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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,,,- M.day of LL 2013.
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By:
OBERT D. EMPER,City Manafer
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