HomeMy WebLinkAboutC2009-320 - 7/28/2009 - ApprovedPage 1 of 12
AGREEMENT BETWEEN THE CITY of CORPUS CHRISTI AND
TEXAS STATE MUSEUM of ASIAN CULTURE5 AND EDUCATION CENTER
~"RECIPIENT"~
(HOTEL OCCUPANCY TAX REVENUE
RECIPIENT AGREEMENT)
The State of Texas
County of Nueces
KNOW ALL BY THESE PRESENTS:
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 Texas State Museum of Asian Cultures and Education Center
~"Recipient"}, a Texas non-profit corporation, qualified as a 501 ~c}~3} organization
under 25 U.S.C. Section 501~c}~3}.
Whereas, the City has allocated 30 000.00 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 by non-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 1st day of August, 2009 and terminates
on the 31 day of July, 2010.
2009-320
Urd. 025252
07/28/09
Tx. St. Museum of Asian Cultures
Cax Recipient Agmt-Texas State Museum of Asian Cultures.~oc
Page ~ of 1 ~
III. City's Duties. City agrees to pay Recipient $3o,ogg 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.
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 forfunding under Section
351.101 ~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 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 promote 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 maybe accomplished by working to increase fhe
number of out-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 ~"Report"}, 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 Recipient~was 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.
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~D} A statement of Recipient's Arts Program revenues and expenditures.
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.
IX. Disbursement of Funds. Recipient understands and agrees that payment by the
City ofi 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 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.
XII. Modifications and I~Ilaivers. No provision of this Agreement may be altered,
changed, modified, or waived.
XIII. 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. .
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XVI. Indemnity. To the extent allowed by Texas law, Recipient hereby
fully agrees to indemnify and hold harmless the City of Corpus
Christi, its officers, employees, representatives, licensees, and
invitees ("indemnitees") against any and all liability, damage,. loss,
claims, demands, and actions of any nature due fo personal injuries
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, either proximately or
remotely, wholly or in part, or claimed to have arisen out of, been
connected with, or have been caused by, any act or omission,
negligence, or misconduct on the part of Indemnitees 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 Indemnitees 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 ii~s 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.
XVli. 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 Gity 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
H:1~EG-DIR1~eannielLisaINOT Agreemen#s12D09 Hatel Tax Recipient Agmt-Texas State Museum of Asian Cul#ures.doc
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used for activities that did not fall within the permitted applications of tax
revenue under Section 351.101~a} of the Tax Code. The City may
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 Director 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 Grant funds 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 Grant funds awarded.
~B} Recipient may terminate this Agreement without cause upon thirty X30} days
written notice to City. !f 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. 1f any term or provision of this Agreement or its application to a
person yr circumstance is determined to be illegal, unenforceable or invalid, the
remainder ofthis Agreement will not be affected by that illegality, unenforceability, or
invalidity. To 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 Nlajeure. With respect to any duties, obligations, or covenants (but not
including the Completion Report requireaf by Section Vl~) to be performed, or
consideration to be provided to either party during the term ofthis Agreement, the party
so obligated shall, in no event, be liable for 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 fallowing methods: ~1 }personal delivery; ~2}deposit with the
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United States Postal Service via certified or registered mail, return receipt requested,
ostage prepaid; ~3} prepaid telegram; ~4} deposit with an overnight express delivery
p .
service, for 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 abovr~
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 party. All communications must be
made to:
if to City:
City of Carpus Christi
Director, Parks & Recreation
P. ~. Box 9277
Corpus Christi, TX 78469-9277
X361 } 880-3461
If to Recipient:
Texas State Museum of Asian CuMtures and Education Center
1809 N. Chaparral St.
Corpus Christi, Texas 78401
X361 } 882-2641
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.
xXl. 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 b said art of any of its rights as enumerated in this Agreement. Na waiver of
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an covenant or condition or breach of any covenant or condition of this Agreement by
.y
ether art at an t1me, express or implied, will be taken to constitute a waiver of any
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subse uent breach of the covenant or condition. Notwithstanding any indulgence of
q ..
an breach by the Reciprent of the provisions of this Agreement, ~t ~s expressly
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understood that the City may at any time avail itself of its remedies under this
A reement, including the right tv terminate the Agreement on account of breach or
9
default.
XXII. Entire .This Agreement and ali exhibits attached constitute the entire and sole
tY
a reement between the parties regarding the subject matter described in this
9
A reement. No otherwritten documents or oral representat~ans will have any force or
9
effect on the subject matter of this Agreement.
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XXIII, Captions. The captions contained in this Agreement are not a part of this
Agreement and do nat 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 duplicate, each of which will be considered an original, on the day
of , 2009.
ATTEST: CITY ~F CCRPUS CHRISTI
Armando Chapa, City cretary `A el .Escobar, City Manager
APPR~VED::~ .~~ 2009
q ~ -
Y AUTNURIC~4
Lisa Aguilar
Assistant City Attorney ~'••~"`•~ k
For City Attorney
FOR RECIPIENT
Catherine Lacroix
Director
H:1LEG-DkRlJeannielLisalHOT Agreements12a49 Hotel Tax Recipient Agmt-Texas State Museum of Asian Cultures.doc
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STATE ~F TEXAS
COUNTY ~F NUECES
016, aa~ y
This instrument was acknowledged before me on - 049, by
Catherine LaCroix, Director, Texas State Museum of Asian Cultures and E cation
Center, a Texas non-profit corporation, qualified as a 541 ~c}~3} organization under ~6
U.S.C. Section 541 ~c}~3}, on behalf of the corporation.
ary Public, State of Texas
Printed Name
Commission Expires ~ ~-
JEANNI~ H4L~AND
~atary Public, State of Texas
~y Commission expires
November 04, 2x09
w,`~~~• • i vqi~' w
:~ ~~
., x
w ~
•'~i+ . ~:
rr,9l~-~~ ~p~`a
Ii:IL~G-DIRI.~eannielLisalHOT Agreementsl24~9 Hotel Tax Recipient Agmt-Texas State Museum of Asian Cultures.dac
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EXHIBIT A
Description of Recipient's Activities
H:ILEG-DIRIJeannielLisaIHOT Agreementsl~o~9 Hotel Tax Recipient Agmt-Texas State Museum of Asian Cultures.dac
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b} A statement of the purposelgvais & objectives for your organization, an
organization chart, and a descriptive of all services provided during the current
fiscal year and the year for which funding is requested.
The missiol~ of our non-prof t o~~ganization is to promote an awareness a.~~d understanding
of Asian cultures through educational programming and attached is a copy of our Mission
of Education.
In addition to our education field tours for the schools in the Corpus Christi and Coastal
Bend areas, TSMAC is involved in the Upward Bound high school senior program which
includes educational field trip programs far students during the summer months' groups
from as far north as Missouri, from west Texas as far as Laredo and El Paso, and the
entire Coastal Bend, all the way down to Brownsville. TSMAC has worked with the City
Parks & Recreation Department by reducing the admission cost to bring in Upward
Bound and Weed & Seed groups about once a week.
Texas State Museum of Asian Cultures
& Education Center E_m~~: ~~;~.s~d~@~a>>.~om
~9 No. Chaparral St. • Corpus Christi, Texas 78401 • (361) 882-2641 /FAX (361) 882-5718
Dear Educator:
The purpose of this setter is to remind you of the educational opportunities provided by the Texas State
Museum of Asian Cultures. The mission of our non-profit organization is to promote an awareness and
understanding of Asian cultures through education programming.
The Museum offers on-site tours and outreach programs tailored to the needs of all age and ability groups.
~n-Site Tours Include:
• Introducing the beauty, wonder and divergency of Asian culture and art during an annotated
walkthrough
• Reading or storytelling Asian folktales, stories and multicultural selections
• Hands-an activities such as origami, calligraphy, games, use of chopsticks, and dressing in Asian
clothing
4n-Site Programs:
Programs are one and one-half hours long. Content can be tailored to the specific needs of the group, whether
the class is studying a particular country, aspect of culture, or historical period.
Tours are $4.QQ per student for a minimum of 25 students and $2.QQ per accompanying adult... For groups of
fewer than ~~ students, the charge is $1 QQ. Do.
outreach is a "carry in" program without the advantage of the Museum tour. The staff provides the same
educational and hands-on activities. Groupings and time allotted in the "on campus" setting is decided between
the contact person and the Museum staff.
Outreach fees are $2.QQ per student with a minimum of 54 students. For groups of fewer than 50 students, the
charge is $1 QQ.DO. For schools outside the city limits, gasoline reimbursement will be required.
Catherine Lacroix, Executive Director Sandra Lujan, Director of Education
A TAX EXEMPT NON-PROFIT MUSEUM ~- IRS #~3-7349Q$5
The Harbor Playhouse provides year round live theatrical
performances ranging from small studio productions to large major
musical productions. These productions are mounted by a very small paid
staff and a large population of volunteers. In addition to our very
aggressive season we provide quality theatre education classes. These
classes include, but are not limited to, acting ,music, dance, and
production for all children ages 4 years old through 18 years old. The
Harbor Playhouse is a vital cultural asset to the Coastal Bend Community.
Through out the year we offer The Family Entertainment Series which is
designed to provide live theatrical performances appropriate for alb ages.
Included in The Family Entertainment Series is PLAYtime (Performing Live
Art for Youth) in which students are brought to our theater and witness the
magic of live theatre at a price that makes it accessible to all education
venues.
Page 10 of 12
EXH#B#T 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;
~Z} the furnishing of facilities, personnel, and materials for 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 or 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 or its vicinity; and
~7} subject to Section 351.1416, the promotion of tourism by the
enhancement and upgrading of existing sports facilities or fields, including facilities or
fields for baseball, softball, soccer, and flag football, if:
~A} the municipality awns the facilities or fields;
~B} the municipality:
~i} has a population of 80,400 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 65,004 but
not mare than 70,040 and is located in a county that has a
population of 155,000 or less; and
~C} the sports facilities and fields have been used, in the
preceding calendar year, a combined total of more than 10 times for district, state,
regional, or national sports tournaments.
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(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 autharized 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 th is chapter.
~d} A person with whom a municipality contracts under this section to con uct 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 may be
spent for 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 costs of the entity for which hotel occupancy tax revenue may be
used may not, exceed the portion of those administrative costs actually incurred in
conducting the autharized 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.
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fig} 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, 77th Leg., ch. 1308, § 3, eff. June 16, 2401; Acts 2003,
78th Leg., ch. 209, § 90, eff. ~ct.1, 2003; Acts 2003, 78th Leg., ch. 303, § 1, eff. June
18, 2003; Acts 2005, 79th Leg., ch. 1247, § 1, eff. June 18, 2005.
H:ItwEG-DiRlJeanniell_isa1HOT Agreements1~009 Hotel Tax Recipient Agmt-Texas State Museum of Asian Cultures.doc