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HomeMy WebLinkAbout1984-1518 - Ordinance - 05/15/1984ORDINANCE NO. 1518 AN ORDINANCE AUTHORIZING THE MAYOR AND THE CITY MANAGER TO EXECUTE AN AGREEMENT STYLED "AGREEMENT FOR LEASE, OCCUPANCY AND USE OF PUBLIC PROPERTY AND THE PROVISION OF ADVERTISING AND TOURIST PROMOTION SERVICES FOR THE CITY OF COLLEGE STATION". WHEREAS, the City of College Station, acting through its City Council, pursuant to its home rule powers and Article 1269j-4.1 of Vernon's Texas Revised Civil Statutes, has determined the necessity and public benefit of advertising the City and its collective attractions, conveniences, and accommodations for tourism, seminars, conventions, business conferences, and related travel and lodging based trade; WHEREAS, the City of College Station has by action of the City Council adopted and levied a Room Occupancy Tax pursuant to Article 1269j-4.1 and desires to use said tax revenues for the permitted purposes; and WHEREAS, the Bryan/College Station Chamber of Commerce is willing to perform personal services in the area of the promotion of tourism and advertising for tourism for the City of College Station and related activities; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION: That the Mayor and City Manager are hereby authorized to execute on behalf of the City of College Station the agreement styled "Agreement for Lease, Occupancy and Use of Public Property and the Provision of Advertising and Tourist Promotion Services for the City of College Station" attached hereto as Exhibit "A", which is incorporated herein by this reference for all purposes, and to accomplish and take such other further actions as shall be necessary to complete said transaction. PASSED, ADOPTED AND APPROVED this 15th day/of May,, 1984. APPROO ATTEST: CITY SEC ARY AYOR 04252 AGREEMENT FOR LEASE, OCCUPANCY AND USE OF PUBLIC PROPERTY AND THE PROVISION OF ADVERTISING AND TOURIST PROMOTION SERVICES FOR THE CITY OF COLLEGE STATION This is an Agreement and Lease by and between the CITY OF COLLEGE STATION, a Texas home rule municipal corporation (CITY) and the BRYAN/COLLEGE STATION CHAMBER OF COMMERCE, a Texas non-profit corporation (CHAMBER). WHEREAS, the CITY OF COLLEGE STATION, acting through its City Council, pursuant to its home rule powers and Article 1269j-4.1, has determined the necessity and public benefit of advertising the collective attractions, conveniences, and accommodations for tourism, seminars, conventions, business conferences, and related travel and lodging based trade; and WHEREAS, the CITY OF COLLEGE STATION has, by action of the City Council, adopted and levied a room occupancy tax, pur- suant to Article 1269j-4.1 (the Act), and desires to utilize a permissible portion of said tax revenues for the permitted pur- poses set forth herein; and WHEREAS, the CITY OF COLLEGE STATION has issued or will soon issue one or more Certificates of Obligation for the purpose of purchasing and paying for certain real property, and the improvements thereon, said Certificates being payable first from revenues of the room occupancy tax authorized by Article 1269j- 4.1, and additionally, if necessary, from excess revenues of the City's electric, water, or sewer funds, and seeks to utilize said property, in accordance with Section 3a.(a) of the Act, as "other city buildings", to provide a location for the advertising and promotion of tourist and convention trade, to provide assistance for registration of delegates, attendees, or other conference or convention participants, to provide local hospitality and information services to visitors, and to office and house personnel and equipment for the full-time solicitation of such trade, all in accordance with Section 3.c of the Act, and -1- WHEREAS, the CITY OF COLLEGE STATION has determined that it can most efficiently and economically obtain the performance and satisfaction of said objectives by contracting with the CHAMBER to provide the specific services and activities sought to be obtained, each of which being permissible purposes for the expenditure of room occupancy tax revenues generated and collected in accordance with Article 1269j-4.1; and further by providing space for the conducting of said activities within buildings, to he,_.purchased-w-ith the proceeds of said Certificates of Obligation (it being understood that said buildings shall be assets of the room occupancy tax fund of the CITY); and WHEREAS, the City Council has authorized this Agreement for the provision of such space to, and the procurement of said services from the CHAMBER (said services being personal services, having as the major component of their value the manner and nature of their provision, and the individuals involved in supervising, planning, and providing them), and the City Council having determined by virtue of experience, volunteer commitments, and complimentary private sector contribution, that such services are most economically to he obtained by and through this Agreement with the CHAMBER; and WHEREAS, the CHAMBER is willing to occupy said space and provide the desired services described and provided for herein, upon the terms and conditions set forth in this Agreement; and WHEREAS, the Board of Directors of the CHAMBER has authorized this Agreement, and the expenditures to he made hereunder; NOW, THEREFORE, the parties do agree and are bound to the terms, conditions, obligations, and responsibilities here set forth: ARTICLE I SERVICES The CHAMBER does hereby agree to provide the service set forth on Exhibit A to this Agreement, and to obtain and pay all costs and expenses of personnel, equipment, overhead, and other necessaries in connection therewith. This Agreement is made for and in consideration of the CITY's obligation to provide "lease space" pursuant to Article II, and to pay for the services performed in accordance with Article IV. Said services shall be performed under the direction and control of the Convention and Visitors Bureau of the CHAMBER. The CHAMBER OF COMMERCE shall designate the individual with direct daily responsiblility for providing the personal services described herein, both the City of College Station and the City of Bryan shall be entitled to make appropriate recommendations to the Board of Directors for the CHAMBER should either City believe services are not being provided as set forth in Exhibit A and the Chamber Board will take appropriate remedial action. The final determination of the manner, means, methods, characteristics, and work quality of such services shall be made by the Board of Directors for the CHAMBER. The parties may from time to time add to or remove services from the list, provided that no service shall be added unless same represents a permissible expenditure of room tax occupancy funds under the Act, as amended. ARTICLE II LEASE OF PREMISES CITY does hereby lease and demise unto the CHAMBER the real property described on Exhibit B hereto, and does addition- ally assign to the CHAMBER OF COMMERCE for the period and dura- tion of this Agreement, all rights and responsibilities of the CITY under the Real Estate Purchase Contract of even date herewith, by and between the CITY and the Seller of said real property, Chimney Hill Joint Venture. The lease, use, and occupancy of said space is provided in partial consideration of the provision of services by the CHAMBER OF COMMERCE, as set forth herein. For purposes of determining the price for services to be paid as subsequently provided for herein, it is understood and agreed that the actual value of the premises leased and demised unto the CHAMBER, together with the rights and privileges assigned therewith, is Sixty Thousand Dollars ($60,000.00) per year for the first ten (10) years of this Agreement, said figure being the approximate annual cost to obtain the same or similar facility for a ten (10) year lease in the private real estate market, as of the date of this Agreement. After the tenth anniversary of this Agreement, the parties shall determine the value of the lease in subsequent years, to be used in the calculations set forth in Article IV. ARTICLE III TERM This Lease and Agreement shall continue in force and effect for so long as the CHAMBER shall perform ably, effi- ciently, and well, by prudent husiness standards, the services shown on Exhibit A, as amended from time to time by the parties. If the CHAMBER shall perform said services with such efficiency, quality, and cost effectiveness as is generally acceptable in the husiness community, the CHAMBER shall have the continuing right to occupy the lease premises, to perform the services described herein, and to receive payment hereunder, subject only to discontinued funding for reasons beyond the control of the CITY. ARTICLE IV PAYMENT The CITY OF COLLEGE STATION agrees to pay to the CHAMBER, from available room occupancy tax revenues, in each CITY fiscal year, a fair and reasonable price for the services per- formed by the CHAMBER. Such price shall consider the cost of the services provided, the number of volunteer hours involved, the quality of the services provided, and the measured or perceived -4- results obtained in enhancing tourism, convention, travel, and lodging trade. The price shall be set by mutual agreement, and arrived at in good faith in each City fiscal year. The CITY shall pay in each fiscal year, in cash, an amount equal to the difference between the value (and agreed price), of the services provided hereunder, and the amount set forth or determined in accordance with Article II, representing the value of lease space provided. The CITY'S obligation to pay for services under this Agreement is expressly conditioned upon available room occupancy tax revenues for the fiscal year, and shall never be a general obligation of the CITY, nor a "debt" within the meaning of the provisions of the Texas Constitution pertaining to such obliga- tions of local governments. In the event that the CITY's author- ity to collect room occupancy tax, or utilize same for the purposes of this Agreement, is abrogated by the legislature, or modified in such manner as to prevent performance of this Agree- ment, this Agreement shall terminate. ARTICLE V DEVELOPMENT AND RENOVATION The CHAMBER accepts the leased premises and agrees to renovate and remodel the premises to provide an attractive and convenient location for the provision of services to the CITY under this Agreement. The CHAMBER hereby represents to the CITY that it has or will obtain necessary funding anticipated to accomplish the remodeling and renovation program as funding is needed. The final program shall be subject to the approval of the Board of Directors of the CHAMBER, and the City Manager of the CITY OF COLLEGE STATION. This Lease and Agreement is contingent for its final effect upon completion of such finally adopted renovation and remodeling program, and the actual occupation and operation of -5- the facility on or before six (6) months. The City Manager may extend said date by one hundred eighty (180) days. Failing the completion of such work and the occupation and operation of the facility within said time period, as extended, this Lease shall terminate. ARTICLE VI REPAIR, MAINTENANCE AND INSURANCE The CHAMBER shall pay all normal and reasonable costs of maintaining, repairing, or restoring the property during the term of this Agreement. The Chief Executive Officer of the CHAMBER shall advise and consult with the City Manager or his delegate prior to undertaking any structural repairs, except necessary repairs of an emergency nature. No structural changes, alterations, modifications, or additions shall be made without the preparation of plans and specifications approved and certified by registered professional engineers, and the approval of the City Manager or his delegate for such construction. The Chamber shall provide a multi -peril commercial policy covering all risks from fire, wind, rain, hail, windstorm, flood (if subject to N.F.I. program by virtue of location), explosion, collision, or other catastrophy, in an amount equal to or exceeding the appraised value of the premises in each fiscal year, which policy shall name both the CHAMBER and the CITY as insureds, as their interest may appear, and shall provide for fifteen (15) day notice of cancellation prior to termination. ARTICLE VII RECOVERY OF EXPENSE The CHAMBER has expended the sum of Twelve Thousand Dollars ($12,000.00) toward the purchase of the building, together with actual costs of closing the purchase. Upon termination of this Agreement for any reason, such amounts shall he repaid, without interest, to the CHAMBER. -6- The CHAMBER will expend certain funds toward remodeling and renovation of the premises. Upon completion of such work, and any future renovation or construction authorized by the CITY, the CHAMBER shall submit a sworn statement and audit of such costs to the City Manager who shall review the accuracy of same and approve the correct and accurate total cost. Upon the termination of this Agreement for any reason, the CHAMBER shall he entitled to reimbursement of a percentage of such cost according to the following schedule, based upon the date of completion set forth in the sworn statement of such cost, and separately applicable to the original remodeling and renovation, and to any subsequent projects. During Year Percentage of After Completion Reimbursement 1 80% 2 70% 3 60% 4 50% 5 40% 6 30% 7 20% 8 10% 9 5% 10 0 ARTICLE VIII MISCELLANEOUS INCIDENTAL USE The CITY or the CHAMBER may use portions of the premises covered by this Agreement for uses other than those specified and provided for herein, on a temporary or intermittent basis, provided that such space is not then needed for the activities and services to be provided by the CHAMBER pursuant to this Agreement. The City Manager and the Chamber President may adopt such policies or procedures as are necessary for the utilization of such space. -7- REPORTS AND AUDITS The books and records of the CHAMBER pertaining to the Convention and Visitors Bureau shall be open to inspection by the CITY or its auditors, at all times. The CHAMBER shall submit a quarterly report on the operation and activity of the Convention and Visitors Bureau, which shall be delivered to the Mayor and City Manager. ENFORCEMENT Breach of this Agreement, by either party, shall never be or become the basis of any claim for damages, against either entity, or the individuals, officers, or employees of either, whether for lost profits, future earnings, or any contractual benefit, or for any other claim or cause of action, whether statutory or common law, provided that this paragraph shall not prevent any action for recoupment of funds paid unlawfully or in error, or paid but not earned. This Agreement shall be enforceable by mandatory injunction. No attorneys fees shall be recoverable by any party seeking to enforce this Agreement, whether at law or in equity, and if any statutory right to attorneys fees exists, each party expressly waives and releases same, in mutual consideration of the execution of this Agreement. NOT SEVERABLE This Contract is not severable as to any part or portion hereof, and if any material portion hereof shall be found to be invalid or unenforceable, this contract shall terminate. The parties do expressly agree to negotiate in good faith toward a substitute agreement to accomplish the purposes and goals set forth herein. -8- TEXAS LAW This contract shall be governed by the provisions of Texas Law, except to the extent that same may be pre-empted by federal legislation pertinent to this Agreement. ENTIRETY This contract is the entire agreement between the parties, and no representations, expectations or collateral agreements shall be effective. No subsequent modification of this Agreement shall be permitted unless same be authorized by the Board of Directors of the Bryan/College Station CHAMBER OF COMMERCE and the City Council of the CITY OF COLLEGE STATION. TERMINATION OF AGREEMENT This contract may be terminated, by either party, at any.time after the third anniversary hereof, by one full City fiscal year's written notice to the other party. Executed for the CHAMBER OF COMMERCE pursuant to Resolution of the Board dated 1�cc, nit , and pursuant to authorization of the City Council for the CITY OF COLLEGE STATION, pursuant to Ordinance 1518, this , 1984. -9- :iS I a--elay of BRYAN/COLLEGE STATION CHAMBER COMMERCE ou sRe m n, Presi.ent CITY OF CQLL�F,G BY: North 4. Bardell CityMa-ager BY: Gary M. a ter, Mayor SAT I ON :' - t N: sr