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HomeMy WebLinkAboutC2009-315 - 7/28/2009 - ApprovedPage 1 of 11 AGREEMENT BETWEEN THE CITY of CORPUS CHRISTI AND SGUTH TEXAS INSTITUTE FoR THE ARTS ~"RECIPIENT"} (HOTEL OCCUPANCY TAX REVENUE RECIPIENT AGREEMENT) The State of Texas KNOW ALL BY THESE PRESENTS: County of Nueces This Hotel Occupancy Tax Revenue Recipient Agreement ~"Agreement"} is made and entered into by and between the City of Corpus Christi, a Texas home-rule municipal corporation ~"City"}, acting through its duly authorized City Manager or his designee ~"City Manager"}, and Art Museum of South Texas operated by South Texas Institute for the Arts ~"Recipient"}, a Texas non-profit corporation, qualified as a 501 ~c}~3} organization under 26 U.S.C. Section 501 ~c}~3}. Whereas, the City has allocated 340 600 in Hotel Occupancy Tax revenue ~"Grant funds"} to enable Recipient to perform those activities described in Exhibit "A" ~"Activities"}, a copy of which is attached to this Agreement and incorporated by reference; Whereas, City desires to encourage and fund activities that promote the arts and in doing so serve to promote tourism and the convention and hotel industry within the City of Corpus Christi, in accordance with Chapter 351 of the Texas Tax Code; Whereas Recipient desires to provide those activities that promote the arts, and in doing so serve to promote tourism and the convention and hotel industry within the City of Corpus Christi, as the sole or contributory producer of the activities described in Exhibit "A" ~"Activities"}; Whereas, City has determined that there exists a 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; Now, therefore, City and Recipient agree as follows: 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, specifically those programs that promote the arts and in doing so also promote tourism and the convention and hotel industry within the City of Corpus Christi. II. Term. This agreement commences on the August 1, 2009 and terminates on the July 31, 2010. III. City's Duties. City agrees to pay Recipient $340,600 out of revenue from the City of Corpus Christi's Hotel Occupancy Tax fund for use in accordance with Section IV below. In no event will City be liable for an amount in excess of this grant amount. ZOO9-315 Ord. oZ825Z ~~ f ~$ f Q~ "ax Recipient Agmt-Art Museum of South Texas.doc 50. Tx. Institute For the Arts Page 2 of 11 IV. 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 for funding under Section 351.101 ~a}~4} of the Texas Tax Code and these activities that are ineligible for funding under that section of the Texas Tax Code but are inherent in and essential to the successful production of Recipient's Activities. V. Eligible Activities. Use of grant funds by Recipient is limited to those activities that, without exception, meet all three of the following requirements: ~A} the activities are described in the attached and incorporated Exhibit "A". ~B} the activities are in the categories of art that are eligible for funding as described in Section 351.101~a}~3} and ~4} of the Texas Tax Code, copy attached as "Exhibit B". ~C} the activities promo#e both tourism and the convention and hotel industry within the City of Corpus Christi. VI. 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 working to increase the number ofout-of town program attendees through target promotion and by working with the local Hotel-Motel and Condominium Associations. VII. Completion Report. Recipient must submit to the City's Director of Management and Budget ~"Director"} a completion report ~"Repork"}, no later than thirty X30}days following the termination of this Agreement. The Director, or his designee, shall review this Report to verify whether the Grant funding provided to Recipientwas spent in accordance with the requirements in this Agreement. The Report must include the following criteria: ~A}Written assurance to City that all Activities funded by the City served to promote the arts in the community. This shall be evidenced by providing the City with a written description of Recipient's marketing or advertising strategy. ~B} For all Activities funded by the City, Recipient must submit to the City a written estimate of the number of Recipient's Arts program attendees that reside outside the territorial limits of the City of Corpus Christi. This may be accomplished by the use of a visitor log, by tallying the number of out-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. H:1LEG-DIRIJeannielLisalHQT Agreements12009 Hotel Tax Recipient Agmt-Art Museum of 5out~ Texas.doc Page 3 of 11 VIII. Records Retention. Recipient must at all times during the term of this Agreement, and for 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 City of its expenditures from the Grant funds given under this agreement; and ~B make records of these expenditures available for review to the City. lX. Disbursement of Funds. Recipient understands and agrees that payment by the City of Grant funds under this Agreement is contingent upon Recipient's full compliance with the requirements of this Agreement. Should Director determine within five years from effective date of this Agreement that Recipient has failed to comply with the requirements contained in this Agreement, the Agreement is subject to termination in accordance with Section XVIi, listed below, and all Grant funds must be repaid to the City. X. Unexpended funds. Upon termination of this Agreement, Recipient must promptly refund to City any unexpended Grant funds. XI. Advertising. Recipient must recognize the City of Corpus Christi as a contributor on ail advertisements and publications regarding Recipient's Arts Program. Recipient must provide Direc#or with a copy of all Recipient-sponsored advertising and promotion materials regarding its Activities. XII. Modifications and Waivers. No provision of this Agreement may be altered, changed, modified, or waived. Xlil. Relationship between Parties. Nothing in this Agreement shall constitute a partnership, joint venture, or principal-agent relationship between the parties. XIV. Compliance with Laws. Recipient shall observe and obey all applicable laws, ordinances, regulations and rules of the Federal, State, Country and City governments. This Agreement is subject to applicable provisions of the City Charter and the City Code of ordinances. XV. Non-discrimination. Recipient shall not discriminate, or permit discrimination against any person or group of persons, as to employment or in the provision of services, activities, and programs. Discrimination as it pertains to this section includes discrimination on the basis of race, religion, national origin, sex, disability, or age, or in any other manner that is prohibited by the laws of the United States or the State of Texas. Director retains the right to take action deemed necessary by Director to enforce this non-discrimination covenant. Violation of this provision will result in the immediate termination of this Agreement. XVI. Indemnity. To the extent allowed by Texas law, Recipient hereby fully agrees to indemnify and hold harmless the City of Corpus H:ILEG-DIR1JeannielLisaltiOT Agreements12009 Flotel Tax Recipient Agmt-Art Museum of South Texas.dac Page 4 of 11 Christi, its officers, employees, representatives, licensees, and invitees ("indemnitees") against any and all liabilitjr, damage, loss, claims, demands, and actions of any nature due to personal injuries including, but not limited to, workers' compensation and death claims, or any property loss or damage of any kind, that arises ouf of or is in any manner connected with, caused by, either proximately or remotely, wholly or in part, or claimed to have arisen out of, been connected with, or have been caused by, any actor omission, negligence, or misconduct on the part of /ndemnitees or Recipient, or Recipient's agents, servants, employees, guests, contractors, patrons, licensees, or invitees participating in or observing Recipient's Activities. Recipient further agrees to indemnify and hold harmless /ndemnitees in any situation in which injury or damage results from a violation by the /ndemnitees or Recipient, or Recipient's agents, servants, employees, guests, contractors, patrons, licensees, or invitees, of any law, statute, ordinance, or government order of any kind. Further, Recipient will indemnify and hold harmless /ndemnitees where injury or damage results or arises out of the exercise or rights or performance of obligations created by this Agreement. These terms of indemnification are effective regardless of whether said injuries or damages result from the sole negligence, contributory negligence, or concurrent negligence of /ndemnitees. Recipient must, at its own expense, investigate all claims and demands, attend to their final resolution either by settlement or otherwise, defend all actions with counsel satisfactory to /ndemnitees, and pay all costs and expenses related to such actions on account of liability, damage, loss, claims, demands, or actions, including attorney fees. xVii. Termination. (A) The City may terminate this Agreement for any of the following reasons: ~1}The City may immediately terminate the Agreement due to any violation by Recipient of section XIV or XV of this agreement. ~2} The City may terminate this Agreement due to failure by the Recipient to substantially perform the Activities described in Exhibit "A". Director has the sole discretion to make the determination that Grant funds were used for activities that did not fall within the permitted applications of tax revenue under Section 351.141~a} of the Tax Code. The City may H~1LEG-DIR1JeannielLisalHQT Agreements120Q9 Hntel Tax Recipient Agmt-Art Museum of South Texas.dac Page 5 of ~ ~ terminate the Agreement upon thirty X30}days written notice, specifying that the Director has determined that Grant funds were used for purposes other than those allowed under Section 351.101 ~a} of the Tax Code, and require Recipient to reimburse the City all Grant funds award. Should Recipient and Directar agree on a modification to the activities specified in Exhibit "A"and execute a written modification in compliance with Section XII of this Agreement, the City will not terminate the Agreement due to Recipient's failure to adhere to the original, superseded contract terms. ~3} The City may terminate this Agreement due to Recipient's use of Grant funds to pay for activities other than those qualifying as Eligible Activities under section V of this Agreement. Director has the sole discretion to make the determination that Grantfunds were used for activities other than those qualifying as Eligible Activities. The City may terminate the Agreement upon fourteen X14}days written notice, and require Recipient to reimburse the City all Grantfunds awarded. ~B} Recipient may terminate this Agreement without cause upon thirty X30}days 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. XVIII. Severability. If any term or provision of this Agreement or its application to a person or circumstance is determined to be illegal, unenforceable or invalid, the remainder of this Agreement will not be affected by that illegality, unenforceability, or invalidity. Ta the extent possible, similar legal, valid, and enforceable terms will automatically be substituted for those that are found to be illegal, invalid, and unenforceable. XIX. Force Ma~eure. With respect to any duties, obligations, or covenants (but not including the Completion Report requireaf by Section Vl!} to be performed, ar consideration to be provided to either parley during the term of this Agreement, the party so obligated shall, in no event, be liable fvr failure to perform when prevented from doing so by any cause beyond the reasonable control of that party including, without limitation: strike, lockout, breakdown, accident, order or regulation of any governmental authority, failure of supply, inability, by the exercise of reasonable diligence, to obtain supplies, parts or employees necessary to perform services, or because of war, natural disaster, or other emergency. The time when that duty, obligation, or covenant must be 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. XX. Notices. All notices, demands, requests, or replies ~"communications"} provided for or permitted under this Agreement by either party must be in writing and must be delivered by one of the following methods: ~1 }personal delivery; ~2}deposit with the United States Postal Service via certified or registered mail, return receipt requested, postage prepaid; ~3} prepaid telegram; ~4} deposit with an overnight express delivery H:ILEG-DIRIJeannielLisaIHDT Agreements120D9 Hotel Tax Recipient Agmt-Art Museum of South Texas.doc Page6of11 service, far which service has been prepaid; or ~5}fax transmittal. Notice deposited with the United States Postal Service in the manner described above will be deemed effective two ~2} business days after deposit with the United States Postal Service. Notice by telegram or overnight express delivery service in the manner described above will be deemed effective one ~1 }business day after transmission to the telegraph company or overnight express carrier. Notice by fax will be deemed received upon transmission with proof of delivery to the receiving parley. All communications must be made to: If to City: City of Corpus Christi Director, Parks & Recreation P. 4. Box 9277 Corpus Christi, TX 78469-9277 X361 } 880-3461 If to Recipient: Art Museum of South Texas operated by South Texas Institute for the Arts 1902 N. Shoreline Corpus Christi, Texas 78401 Either party may change the address to which notice is sent by providing notice as described above. Recipient must notify City of an address change within thirty X30} days after Recipient's address has changed. XXI, Waivers, The failure of either party to complain 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 or condition or breach of any covenant or condition of this Agreement by either party at any time, express or implied, will be taken to constitute a waiver of any subsequent breach of the covenant or condition. Notwithstanding any indulgence of any breach by the Recipient of the provisions of this Agreement, it is expressly understood that the City may at any time avail itself of its remedies under this Agreement, including the right to terminate the Agreement on account of breach or default. XXII, Entirety. This Agreement and all exhibits attached constitute the entire and sole agreement between the parties regarding the subject matter described in this Agreement. No otherwritten documents or oral representations will have any force or effect on the subject matter of this Agreement. H:1LEG-DlRlJeanr~ielLisaIHDT Agreements120D9 Hptei Tax Recipient Agmt-Art Museum of South Texas.tlac Page l of 11 XXIII. Captions. The captions contained in this Agreement are not a part of this Agreement and do not in any way affect or alter the terms of this Agreement. XXIV. Assignment. This Agreement may not be, in whole or in part, assigned or transferred directly or indirectly without prior written consent of City. Executed in d plicate, each of which will be considered an original, on the ~ day of , 2449. ATTEST: Armando Chapa, City Secretary CITY D~ CORPUS CHRISTI `A el R. Escobar, City Manager APPROVED: a . ~ S~ , 2009 b~ ~h Lisa Aguilar Assistant City Attorney For City Attorney FoR RECIPIENT ~~~~~ ~• STATE ~F TEXAS COUNTY of NUECES ' ~~SO~ AUTHORIZER 8~ COdRCIL .. ~ ~g„~~~ ~~~• This instrument was acknowledged before me on , 2449, by ~i~~ ,South Texas stitute for the Arts, a Texas non- profit corporation, qualified as a 541 ~c}~3} organization under 26 U.S.C. Section X41 ~c}~3}, on behalf of the corporation. ota ry P u b I ic, State of Texas ~~-~i~r~ f~~r/a Printed Name Commission Expires ~- ~- ,,~`''~rri~~'%, J~ANNIE H~~LAND `Qtiw..e• • <f~. ~~ '• : Notary Public, State of Texas J: ; h ~ My Commission expires ~~''~'~F of ~~,,'~~ November 04, 20D4 ~f~111Ii11~1 H:ILEG-DIRIJeannielLisaIHOT Agreementsl~Og9 Hotel Tax Recipient Agmt-Art Museum of South Texas.doc Page 8 of ~ ~ EXHIBfTA Descri tion of Reci. Tent's Activities H:1trEG-DIRI~eannielLisalHQT Agreements12009 Hotel Tax Recipient Agmt-Art Museum of South Texas.~oc ART MUSEUM OF SOUTH TEXAS MISSION AND ORGANIZATION 1.~1 Mission. The Mission of the South Texas Institute for the Arts the Institute, doing business as the Art Museum of South Texas, is to operate educational facilities and an art museum which advance the awareness, knowledge, appreciation and enjoyment of the visual arts for residents and visitors of South Texas. To meet its educational mission, the Institute will present a variety of programs which include classes, lectures, f lms, performances and other activities which inspire community interest in the visual arts. These programs will be offered at the Art Museum of South Texas, the Antonio E. Garcia Arts and Education Center, and other outreach venues that serve the I nstitute's mission. In operating an art museum, the Institute will actively collect, conserve, exhibit, research and interpret outstanding works of visual art with particular interest in art of the Americas and of the region. 1.2 ~ eratin Princi les. The Institute shall operate in accordance with the following principles. - Place education in its broadest sense at the center of its public service role; - Seek the highest quality within all program offerings to serve the diverse audiences living in the South Texas r~gian; - Reflect the diversity of our society by establishing and maintaining a broad constituency of leadership, patronage and public programming; - Assure the interpretive process manifests a variety in cultural and intellectual perspectives and reflects the diversity of the institute's public; - Engage in active, ongoing collaborative efforts.with a wide spectrum of or anizations and individuals who can contribute to the expansion of the 9 Institute's public dimension; - Maintain diversity among trustees, staff and volunteers to assure a breadth of perspective throughout the organization; - Commit leadershi and financial resources to maintain annual operating p needs. The Art Museum of South Texas is the only major fine arts museum within 150 mile radius of Co us Christi. Founded in 1945, the Art Museum of South Texas moved from South Bluff Park to the Philip Johnson designed building on the Corpus Christi bay front in 1972. In 1995 the Museum became affiliated with Texas A&MUniversity-Corpus Christi. Two ears later the Museum merged with the Creative Arts Center and the Y Center for His anic Arts, creating the South Texas Institute for the Arts. In 200b the p Le orreta win was com feted bringing the museum to a total of 60,000 square feet of g g p alle s ace, a restaurant, gift shop, offices, the digital class room and additional g rY P stora e. Additionally, the Museum provides programs at the Antonio E. Garcia Arts g . Education Center on Agnes Street. The Art Museum of South Texas receives over ~~ ~- - 55,000 visitors annually. The Museum's focus on art education for children and adults as .well as making available for view important and inspirational works of art, makes the Art Museum of South Texas a destination for both local families and visitors to the South Texas regYOn. The Permanent Collection is the Institute's most significant asset. The collection is comprised of over 1,500 works of art including painting, sculpture, drawing, Kota a h , rintmaking, ceramics, fabric, and fine craft. In 1994, the Museum Board p ~'pYp revised its mission to lace an emphasis on developing a comprehensive collection of p works b artists associated with the state of Texas and art of the Americas. Museum staff y a ressivel seeks art created in the region. The Permanent Collection increases by gg Y a roximatel 50 works er ear. In 2001, the Collection doubled with the addition of Pp Y P y 900 aintin s, Tints, drawings, and collages from the estate of recognized Texas artist, P gP the late Dorothy Hood. The Art Museum presents 12 to 15 exhibitions per year. The annual exhibit calendar re ularl airs contem orary presentations with more conventional exhibits of traditional g YP P ima es such as western andlor wildlife art. The Museum typically presents art of ~ . re tonal, state, national and international interest, looking for a balance of artistic media g b resentin aintin and sculpture, craft, pr~ntrnaking and photography, drawings and YP gp g installation art. Other exhibits are co-organized with Texas A&M University • Corpus Christi faculty, sharing gallery space. Page 9 of 11 EXHIBIT B Texas Tax Code § 351.101. USE OF TAX REVENUE. a} Revenue from the municipal hotel occupancy tax may be used only to promote tourism and the convention and hotel industry, and that use is limited to the following: ~1 } the acquisition of sites for and the construction, improvement, enlarging, equipping, repairing, operation, and maintenance of convention center facilities or visitor information centers, or both;. ~~} the furnishing of facilities, personnel, and materials far the registration of convention delegates or registrants; ~3} advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; ~4} the encouragement, promotion, improvement, and application of the arts, including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major art forms; ~5} historical restoration and preservation projects o~r activities or advertising and conducting solicitations and promotional programs to encourage tourists and convention delegates to visit preserved historic sites or museums: ~A} at or in the immediate vicinity of convention center facilities or visitor information centers; or ~B} located elsewhere in the municipality or its vicinity that would be frequented by tourists and convention delegates; ~6} for a municipality located in a county with a population of one million or less, expenses, including promotion expenses, directly related to a sporting event in which the majority of participants are tourists who substantially increase economic activity at hotels and motels within the municipality ar its vicinity; and ~7} subject to Section 351.1476, the promotion of tourism by the enhancement and upgrading of existing sports facilities orfields, including facilities or fields for baseball, softball, soccer, and flag football, if: ~A} the municipality owns the facilities or fields; ~B} the municipality: ~i} has a population of 80,000 or more and is located in a county that has a population of 350,000 or less; or iii} has a population of at least 65,000 but not more than 70,000 and is located in a county that has a population of 155,040 or less; and ~C} the sports facilities and fields have been used, in the preceding calendar year, a combined total of more than 1 o times for district, state, regional, or national sports tournaments. H:ILEG-DIR1JeannielLisaIH4T Agreements12DQ9 Hotel Tax Recipient Agmt-Art Museum of Sauth Texas.doc Page 10 of 11 (b) Revenue derived from the tax authorized by this chapter shall be expended in a manner directly enhancing and promoting tourism and the convention and hotel industry as permitted by Subsection (a). That revenue may not be used for the general revenue purposes or general governmental operations of a municipality. ~c} The governing body of a municipality by contract may delegate to a person, including another governmental entity or a private organization, the management or supervision of programs and activities funded with revenue from the tax authorized by this chapter. The governing body in writing shall approve in advance the annual budget of the person to which it delegates those functions and shall require the person to make periodic reports to the governing body at least quarterly listing the expenditures made by the person with revenue from the tax authorized by this chapter. The person must maintain revenue provided from the tax authorized by this chapter in a separate account established for that purpose and may not commingle that revenue with any other money. The municipality may not delegate to any person the management or supervision of its convention and visitors programs and activities funded with revenue from the tax authorized by this chapter other than by contract as provided by this subsection. The approval by the governing body of the municipality of the annual budget of the person to whom the governing body delegates those functions creates a fiduciary duty in the person with respect to the revenue provided by the tax authorized by this chapter. ~d} A person with whom a municipality contracts under this section to conduct an activity authorized by this section shall maintain complete and accurate financial records of each expenditure of hotel occupancy tax revenue made by the person and, on request of the governing body of the municipality or other person, shall make the records available for inspection and review to the governing body or other person. fie} Hotel occupancy tax revenue spent for a purpose authorized by this section maybe spentfor day-to-day operations, supplies, salaries, office rental, travel expenses, and other administrative costs only if those administrative costs are incurred directly in the promotion and servicing expenditures authorized under Section 351.101 ~a}. If a municipal or other public or private entity that conducts an activity authorized under this section conducts other activities that are not authorized under this section, the portion of the total administrative casts of the entity for which hotel accupancy tax revenue may be used may not exceed the portion of those administrative costs actually incurred in conducting the authorized activities. ~f} Municipal hotel occupancy tax revenue may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. H:ILEG-DER1JeannielLisal~GT Agreements12t7D9 Hotel Tax Recipient Agmt-Art Museum of South Texas.doc Page 11 of 11 (g) Nothing in this section shall prohibit any private entity, person, or organization from making subgrants by contract to any other person, entity, or private organization for expenditures under Section 351.101(a)(4). A subgrantee shall: ~1} at least annually make periodic reports to the governing body of its expenditures from the tax authorized by this chapter; and ~2} make records of these expenditures available for review to the governing body or other person. Added by Acts 1987, 70th Leg., ch.191, ~ 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 2, § 14.24~a}, eff. Aug. 28,1989; Acts 1989, 71st Leg., ch. 1110, § 4, eff. ~ct.1,1989; Acts 1993, 73rd Leg., ch. 680, § 3, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch.1027, § 1, eff. Aug. 28,1995; Acts 2001, 77th Leg., ch. 755, § 1, eff. June 13, 2001; Acts 2001, l7th Leg., ch. 1308, § 3, eff. June 1 G, 2001; Acts 2003, 78th Leg., ch. 209, § 90, eff. pct. 1, 2043; Acts 2003, 78th Leg., ch. 303, § 1, eff. June 18, 2003; Acts 2005, l9th Leg., ch. 1247, § 1, eff. June 18, 2005. H:II.EG-DlRl~eanniell.isalHQT Agreements120D9 Hotel Tax Recipient Agmt Art Museum of South Texas.doc