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HomeMy WebLinkAboutC2007-383 - 11/13/2007 - ApprovedPage ~ of 8 AREEI~ENT DETVI~EEN THE CITY of CORPUS HRiSTi AND BAYFEST ARTS FESTIVAL INC, ~`~REDIPIENT"} CARTS AND CULTURAL Oi~IViiION HOTEL oCUPANYTA REVENUE REDIPIENT ACREE~IENT~ The State of Texas ~CNOI ALL BY THESE PRESENTS: County of Nueces This Hotel occupancy Tax Revenue RecipientAgreement ~"Agreement"} is made and entered into by ar~d hetuwroen the City of Corpus Christi, Texas borne-rule municipal corporation ~`{City'}}, acting through its duly authorised City Manager or his designee {"pity Manager"}, and BAYFEST ARTS [=ESTIAL INC~ ~"Recipient"}, ~ Texas non- profit corporation, qualified as a O~~c}~} organization under ~ UFS.C. Section Vllhereas, the City has allocated boo in Hotei Occupancy Tai revenue ~"grant funds"} to enable Recipient to perform those activities described in Exhibit ii~!! ~"Activities"}, a copy ofr~hich is attached to this Agreement and incorporated by reference; V1~hereas, City desires to encourage and fund activities that promote the arts and in doing so serve to prarnote tourism and the convention end hotel industry vuithin the City of Corpus Christi, in accordance v~ith Chapter ~1 of the Texas Tax Code; 11Uhereas Recipient desires to provide those activities that promote the arts, and in doing so serve to promote tourism and the convention and hotel industry v~ithin the City of Corpus Christi, as the pole or contributory producer of the activities described in Exhibit "A" ~"Activities}'}; Vllhereas, City has determined that there exists ~ genuine need for Recipient's Arts program in the City of Corpus Christi and wishes to encourage the production of Recipient's Arts Program through the funding of these Activities; Novo, therefore, City and Recipient agree as folios: I. Purpose. The City desires to expend funds from the City's Hotel Occupancy Tax Revenue to fund activities produced bynon-profit, community-oriented organizations, pecifical[y those programs that promote the arts and in doing so aiso promote tourism and the convention and hotel industry vtirithin the City of Corpus Christi. II. Term. This agreement commences on the 1# day of Janus , BOO and terminate on the 31 ~t da of December X008. ~~D7-~8 1 ~1131~7 X007-~5~ ~a~fest Arts ~'esti~al Page ~ of 8 lll. City's Duties. City agrees to pay Recipient ,OO out of revenue from the City of Corpus Christi's Hotel occupancy Tax fund for use in accordance ~vith Section ill belo~. In no event vuill City be liable for an amount in excess of this grant amount. Ill, Recipient's Duties. In consideration for receipt of grant funds, Recipient agrees to perform those activities described in the attached and incorporated Exhibit "A". This performance shall include those activities that are eligible forfunding under Section 35~ .10~ ~a}~4} of the Texas Tax Code and those activities that are ineligible for funding under that section of the Texas Tax Code but are inherent in and essential tv the successful production of Recipient's Activities. ~. Elllble ~lctiVltles. Ue of grant funds by Reclplent Is limited t0 those activ~tles that, v~rithout exception, meet all three of the follov~ring requirements: {A~ the activities are described in the attached and incorporated Exhibit "A" (B) tf~e activities are in fhe categories of art #hat are eligible for funding as described in Section 351.101(a)(4} of the Texas Tax Code. ~}the activities promote the arts and in doing so also promote both tourism and the convention and hotel industry utirithin the City of Corpus Christi. ill. Promotion of Tourism and the Convention and Hotel Industry. Recipient must actively promote tourism to the City and the City's hotel and convention industry as a goal of Recipient's Activities. This may be accomplished by u~ror~Cing to increase the number of out-of-tov~rn program attendees through target promotion and by corking ~vith the local Hotel-Motel and Condominium Associations. Illl. Dompletion Report. Recipientmust submitto the City's Director of Parks and Recreation ~"Director"} a completion repork ~{`Report"}, a copy of ~rhich is attached and incorporated into this Agreement by reference as Exhibit "B", no later than thirty ~~~ days follovuing the termination ofthis Agreement. The Director, or his designee, shall reviev~this Report to verify uvhetherthe grant funding provided to Recipient~rs spent in accordance pith the requirements in this Agreement. A Deer"pierr~ ~vf## rro~ be efi~rble to app#y for Grant funds irr the next calendar year if t~rat Recr`prerrt fails tv subm#~ its Report wi~#rirr thr" ~D~ days fol#owirr the terrnr`nation of this ~l~reen~ent. hr`s requirement wr`#I ~e strictly enforced. Arry reeornrr~erra~atio~ or indicatio-r by the City that Recipient may be a#r'~ib#e to app#y for Grant funds for the next oa#errdar year is contirr~en~ upon the tr`rnely submission of this Report acrd Relc~iprent ha## b dec~fared ine#i~ib#e to apply for Gra-rt funds for the ne~ct oa#endar year if Recipient fai#s to trrnely meet this requirement. The Report must include the follov~ing criteria: ~A} 1lvritten assurance to City that all Activities funded by the City served to promote the arks in the community. This shall be evidenced by providing the City Frith ~uritten description of Recipient's marketing or advertising strategy. Fi:II_~G-DIR1~eanniell_is~lAgmt-~aytestAr#sFestival.~~c Page of 8 ~B~ For all Activities funded by the pity, Recipient must submitto the pity written estimate of the number of Recipient's Arts program attendees that reside outside the territorial limits of the Oity of~orpus ~hriti. This may be accor~plished by the use of ~ visitor log, by tallying the number afoot-of town billings or by listing the out-of-town mailing addresses gathered through the ticket sales process. ~C} An estimate of the total Arts Program attendance. ~D} A statement of Recipient's Arts Program revenues and expenditures. 11! I I. Records Retention. Reci pient m ust at all tines d u ri ng the term of this Agreement, and far three years following the expiration of the Agreement, keep true, accurate, complete, and auditable records Recipient agrees to: ~A} at least annually make periodic reports to the pity of its expenditures from the Grant funds given under this agreement; and ~B make records of these expenditures available for review to the pity. I~. Disbursement of funds. Recipient understands and agrees that payment by the pity of Grant funds under this Agreement i contingent upon Recipient's full compliance with the requirements of this Agreement. Should Director determine during the Agreement's terra that Recipient has failed to cor~ply with the requirements contained in this Agreement, the Agreement i subject to termination in accordance with Section ~llll, listed below, and all Grant funds must be repaid to the pity. ~. Unexpended funds. Upon termination of this Agreement, Recipient must promptly refund to ityany unexpended Orantfunds. !. Advertising. Recipient must recognize the pity of orpu Christi as a contributor on all advertisements and publications regarding Recipient's Arts Program. Recipient must provide Directorwith a copy of all Recipient-sponsored advertising and promotion materials regarding its Activities. III. Modifications and'waivers. No provision of this Agreement may be altered, changed, modified, or waived. Ill. Relationship between Parties. Nothing in this Agreement shall constitute a partnership, point venture, or principal,agent relationship between the parties. ~I11. omplia~ce vuith Laws, Recipientshall observe and obey all applicable lags, ordinances, regulations and rules of the Federal, State, country and pity governments. This A regiment is subject to applicable provisions ofthe pity charter and the pity bode g of Ordinances. X11. hlon-discrimination. Recipient shall not discriminate, or permit discrimination against any person or group of persons, a to employment or in the provision of H:1LEG-DfRlJean~ielLisalAgmt-Bayfes~ArtsFestival.~~c Pge4of8 services, aotivities, and program. Discrimination as it pertains to this section includes discrimination on the basis of race, religion, national origin, sex, diahElity, or age, or in and other mannerthat is prohibited by the l~u of the United states orthe state of Texas. director retains the right to take action deemed necessary ay director to enforce this non-discrimination covenant. 11iol~tion of this provision u~ill resuit in the immediate termination of this Agreement X1/I. Indemnity. To the extenf allowed by Texas law, Recipient hereby fully agrees to indemnify and hold harmless the City of Corpus Christi, its officers, employees, represenfatives, licensees, and invitees ("indemnifees") against any and al! liability, damage, Loss, claims, demands, and actions of any nature due to personal Jn, juries including, but not limited to, workers' compensation and death claims, or any property Loss or damage of any kind, that arises out of or is in any manner connected with, caused by, eifher proximately or remotely, wholly or in part, or claimed to have arisen out of, been connected with, or have been caused by, any acf or omission, negligence, or misconduct on the part of Indemnitees or Recipient, or Recipient's agents, servants, employees, guests, contractors, patrons, licensees, or invitees participa#ing in or observing Recipient's Activities. Recipient furfher agrees fo indemnify and hold harmless Indemnitees in any situation in which injury or damage results from a viola#ion by the Indemnitees or Recipient, or Recipient's agents, servants, employees, guests, contractors, patrons, Licensees, or invitees, of any law, sfatute, ordinance, or government order of any kind. Further, Recipient wi11 indemnify and hold harmless Indemnitees where injury or damage results or arises out of fhe exercise or rights or performance of obligations created by this Agreemenf. These terms of indemnification are effective regardless of whether said injuries or damages result from the sole negligence, contributory negligence, or concurrent negligence of Indemnitees. Recipient must, at its own expense, investigate all claims and demands, attend to their final resolution either by settlement or otherwise, defend a!1 actions with counsel satisfactory fo Indemnitees, and pay all costs and expenses related to such actions on account of liability, damage, loss, claims, demands, or actions, including aftorney fees. ~III~. Term~na~io~. ~A} The it~r ray terminate this Agreement for and of the follov~ring reason: H:LEG-alRlJeannielLisalAgmt-8ayfestArtsFestival.d~c Page ~ of 8 ~1 }The City may immediately terminate the Agreement due to any violation by Recipient of section ~1V or~ll of this agreement. ~ The fit}~rna~terrninatethiAgreementduetofailur byth Recipient ~} .. to substantially perform the Activities descnhed ~n E~chib~t "A" Director has the sole discretion to make the determination that grant funds were used for activities that did not fa11 within the permitted applications of tax revenue under Section 1.~O~~a} of the Tax Code. The City may terminate the Agreement upon thirty ~~D}days written notice, specifying thatthe Director has determined that rantfunds were used for purposes other than those allowed under Section 3~~.~o~~a} of the Tax bode, and re wire Recipient to reimhursethe City all rantfunds award. Should q Reci ient and Director agree on a modification to the activities specified p . in ~~hibit "A" and execute a written modification in campl~ance with Section ill of this Agreement, the City will not terminate the Agreement due to Recipients failure to adhere to the original, superseded contract terms. The Cit ray terminate this Agreement due to Recipient's use of ~~ y grant funds to pay fcr activities other than those qualifying as Eligible Activities under section V ofthis Agreement. Director has the sole discretion to make the deterrninatian that rantfunds were used far activities other than those qualifying s Eligible Activities. The City may terminate the Agreement upon fourteen ~~ 4}days written notice, and require Recipient to reimhursethe Cityall rantfunds awarded. B Reci ient may terminate this Agreement without cause upon thi~y {30}days ~} p written notice to City. if Recipient chooses to terminate the Agreement, Recipient must repay all grant funds awarded, whether those funds were expended on Eligible Activities or not. ~lllii. evera~iiity. if any term or provision of this Agreement or its appiic~tion to a ersor~ or circumstance is determined to be illegal, unenforceable or invalid, the p remainder of this Agreement will not be affected by that illegality, unenforceability, or invalidit . To the extent possible, similar legal, valid, and enforceable terms will Y utor~aticall be substituted forthose that are found to be illegal, invalid, and y unenforceable. ~I~C. Force Majeure. ~~Ilith respectto any duties, obligations, or covenants r~u~no~ ic~u~~rr dire Cvrp~e~ior~ I~e~vrt refired ~y ec~ion ~ll~} to he performed, or consideration to be rovided to either party during the tern of this Agreement, the party p so obli ated shall, in no event, be liable forfailure to perform when prevented from g doin soh an pause beyond the reasonable control of that party including, uvithout g y y limitation: strike, lockout, breakdown, accident, order or regulation of any governmental authorit ,failure of supply, inability, by the exercise of reasonable diligence, to obtain Y su lies arts or em to ees necessary to perform services, or because of war, natural pp ~ p p Y disaster, or other emergency. The time when that duty, obligation, or covenant must be H:IL~~-D~ R1Jean nielLisalAgmt-BayfestArts~estivai. d~c Pageof8 performed or consideration must be provided will be extended for a period of time equivalent to the delay due to the cause beyond the control of the party obligated. 7~C. Notices. All notices, demands, requests, or replies `{communications"~ provided far or permitted under this Agreement by either perky must be in writing and must be delivered by one of the following r~ethods: ~~ }personal delivery; ~~}deposit with the United states postal service via certified or registered mail, return receipt requested, postage prepaid; ~} prepaid telegrr; ~~~ deposit with an overnight express delivery service, for which service has been prepaidr or ~5}fax transmittal. l'Votice deposited with the United states Postal service in the manner described above will be deemed effective two ~~} busioess days after deposit with the United states Postal service. Notice by telegrarr~ or overnight express delivery service in the manner described above gill be deemed effective one ~~}business day after transr~ission to the telegraph company or overnight express carrier. Notice by fax will be deemed received upon transmission with proof of delivery to the receiving party. All communications must be made to. Ifto it• City of Corpus Christi Director, Parks & Recreation P. O. Box 9277 Carpus Christi, TX 78469-9277 (361) 880-3461 If to recipient: Bayfet Arts Festival, Inc. due Iad President ~d of Trustees P.~. ~o~ 158 for u Christi Texas ~84D-~~58 ~3~~ ~ ~ ~-~~S'1_ dither party may change the address to which notice is sent by providing notice as described above. Recipient must notify pity of an address change within thirty ~~} days after Recipient's address has changed. ~Xi. 1Naivers. The failure of either party to coreplain of any act or omission on the part of the other party, no matter how long the same may continue} will not be deemed a waiver by said party of any of its rights as enumerated in this Agreement. No waiver of any covenant ar condition or breach of any covenant or condition of this Agreement by either parley at anytime, express or implied, will betaken to constitute a waiver of any subsequent breach of the covenant ar condition. Notuvithstanding any ind€~Igence of any broach by the Recipient of the provisions ofthis Agreement, it is expressly understood that the pity may at any time avail itself of its remedies under this H:ILEA-QiRl,lear~nielLis~lA~mt-BayfestArtsFestival.doc Page~of8 A reernent includin the right to terminate the Agreer~ent on acoount of breach or 9 ~ g default. X~CIi. Entire . This A regiment and all exhibits attached constitute the entire and sole i ~ ~ ~ reernent between the parties regarding the subject matterdescr~bed in this i A regiment. No otherwritten documents or oral representations wili have any foroe o~ g effect on the subject matter of this Agreement. ~C~l~I~. a tin. The oa Lions contained in this Agreer~ent are not park of this ~ p A regiment and do net in any way affect or alter the terms ofthis Agreerr~ent. ~fll. Ai nr~ent. This Agreement may nat be, in whole or in part, assigned or transferred directly or indirec#iy without prior written consent of its. Exe uteri in u licate, each of which wi11 be considered an original, on thgi ~ day p of , ~oo~. ATTEST: Armando Chapa, City Secretary ~~ ~a~~r~~~E~: ti. Lilo Aquila Assistant pity Attorney For pity Attorney STATE ~~ TEi~A ~1~l~TY ~F NUEE CI F CORPUS CHRISTI G r e K. Noe, City Manager ~~~ AUTHUI~~~~ r ~~y~Vl~f#. ^M ~irllr'f1~w••.~~!#II~RM~~ 4 l ~~ . d ed before rye on ~ ~ , ~oo~, by This ~nstrumentwas acknowle g eor e ~C. Noe, fit f~anager of the pity of corpus Christi, a Texas homgi-rule g y mu ` ipal carpo~ati on half of the corporation. t~t~Y r+~~~+ 'e,~ Notary P u b i ic, state of Texas ~ t ~ • ~~~ c~~~l~~o~ ~x~~~~s ~'` ~ ;~~~~~~ vern~r ~, 2Qf ~ Printed Name commission >~~cpires , ~oo~ H:1L~G-DIR1JeannielLisaV4gmt-Bay~esfArtsFestival.doc P~g~o#~ F R RECIPIENT Sue Mad Artistic President STATE a~ TEXAS aUNTY aF NUEE . ~ r mean , 2~a7, by Thl Intrurr~nt ~u~ ackno~ridged ~efo Sue I~ad Artistic President, BSI eat At# Fetivi Ins., ~ Te~~ nan-pra~it ~or~ar~tian, r unified es a ~a1 3 ar ani~atian under ~ U.S.Q. e~tian ~a1 ~~~~}, on behalf of the q ~ }4 ~ ~ corporation. Notary Public, State of Texas `I~~~/~/~ GLf9~/y.~ Printed Name Commission Expires ~/`~~ ~ ~,,,~,~~~,,,, ~~A~~IE H4~~AI~~ *x~w~4~,pr ~~~~ ~~ ~;' ~; ~ Notary Rubl~C, 1~atB ~f TBxaS ,~., ,:~,,~ y Com~issinno^n ~+fxpnnires ~hir~~F ni ~E~`~ ~OVBfIIIJ~f u~, i~u~ H:IL ~G-DiRIJea nnielLisalAgm#-BayfestAr~~~estivai.~oc Answer ~~e ~~~#~~~ ~~ i~:~p~ag~ o~jj~. fn the follwi s ace pisses write what you would tike the ~Irt and ulturai orr~i~ion to knovw ebout your ~'roposed Project {the project for which you are requetig fu~ndlr~g}. A#thou~h brevity i valued, clarity and compietenes ire essential! This description will be a mejor component util~~ed during the review process. I~axir~u~ ~o words, ~ point fora. fur mission statement is to enhance pride in the corpus Christi cornnr~unity by providing safe and fine festival entertainment for area residents and visitors, and in doing so, also provide an optional setting for non-profit vendors to promote successful fundrats~ng act1vlties and for festival sponsors to demonstrate their support ofthis connnunity and the event. The Children's Art Tent provides over ~i~een art projects and interactive games. It cultivates an area for children of all ethnic and socio-economic baekgrounds to experience various educational and artistic opportunities including vod sculpture and sand art. Bayfest also provides companies and organisations an invaluable "high visibility" opportunity to youth Texans and visitors to the Corpus hr~stl area. vendors, marketing representatives for various industries, ntertauner, suppliers and festival attendees one from all over the country and patronise our hotels, restaurants, and retail stores annually. The festival is posted on numerous ebsites across the country and in numerous magazines including Texas Monthly. e anticipate over 1 ,~~~ visitors this year fay our 1~ festival i ~"or 3 ~ gears Bayfest has entertained youth Texans; the three-day festival generates more than $~ million in local sales annually and since its inception in ~ ~7 more than ~ million has been earned for area charities. Bayfest provides many local non-profit organi~ativns their only opportunity to raise funds to improve the quality of life in our community, fiver ~0,00o festival volunteer hours cannot b truly calculated, but vie know that it brings camaraderie, pride and sense of community to a]l involved. ~r~ani~ation Name Ba est Arts Festival inc. Project ~~008}Name Children's Art Tent ~